
[Federal Register: December 3, 2009 (Volume 74, Number 231)]
[Rules and Regulations]               
[Page 63503-63530]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03de09-8]                         


[[Page 63503]]

-----------------------------------------------------------------------

Part II





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Part 63



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


[[Page 63504]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2008-0053; FRL-8983-5]
RIN 2060-AN47

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is issuing national emission standards for control of 
hazardous air pollutants (HAP) for the Paints and Allied Products 
Manufacturing area source category. The final rule establishes emission 
standards in the form of management practices for volatile HAP, and 
emission standards in the form of equipment standards for particulate 
HAP. The emissions standards for new and existing sources are based on 
EPA's determination as to what constitutes the generally available 
control technology or management practices (GACT) for the area source 
category.

DATES: This final rule is effective on December 3, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2008-0053. All documents in the docket are listed in the 
Federal Docket Management System index at http://www.regulations.gov 
index. Although listed in the index, some information is not publicly 
available, e.g., confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy form. Publicly available docket materials are available 
either electronically in http://www.regulations.gov or in hard copy at 
the EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301 
Constitution Ave., NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.

FOR FURTHER INFORMATION CONTACT: Melissa Payne, Regulatory Development 
and Policy Analysis Group, Office of Air Quality Planning and Standards 
(C404-05), Environmental Protection Agency, Research Triangle Park, 
North Carolina 27711, telephone number: (919) 541-3609; fax number: 
(919) 541-0242; e-mail address: payne.melissa@epa.gov.

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

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document?
    C. Judicial Review
II. Background Information for This Final Rule
III. Summary of Changes Since Proposal
    A. Applicability
    B. Standards and Compliance Requirements
    C. Reporting and Recordkeeping Requirements
    D. Definitions
    E. Other
IV. Summary of Final Standards
    A. Do these standards apply to my source?
    B. When must I comply with these standards?
    C. What processes does this final rule address?
    D. What are the emissions control requirements?
    E. What are the initial compliance requirements?
    F. What are the continuous compliance requirements?
    G. What are the notification, recordkeeping, and reporting 
requirements?
V. Summary of Comments and Responses
    A. Applicability
    B. Compliance/Implementation Dates
    C. De Minimis Thresholds and Subcategorization
    D. Emission Standards and Management Practices
    E. Testing, Monitoring, and Inspection Requirements
    F. Reporting and Recordkeeping Requirements
    G. Baseline Emissions and Emission Reductions
    H. Title V Requirements
VI. Impacts of the Final Standards
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. General Information

A. Does this action apply to me?

    The regulated categories and entities potentially affected by this 
final rule are shown in the table below. You are subject to this 
subpart if you own or operate a facility that performs paints and 
allied products manufacturing that is an area source of hazardous air 
pollutant (HAP) emissions and processes, uses, or generates materials 
containing the following HAP: benzene, methylene chloride, and 
compounds of cadmium, chromium, lead, and nickel.
    The paints and allied products manufacturing area source rule 
(CCCCCCC) covers all coatings, but does not include resin 
manufacturing, which is covered by the chemical manufacturing area 
source standard (VVVVVV). Facilities that manufacture both resins and 
coatings are required to comply with both rules. Paints and allied 
products are defined in Sec. 63.11607 as any material such as a paint, 
ink, or adhesive that is intended to be applied to a substrate and 
consists of a mixture of resins, pigments, solvents, and/or other 
additives. Typically, the industries that manufacture these products 
are described by Standard Industry Classification (SIC) codes 285 or 
289 and North American Industry Classification System (NAICS) codes 
3255 and 3259 and are produced by physical means, such as blending and 
mixing, as opposed to chemical synthesis means, such as reactions and 
distillation. The source category does not include the following: (1) 
The manufacture of products that do not leave a dried film of solid 
material on the substrate, such as thinners, paint removers, brush 
cleaners, and mold release agents; (2) the manufacture of electroplated 
and electroless metal films; (3) the manufacture of raw materials, such 
as resins, pigments, and solvents used in the production of paints and 
allied products; \1\ and (4) activities by end users of paints or 
allied products to ready those materials for application.
---------------------------------------------------------------------------

    \1\ Production of paint thinners and paint remover is covered 
under the Industrial Organic Chemical Manufacturing Area Source 
NESHAP, and electroplated and electroless metal films are covered 
under the Plating and Polishing Operations Area Source NESHAP. 
Resins manufacturing is covered under the Plastic Materials and 
Resins Manufacturing Area Source NESHAP and pigments manufacturing 
is covered under the Inorganic Pigment Manufacturing Area Source 
NESHAP.

[[Page 63505]]



------------------------------------------------------------------------
                                   NAICS  code    Examples of regulated
             Category                  \2\              entities
------------------------------------------------------------------------
Paint & Coating Manufacturing....       325510  Area source facilities
                                                 engaged in mixing
                                                 pigments, solvents, and
                                                 binders into paints and
                                                 other coatings, such as
                                                 stains, varnishes,
                                                 lacquers, enamels,
                                                 shellacs, and water
                                                 repellant coatings for
                                                 concrete and masonry.
Adhesive Manufacturing...........       325520  Area source facilities
                                                 primarily engaged in
                                                 manufacturing
                                                 adhesives, glues, and
                                                 caulking compounds.
Printing Ink Manufacturing.......       325910  Area source facilities
                                                 primarily engaged in
                                                 manufacturing printing
                                                 inkjet inks and inkjet
                                                 cartridges.
All Other Miscellaneous Chemical        325998  Area source facilities
 Product and Preparation                         primarily engaged in
 Manufacturing.                                  manufacturing indelible
                                                 ink, India ink writing
                                                 ink, and stamp pad ink.
------------------------------------------------------------------------

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

    \2\ North American Industry Classification System.
---------------------------------------------------------------------------

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

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

C. Judicial Review

    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review 
of this final rule is available only by filing a petition for review in 
the United States Court of Appeals for the District of Columbia Circuit 
by February 1, 2010. Under section 307(b)(2) of the CAA, the 
requirements established by this final rule may not be challenged 
separately in any civil or criminal proceedings brought by EPA to 
enforce these requirements.
    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an 
objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review.'' This section also 
provides a mechanism for EPA to convene a proceeding for 
reconsideration, ``[i]f the person raising an objection can demonstrate 
to EPA that it was impracticable to raise such objection within [the 
period for public comment] or if the grounds for such objection arose 
after the period for public comment (but within the time specified for 
judicial review) and if such objection is of central relevance to the 
outcome of the rule.'' Any person seeking to make such a demonstration 
to us should submit a Petition for Reconsideration to the Office of the 
Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the 
person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT 
section, and the Associate General Counsel for the Air and Radiation 
Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.

II. Background Information for This Final Rule

    Section 112(d) of the Clean Air Act requires EPA to establish 
national emission standards for hazardous air pollutants (NESHAP) for 
both major and area sources of HAP that are listed for regulation under 
CAA section 112(c). A major source emits or has the potential to emit 
10 tons per year (tpy) or more of any single HAP or 25 tpy or more of 
any combination of HAP. An area source is a stationary source that is 
not a major source.
    Section 112(k)(3)(B) of the CAA calls for EPA to identify at least 
30 HAP which, as the result of emissions from area sources, pose the 
greatest threat to public health in the largest number of urban areas. 
Section 112(c)(3) requires EPA to list sufficient categories or 
subcategories of area sources to ensure that area sources representing 
90 percent of the emissions of the 30 urban HAP are subject to 
regulation. EPA implemented these provisions in 1999 in the Integrated 
Urban Air Toxics Strategy, (64 FR 38715, July 19, 1999). Specifically, 
in the Strategy, EPA identified 30 HAP that pose the greatest potential 
health threat in urban areas, and these HAP are referred to as the ``30 
urban HAP.'' A primary goal of the Strategy is to achieve a 75 percent 
reduction in cancer incidence attributable to HAP emitted from 
stationary sources.
    Under CAA section 112(d)(5), we may elect to promulgate standards 
or requirements for area sources ``which provide for the use of 
generally available control technologies or management practices (GACT) 
by such sources to reduce emissions of hazardous air pollutants.'' 
Additional information on GACT is found in the Senate report on the 
legislation (Senate Report Number 101-228, December 20, 1989), which 
describes GACT as:

    * * * methods, practices and techniques which are commercially 
available and appropriate for application by the sources in the 
category considering economic impacts and the technical capabilities 
of the firms to operate and maintain the emissions control systems.

Consistent with the legislative history, we can consider costs and 
economic impacts in determining GACT. This is particularly important 
when developing regulations, like this one, that may impact many small 
businesses, as defined by the Small Business Administration.
    Determining what constitutes GACT involves considering the control 
technologies and management practices that are generally available to 
the area sources in the source category. We also consider the standards 
applicable to major sources in the same industrial sector to determine 
if the control technologies and management practices are transferable 
and generally available to area sources. In appropriate circumstances, 
we may also consider technologies and practices at area and major 
sources in similar categories to determine whether such technologies 
and practices could be considered generally available for the area 
source category at issue. Finally, as noted above, in determining GACT 
for a particular area source category, we

[[Page 63506]]

consider the costs and economic impacts of available control 
technologies and management practices on that category.
    We are promulgating these national emission standards in response 
to a court-ordered deadline that requires EPA to issue standards for 
categories listed pursuant to section 112(c)(3) and (k) by November 16, 
2009 (Sierra Club v. Johnson, no. 01-1537, D.D.C., March 2006).

III. Summary of Changes Since Proposal

    This final rule contains several revisions and clarifications to 
the proposed rule made after considering public comments. The following 
sections present a summary of the changes to the proposed rule. We 
explain the reasons for these changes in detail in the summary of 
comments and responses (section V of this preamble).

A. Applicability

    We made several changes to clarify the applicability of this final 
rule. Specifically, we have clarified that the final rule does not 
include retail and commercial paints and allied products operations 
which add and mix pigments to pre-manufactured products per customer 
specifications.
    We have revised the definition of ``paints and allied products 
manufacturing'' to exclude activities by end users of paints and allied 
products to ready those materials for application. We have also revised 
the definition of ``paints and allied products manufacturing process'' 
to exclude weighing, mixing, tinting, blending, diluting, stabilizing, 
or any other handling of these paints and allied products to ready 
these materials for use by end users.
    Furthermore, we clarified the types of operations by end users that 
are not covered by this area source category. An end user is someone 
who applies a coating to substrate, similar to the Miscellaneous 
Coating Manufacturing major source rule (40 CFR part 63, subpart 
HHHHH). The final rule does not apply to activities conducted by end 
users of coating products in preparation for application (68 FR 69164, 
December 11, 2003). Thus, operations that modify a purchased coating 
prior to application at the purchasing facility are not included in the 
Paints and Allied Products Manufacturing area source category; this 
would apply only if the purchased product is already a coating that an 
end user could apply as purchased. The activities and operations 
described above are not subject to today's rule because they were not 
part of the listed source category under CAA section 112(c)(3).
    In the proposed rule, we proposed that the affected source include 
the entire facility if the facility emitted any of the paints and 
allied products manufacturing target HAP. Specifically, under the 
proposal, all process vessels at the facility would be subject to the 
standards if any emissions source at the facility emitted one of the 
paints and allied products manufacturing target HAP. \3\ After 
consideration of public comments, we modified the scope of 
applicability of this final rule, and we made several changes to 
clarify the applicability provisions. The most significant change is 
that only process vessels that emit one or more of the target HAP are 
subject to the rule.
---------------------------------------------------------------------------

    \3\ In this preamble, we use the term ``target HAP'' to mean the 
urban HAP for which the paints and allied products manufacturing 
source category is listed under section 112(c)(3). Those HAP are 
benzene, methylene chloride, and compounds of cadmium, chromium, 
lead, or nickel. Further, the regulations define ``materials 
containing HAP'' to mean a material containing any of the target HAP 
in amounts greater than or equal to 0.1 percent by weight, as shown 
in formulation data provided by the manufacturer or supplier. See 
63.11607.
---------------------------------------------------------------------------

B. Standards and Compliance Requirements

    We have made several changes to the standards for paints and allied 
products manufacturing. For the metal HAP standards, we have revised 
the requirement to conduct an initial visible emission test by changing 
the test method from Method 9 to Method 203C. In addition we have 
revised the opacity standard from 5 percent opacity to 10 percent 
opacity. We have also removed the requirement to conduct additional 
visible emissions tests every six months. Instead, we have added 
quarterly Method 22 visible emission observations.
    We have also extended the initial particulate control device 
testing date from 60 days to 180 days from the compliance date for an 
existing source, and 180 days of start-up of a new system.
    We have removed the requirement to cover all process tanks with a 
lid or cover. Instead, only process vessels that contain benzene or 
methylene chloride will be required to be covered. In addition, we have 
added a provision to allow operators to open any vessel only to the 
extent necessary for quality control testing and product sampling, 
addition of materials, or product removal.

C. Reporting and Recordkeeping Requirements

    We have revised Sec.  63.11603, ``What are my notification, 
reporting, and recordkeeping requirements?'' of this final rule to 
revise the submittal dates for the Initial Notification of 
Applicability and Notification of Compliance Status reports. We have 
extended the initial notification of applicability from 120 days after 
publication of the final rule in the Federal Register to 180 days after 
publication of the final rule in the Federal Register.

D. Definitions

    We have made several changes to the final rule definitions in Sec.  
63.11607, ``What definitions apply to this subpart?'', and have added 
definitions for other terms used in this final rule. We added 
definitions for construction, dry particulate control device, 
responsible official, and wet particulate control device. We have 
revised the definition of paints and allied products, paints and allied 
products manufacturing, and paints and allied products manufacturing 
process.

E. Other

    We corrected several typographical errors that appeared in various 
sections of the proposed rule.

IV. Summary of Final Standards

A. Do these standards apply to my source?

    This final rule (subpart CCCCCCC) applies to new or existing paints 
and allied products manufacturing operations which are area sources of 
one of the target hazardous air pollutants (HAP) and that process, use, 
or generate materials containing one or more of the following target 
HAP: Benzene, methylene chloride, and compounds of cadmium, chromium, 
lead, and nickel. ``Material containing HAP'' is defined in the 
regulations as any material that contains benzene, methylene chloride, 
or compounds of cadmium, chromium, lead, or nickel, in amounts greater 
than or equal to 0.1 percent by weight, as shown by the manufacturer or 
supplier, such as in the Material Safety Data Sheet (MSDS) for the 
material.
    In the proposed rule, we proposed that the affected source include 
the entire facility if the facility processes, uses, or generates any 
of the target HAP. Specifically, under the proposed rule, if the 
facility processes, uses, or generates any of the target HAP, then they 
would be required to control all HAP that is processed, used, or 
generated at the facility. In response to comments, we

[[Page 63507]]

have revised the final rule to define the affected source as only those 
processes that process, use, or generate the target HAP. In the 
proposed rule, we proposed that the affected source include the entire 
facility if the facility emitted any of the target HAP. Specifically, 
under the proposal, all paints and allied products manufacturing 
processes at the facility would be subject to the standards if any 
emissions source at the facility emitted one of the target HAP. In 
response to comments, we narrowed the scope of applicability of this 
final rule, and we made several changes to clarify the applicability 
provisions. The most significant change is that only those process 
units that emit one or more of the target HAP are subject to the rule. 
The final rule further specifies that each process vessel that emits 
one of the target HAP is subject only to requirements that apply to the 
same type of target HAP that triggered applicability, not requirements 
for all types of HAP. For example, a process vessel that uses only one 
or more target metal HAP (i.e., compounds of cadmium, chromium, lead, 
or nickel) is required to control all CAA section 112(b) metal HAP. 
Similarly, a process vessel that uses only target volatile HAP (i.e., 
benzene or methylene chloride) is required to control all CAA section 
112(b) volatile HAP.
    Paints and allied products manufacturing operations include the 
production of paints, inks, adhesives, stains, varnishes, shellacs, 
putties, sealers, caulks, and other coatings from raw materials, the 
intended use of which is to leave a dried film of solid material on a 
substrate. Typically, the manufacturing industries that produce these 
materials are described by SIC codes 285 or 289 and NAICS codes 3255 
and 3259 and are produced by physical means, such as blending and 
mixing, as opposed to chemical synthesis means, such as reactions and 
distillation. Paints and allied products manufacturing does not 
include: (1) The manufacture of products that do not leave a dried film 
of solid material on the substrate, such as thinners, paint removers, 
brush cleaners, and mold release agents; (2) the manufacture of 
electroplated and electroless metal films; (3) the manufacture of raw 
materials, such as resins, pigments, and solvents used in the 
production of paints and coatings; and (4) activities by end users of 
paints or allied products to ready those materials for application. 
Quality assurance and quality control laboratories are not considered 
part of a paints and allied products manufacturing process, as they 
were not part of the listed paints and allied products source category. 
Additionally, the standards do not apply to research and development 
facilities, as defined in section 112(c)(7) of the CAA. Quality 
assurance and quality control laboratories and research and development 
facilities were inadvertently omitted from the proposal, but the final 
rule corrects this omission.
    If you have any questions regarding the applicability of this 
action to a particular entity, consult either the air permit authority 
for the entity or your EPA regional representative as listed in 40 CFR 
63.13 of subpart A (General Provisions).

B. When must I comply with these standards?

    All existing area source facilities subject to this rule are 
required to comply with the rule requirements no later than December 3, 
2012. New sources are required to comply with the rule requirements 
upon December 3, 2009 or upon startup of the facility, whichever is 
later.

C. What processes does this final rule address?

    There are four general process operations common to the paints and 
allied products manufacturing source categories that emit one or more 
of the target HAP. These four process operations are: (1) Preassembly 
and premix, (2) pigment grinding, milling, and dispersing, (3) product 
finishing and blending, and (4) product filling and packaging.
    For premix and assembly, the final rule addresses the target HAP 
emissions that are generated during the addition of pigments and other 
solid materials to the process or mixing vessels. The preassembly and 
premix step involves the collection of raw materials that will be used 
to produce the desired coating product. These materials are added to a 
high speed dispersion or mixing vessel. The types of raw materials that 
are used for solvent-based coatings include resins, organic solvents, 
plasticizers, dry pigment, and pigment extenders; water, ammonia, 
dispersant, pigment, and pigment extenders are used for water-based 
coatings.
    The final rule addresses HAP emissions from pigment grinding, 
milling, and dispersing. Pigment grinding or milling entails the 
incorporation of the pigment into the paint or ink vehicle to yield 
fine particle dispersion. The three stages of this process include 
wetting, grinding, and dispersion, which may overlap in any grinding 
operation. The wetting agent, normally a surfactant, wets the pigment 
particles by displacing air, moisture, and gases that are adsorbed on 
the surface of the pigment particles. Grinding is the mechanical 
breakup and separation of pigment clusters into isolated particles and 
may be facilitated by the use of grinding media such as pebbles, balls, 
or beads. Finally, dispersion is the movement of wetted particles into 
the body of the liquid vehicle to produce a particle suspension.
    For product finishing and blending, the final rule addresses the 
HAP emissions that occur during heat-up losses during operation of the 
mixers; surface evaporation during mixing and blending; and the 
addition of pigments and other solid materials to the process or mixing 
vessels.
    For product filling and packaging, the final rule addresses HAP 
emissions from the addition of small amounts of pigments, solids, or 
liquids to achieve the required color or consistency of the final 
product.

D. What are the emissions control requirements?

    The following is a description of the control requirements for the 
paints and allied products manufacturing process described in section 
IV.C above. The control requirements only apply when an operation is 
being performed at a process vessel that uses materials containing HAP. 
As stated earlier, the regulations define ``materials containing HAP'' 
as a material containing benzene, methylene chloride, or compounds of 
cadmium, chromium, lead, and/or nickel, in amounts greater than or 
equal to 0.1 percent by weight, as shown in formulation data provided 
by the manufacturer or supplier for the material, such as the Material 
Safety Data Sheet.\4\ For example, an area source may have two process 
vessels, one containing tetrachloroethylene (which is not one of the 
target HAP) and the other containing methylene chloride, and, under 
this rule, only the process vessel containing methylene

[[Page 63508]]

chloride (one of the target volatile HAP) would be part of the affected 
source and as such, subject to the process vessel standards.
---------------------------------------------------------------------------

    \4\ The CAA section 112(k) inventory was primarily based on the 
1990 Toxics Release Inventory (TRI), and that is the case for the 
paints and allied products manufacturing area source category as 
well. The reporting requirements for the TRI do not include de 
minimis concentrations of toxic chemicals in mixtures, as reflected 
in the above concentration levels; therefore, the CAA section 112(k) 
inventory would not have included emissions from operations 
involving chemicals below these concentration levels. See 40 CFR 
372.38, Toxic Chemical Release Reporting: Community Right-To-Know 
(Reporting Requirements). Accordingly, the scope of the listed 
source category is limited to facilities using materials containing 
one or more of the target HAP in quantities greater than 0.1 
percent.
---------------------------------------------------------------------------

1. Standards for Metal HAP Emissions
    This final rule requires owners or operators of all existing and 
new affected facilities to operate a particulate control device during 
the addition of pigments and other solids that contain compounds of 
cadmium, chromium, nickel, or lead, and during the grinding and milling 
of pigments and solids that contain compounds of cadmium, chromium, 
nickel, or lead.
    Particulate control devices that vent to the atmosphere must be 
maintained such that visible emissions from the particulate control 
device shall not exceed 10 percent opacity when averaged over a six-
minute period. Affected sources using particulate control devices that 
do not vent to the atmosphere are not subject to the requirements of 
this rule, as there are no emissions to the atmosphere.
2. Standards for Volatile HAP Emissions
    This final rule requires new and existing affected sources to equip 
process and storage vessels that store or process materials containing 
benzene or methylene chloride with covers or lids. The covers or lids 
can be of solid or flexible construction, provided they do not warp or 
move around during the manufacturing process. The covers or lids must 
maintain contact along at least 90 percent of the vessel rim and must 
be maintained in good condition. Mixing vessels that process or store 
materials containing one or more of the target volatile HAP must be 
equipped with covers that completely cover the vessel, except for safe 
clearance of the mixer shaft. All vessels that store or process 
materials containing benzene or methylene chloride must be kept covered 
at all times, except for quality control testing and product sampling, 
addition of materials, material removal, or when the vessel is empty.
    The final rule requires that leaks and spills of materials 
containing benzene or methylene chloride must be minimized and cleaned 
up as soon as practicable, but no longer than 1 hour from the time of 
detection. Rags or other materials that use a solvent containing 
benzene or methylene chloride for cleaning must be kept in a closed 
container. The closed container may contain a device that allows 
pressure relief but does not allow liquid solvent to drain from the 
container.

E. What are the initial compliance requirements?

    To demonstrate initial compliance with this final rule, owners or 
operators of affected new or existing sources must certify that they 
have implemented all required control technologies and management 
practices and that all equipment associated with the processes will be 
properly operated and maintained. In addition, a visual emission test 
using EPA Method 203C is required to be performed on the particulate 
control device on or before the compliance date.

F. What are the continuous compliance requirements?

    This rule requires owners and operators of affected facilities to 
inspect the particulate control device annually to check the structural 
integrity of the particulate control device, and to perform a visual 
emission test using EPA Method 22 on the particulate control device 
every 3 months. If visible emissions are observed for two minutes of 
the required 5 minute Method 22 observation period, a Method 203C (40 
CFR part 51, appendix M) test must be conducted within 15 days of the 
time when visible emissions were observed. If the Method 203C test 
indicates an opacity greater than 10 percent, you must take corrective 
action and retest using Method 203C within 15 days. The owner/operator 
will continue to take corrective action and retest each 15 days until a 
Method 203C test indicates an opacity equal to or less than 10 percent. 
Failure to meet the 10 percent opacity standard is a deviation and must 
be reported in your annual compliance report along with the corrective 
actions taken.

G. What are the notification, recordkeeping, and reporting 
requirements?

    New and existing affected sources are required to comply with 
certain requirements of the General Provisions (40 CFR part 63, subpart 
A). Each new source is required to submit an Initial Notification no 
later than 180 days after initial startup of the operations or June 1, 
2010, whichever is later. Existing affected sources must submit the 
Initial Notification no later than June 1, 2010. Notification of 
Compliance Status reports are required to be submitted according to the 
requirements in 40 CFR 63.9 in the General Provisions no later than 
June 3, 2013 for existing sources, or no later than 180 days after 
initial startup, or by June 1, 2010, whichever is later for new 
sources.
    The affected source is required to prepare an annual compliance 
certification report. The annual compliance certification report 
contains the company name and address, a statement signed by a 
responsible official that certifies the truth, accuracy, and 
completeness of the certification report, and a statement of whether 
the source has complied with all of the relevant standards and other 
requirements of this rule. If there are any deviations from the 
requirements of this subpart, the facility must submit this annual 
compliance certification report with any deviation reports prepared 
during the year. The deviation reports must describe the circumstance 
of the deviation and the corrective action taken.
    Facilities are also required to maintain all records that 
demonstrate initial and continuous compliance with this final rule, 
including records of all required notifications and reports, with 
supporting documentation; and records showing compliance with 
management practices. Owners and operators must also maintain records 
of the following, if applicable: Date and results of the particulate 
control device inspections; date and results of all visual 
determinations of visible emissions, including any follow-up tests and 
corrective actions taken; and date and results of all visual 
determinations of emissions opacity, and corrective actions taken.

V. Summary of Comments and Responses

    We received a total of 27 comments on the proposed NESHAP from 
industry representatives, trade associations, Federal and State 
agencies, and the general public during the public comment period. 
Sections V.A through V.F of this preamble provide responses to the 
significant public comments received on the proposed NESHAP.

A. Applicability

1. General Applicability
    Comment: Several commenters believe that the proposed rule subjects 
all retail and commercial paints and allied products operations that 
add and mix pigments to pre-manufactured products per customer 
specifications to the requirements in this rule. The commenters believe 
that this was not the intent of the rule, as demonstrated by the 
discussion of the affected number of sources, and economic impacts of 
the rule. The commenters suggest that EPA revise its definitions of 
``paints and allied products,'' ``paints and allied products 
manufacturing,'' and ``paints

[[Page 63509]]

and allied products manufacturing process'' to exclude operations that 
only add and mix small amounts of pigment per container of pre-
manufactured paint or allied products for commercial or retail purchase 
per customer specification.
    One commenter suggests that EPA refer to the language used in the 
major source miscellaneous coatings manufacturing rule (40 CFR part 63, 
subpart HHHHH), which clarified its intent to regulate the coatings 
manufacturers, not activities by end users to prepare or modify 
coatings in preparation for application.
    Another commenter requests that the definitions clarify that the 
rule does not apply to raw material production, as some larger area 
source facilities will be co-located with such operations.
    Response: In response to comments, we re-examined the record 
supporting the initial listing of the Paints and Allied Products 
Manufacturing source category. Based on our review of the record 
supporting that listing, we agree with the commenters that the source 
category that was listed did not include retail and commercial paints 
and allied products operations which add and mix pigments to pre-
manufactured products per customer specifications. EPA's intent in the 
proposed rule was not to include the activities of end users, which 
include retail and commercial paints and allied products operations 
which add and mix pigments to pre-manufactured products per customer 
specifications, and we recognize that the definitions used in the 
proposal were confusing in this regard. In light of the scope of the 
listed source category and the confusion that resulted from some of the 
definitions in the proposed rule, we have revised the definitions of 
``paints and allied products,'' ``paints and allied products 
manufacturing,'' and ``paints and allied products manufacturing 
process'' to exclude operations that add and mix pigments to pre-
manufactured products and to clarify that only facilities that 
manufacture paints and allied products from raw materials, as described 
under NAICS 325510, 325520, 325910 and selected sectors under 325998, 
are covered by this rule. The revised definitions follow:
    Paints and Allied Products Manufacturing means the production of 
paints, inks, adhesives, stains, varnishes, shellacs, putties, sealers, 
caulks, and other coatings from raw materials, the intended use of 
which is to leave a dried film of solid material on a substrate. 
Typically, the manufacturing processes that produce these materials are 
described by Standard Industry Classification (SIC) codes 285 or 289 
and North American Industry Classification System (NAICS) codes 3255 
and 3259 and are produced by physical means, such as blending and 
mixing, as opposed to chemical synthesis means, such as reactions and 
distillation. Paints and allied products manufacturing does not 
include:
    (1) The manufacture of products that do not leave a dried film of 
solid material on the substrate, such as thinners, paint removers, 
brush cleaners, and mold release agents;
    (2) The manufacture of electroplated and electroless metal films;
    (3) The manufacture of raw materials, such as resins, pigments, and 
solvents used in the production of paints and coatings; and
    (4) Activities by end users of paints or allied products to ready 
those materials for application.
    Paints and Allied Products Manufacturing Process means all the 
equipment which collectively functions to produce paints and allied 
products from raw materials A process may consist of one or more unit 
operations. For the purposes of this subpart, the manufacturing process 
includes any, all, or a combination of, weighing, blending, mixing, 
grinding, tinting, dilution, or other formulation. Cleaning operations, 
material storage and transfer, and piping are considered part of the 
manufacturing process. It does not cover activities by end users of 
paints or allied products to ready those materials for application. 
Quality assurance and quality control laboratories are not considered 
part of a paints and allied products manufacturing process.
    In terms of the breadth of the rule's applicability, some 
manufacturing facilities may have co-located or affiliated operations 
which meet the definition of paints and allied products manufacturing, 
and to which this rule does apply.
2. Applicability Based on HAP Used/Emitted
    Comment: Commenters note that the proposed rule would apply to 
paint and allied products manufacturing area sources that process, use, 
or generate one or more of the six target HAP: benzene, methylene 
chloride, cadmium compounds, chromium compounds, lead compounds, and 
nickel compounds. Commenters also note that these HAP are referred to 
as the ``target HAP'' for this regulation. Commenters further state 
that, under the proposed rule, once a facility is determined to be 
subject to the rule, the emission limitations and management practices 
then would apply to all processes at all times, regardless of whether 
any target HAP (or any HAP) was being processed, used, generated, or 
emitted. Commenters request that EPA limit applicability of the rule to 
those times when a process vessel is actually processing, using, 
generating, or emitting one or more of the target HAP.
    One commenter supports EPA's decision to apply the standard to all 
HAP. The commenter notes that EPA has the discretion under Sec.  112(d) 
of the Clean Air Act to issue standards for areas sources ``to reduce 
emissions of hazardous air pollutants,'' and EPA's discretion is not 
limited to only regulating only the target HAP in the area source 
program.
    Several commenters request that EPA limit the rulemaking's 
applicability to those operations at a facility that are actually 
utilizing one of the target HAP. The commenters believe that 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 one or more of the target HAP. One 
of the commenters notes that this approach is used in the Area Source 
Standards for Paint Stripping and Miscellaneous Surface Coating 
Operations and the Area Source Standards for Nine Metal Fabrication and 
Finishing Source Categories. Several of the commenters state that the 
intent of the area source regulations was to regulate the 30 Urban Air 
toxics, and EPA is significantly increasing the burden on industry, 
especially small businesses, by expanding the rule beyond the target 
HAP, without commensurate environmental benefit. One of the commenters 
requests that only the presence of one or more of the target metal HAP 
should trigger the requirements for other metal HAP, and that only the 
presence of benzene or methylene chloride should trigger the 
requirements for other volatile HAP emissions.
    Response: Like the proposed rule, the final rule applies to any 
facility that performs paints and allied products manufacturing that is 
an area source of HAP emissions and processes, uses, or generates 
materials containing one or more of the target HAP: Benzene, methylene 
chloride, and compounds of cadmium, chromium, lead, and nickel.
    To develop the emissions standards in today's rule, we identified 
the emission points that emit the target HAP and determined GACT for 
those emission sources. The proposed regulatory text required that 
these GACT requirements apply at all times, whether any of the target 
HAP was or was not being used.

[[Page 63510]]

However, the preamble to the proposed rule (74 FR 26147) stated that 
the requirements of the rule would apply when any operation is being 
performed that processes, uses, or generates any HAP. EPA intended to 
propose regulatory text that required that the rule's requirements 
apply when any operation is being performed that processes, uses, or 
generates any of the target HAP. The regulatory text in the final rule 
has been revised accordingly to state that the control requirements 
only apply when the facility is processing, using, or generating any of 
the target HAP.
    The commenters requested that the GACT requirements only apply when 
the target HAP are being processed, used, or generated. They did not 
claim that EPA lacks the authority under Sec.  112(d) of the Clean Air 
Act to regulate HAP other than the target HAP, but rather based their 
arguments on claims of potential burdens of expanding the rule beyond 
the target HAP. However, these commenters did not provide specific 
information regarding the potential additional burden to support these 
assertions. We believe there may be a minimal increase in the burden 
associated with controlling emissions in the instances when a non-
target HAP is being used (without a target HAP also being present). 
Facilities that process, use, or generate one or more of the target HAP 
must have the required controls in place, and these same controls will 
control other metal and/or volatile HAP.
    We did make changes in the final rule to clarify our original 
intent that the requirements apply only when a target HAP is processed, 
used, or generated. We also further refined this to specify that the 
requirement to keep process and storage vessels covered only applies 
when the vessel contains target volatile HAP.
    Comment: Several commenters suggested that EPA include an 
applicability exemption for process tanks under a prescribed size. The 
commenters recommend an exemption for process tanks smaller than 250 
gallons, both for consistency with the Miscellaneous Coatings 
Manufacturing Maximum Achievable Control Technology (MACT) rulemaking 
and to limit burden. One commenter stated that it is more difficult to 
install particulate controls on high dispersion process tanks that are 
less than 250 gallons and install covers on process tanks less than 250 
gallons. In addition, if the 250 gallon threshold is not included, 
every ``process tank'' would need to be covered, including very small 
containers like 5 gallon containers and 55 gallons drums.
    Another commenter noted that EPA has already determined in other 
Part 63 NESHAP regulations (such as the HON in subpart G container 
definition at Sec.  63.111) and the RCRA Hazardous Waste Subpart CC 
regulations at 40 CFR 264/265.1080(b)(2) that containers of a capacity 
less than or equal to 0.1 cubic meters (m[sup3]) produce insignificant 
emissions and thus are exempted from the regulations. Additionally, the 
commenter stated that the HAP mandated to be regulated should be 
specifically listed in order to avoid any confusion.
    Response: From the permit information we obtained for the 
rulemaking, we found that 8 out of 30 facilities are required to cover 
storage tanks or process vessels that contain VOC or organic solvents 
to prevent vaporization of VOCs. In a separate study, the Washington 
State Department of Ecology found that the 18 facilities that they 
visited or surveyed used lids or covers on all vessels.\5\  The survey 
also stated that the use of covers or lids is considered to be a 
standard practice by the paint manufacturing industry. Industry 
representatives also provided estimates that around 90-95 percent of 
facilities use covers on their process and storage tanks to prevent 
product loss; these data do not provide any information on tank size.
---------------------------------------------------------------------------

    \5\ Paint and Coatings Manufacturing Sector, Pollution 
Prevention Assessment and Guidance, Washington State Department of 
Ecology, Hazardous Waste and Toxics Reduction Program, Publication 
98-410, Revised November 2002.
---------------------------------------------------------------------------

    None of the information that we found limited the use of lids or 
covers to the size of the tank. Therefore, we believe it is appropriate 
to require the use of lids or covers on all process and storage tanks 
that contain one or more of the target HAP, regardless of the size of 
the tank. The commenters did not provide any information to explain why 
covering a process tank of less than 250 gallons is burdensome. The 
commenters also provided no information to support adopting different 
requirements for smaller process tanks, nor do they provide any 
information explaining that process tank covers for the smaller tanks 
are not generally available control technology. The volatile HAP to be 
controlled are listed at Sec.  63.11599(3).
3. Pollution Prevention Alternative Exemption
    Comment: The commenters stated that a facility should be able to 
``opt out'' of this rule in the future if the facility eliminates the 
processing, use, production or generation of the target HAP; otherwise, 
there is no incentive for coatings manufacturers or their raw material 
suppliers to move away from these HAP. Additionally, several commenters 
stated that 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. 
The facility's continued recordkeeping and reporting would be 
additional cost and burden.
    One commenter believes that EPA's 1995 ``once in/always in'' policy 
applies to major sources subject to MACT standards and would not apply 
to this area source regulation. The commenter requested that EPA 
officially confirm that this policy does not apply to this final 
rulemaking and/or facilities that no longer use the target HAP after 
the date of implementation have the ability to opt-out of the rule.
    Response: The comment concerning the ``once in/always in'' policy 
is not relevant to this rule. The regulated entities subject to this 
rule include the owner/operator of a facility that performs paints and 
allied products manufacturing is an area source of HAP emissions and 
processes, uses, or generates materials containing the following target 
HAP: Benzene, methylene chloride, and compounds of cadmium, chromium, 
lead, or nickel. If a facility that was covered under the rule 
discontinues processing, using, or generating the target HAP through 
pollution prevention practices or otherwise, then that facility is no 
longer covered by the rule. However, should the same facility reinstate 
processing, using or generating the target HAP, it would once again be 
subject to the requirements of this rule, including notification, 
recordkeeping, and reporting. Additionally, terminating use of the 
target HAP would require submittal of a report pursuant to Sec.  
63.9(j) and also require maintenance of the record as required by Sec.  
63.1(b)(3).

B. Compliance/Implementation Dates

    Comment: Two commenters state that Sec.  63.11603(a)(1) requires 
existing sources to notify EPA within 60 days of publication of the 
final rule, and for new sources within 60 days of startup. The 
commenters state that the notification of Compliance Status found in 
Sec.  63.11603(a)(2) requires that all sources report on their 
compliance status within 120 days of their respective compliance date. 
The commenters recommended that the deadlines be changed to 180 days in 
all cases, to provide time for small sources to comply and to be 
consistent with other similar Federal rules.

[[Page 63511]]

    Response: We agree with the commenters that because most of the 
affected facilities are small businesses, and some might be complying 
with EPA regulations for the first time, they should be provided 
additional time to comply with the requirements. Per the General 
Provisions, we have pushed back the initial notification date to 120 
days from the date of publication of the final rule. The compliance 
date is 180 days from the date of publication of the final rule.

C. De Minimis Thresholds and Subcategorization

1. De Minimis Thresholds
    Comment: Several commenters suggest that EPA exempt small paints 
and allied products manufacturing facilities from the final regulation. 
The commenters propose using a de minimis level of 100 lbs/year of one 
or more of the target HAP. The commenters claim that sources with lower 
emissions levels were not included in the 1990 baseline emissions 
inventory. Another commenter suggests a mass-based de minimis level of 
2.0 Megagrams (2.2 tons per year) for target HAP that are processed, 
used, produced, or generated. Alternatively, commenters suggested 
subcategorization of the source category into ``small emission'' and 
``large emission'' facilities based on a 100 lb/year HAP actual 
emission threshold, and then exempting the small emission subcategory 
from all requirements.
    The commenters claim that EPA has provided de minimis exemptions in 
previous area source rules, including Clay Ceramics, Glass 
Manufacturing, and the Benzene NESHAP for Waste Operations. One 
commenter states that precedence for a de minimis threshold (beyond the 
Occupational Safety and Health Administration (OSHA) de minimis 
threshold) is established in earlier NESHAP rulemakings, where EPA 
determined that the use of coatings containing urban air toxics below 
certain thresholds do not negatively impact human health and the 
environment. Specifically, the commenter notes that in the Clay 
Manufacturing Area Source Rule, EPA included an applicability de 
minimis based on the argument that emissions from facilities with 
annual production of less than 50 tons/year were not included in the 
1990 baseline emissions inventory that was used in the basis for the 
area source category listing. The commenter states that only those 
above the 50 ton/year threshold were in the basis for listing, so only 
those facilities are covered by the rule. The commenter believes the 
same is true for the paints and allied products manufacturing rule. 
Other commenters stated that state rules for paints and allied products 
manufacturing contain de minimis thresholds that exclude lower volume 
production facilities, waterborne production facilities, and small 
process tanks. The commenters state that since EPA can look to state 
regulations as part of the GACT analysis, EPA has the authority to 
adopt a 100 lb/year emission de minimis threshold. Several commenters 
believe that without a de minimis emission threshold, a facility that 
relies on a supplier MSDS may find itself out of compliance if, for 
example, a supplier reports a new trace metal constituent on the MSDS. 
The commenters note that the metals of concern are often contaminants 
in purchased raw materials. The commenters note that if the supplier's 
raw material source changes and the supplier's analysis begins to show 
higher traces of a metal, a manufacturer would be out of compliance 
upon receiving this new MSDS, even though no reportable emissions of 
the metal have occurred.
    Response: EPA does not believe it is appropriate to establish a de 
minimis threshold exempting sources emitting less than 100 lb/year of 
the target HAP, or sources processing, using, or producing less than 
2.0 Megagrams (2.2 tons per year) of the target HAP from the final 
regulations. Section 112(c)(3) requires that EPA list categories or 
subcategories of area sources sufficient to ensure that area sources 
representing 90 percent of the area source emissions of the 30 HAP that 
present the greatest threat to public health in the largest number of 
urban areas are regulated. EPA listed the Paints and Allied Products 
Manufacturing area source category in 2002 as one of the categories 
needed to ensure that 90 percent of such area source emissions are 
regulated. The listed source category included sources emitting less 
than 100 lbs/year of the target HAP for the Paints and Allied Products 
Manufacturing source category. Therefore, were EPA to exempt those 
sources from regulation, the statutory requirement to regulate area 
sources representing 90 percent of area source emissions of the urban 
HAP would not be met. For this reason, EPA does not believe a de 
minimis exemption would be appropriate. The rules commenters cite where 
de minimis thresholds were established were issued under section 
112(d)(2) for major sources (i.e., MACT standards), not for area 
sources under section 112(d)(5). Therefore, those major source 
categories were not part of the list of source categories established 
to meet EPA's obligation under section 112(c)(3). Further, commenters' 
claims that EPA established de minimis exemptions in several area 
source rules are incorrect. In these rules, after examining the record 
on which the initial listing was based, EPA clarified the scope of the 
listed source category. Contrary to commenters' assertion, EPA did not 
create any exemptions in those rules. For example, in the case of Clay 
Ceramics, EPA stated:

    ``With this action, we are also clarifying that artisan potters, 
small ceramics studios, noncommercial entities, and schools and 
universities with ceramic arts programs, which typically have annual 
production rates of 45 Mg/yr (50 tpy) or less, are not a part of the 
source category listed pursuant to section 112(c)(3) and (k)(3)(B), 
and are, therefore, not covered by this area source standard. Urban 
HAP emissions from these facilities were not included in the 1990 
baseline emissions inventory that was used as the basis for the area 
source category listing.''

EPA set standards in each of the area source rules cited above for all 
sources that were part of the listed source category to meet the 
statutory obligation in section 112(d)(3) to regulate sources 
representing 90 percent of area source emissions of the urban HAP. EPA 
also notes that the commenter's reference to state law requirements is 
irrelevant. EPA is required to establish area source standards pursuant 
to the requirements of section 112(d), and cannot create exemptions to 
those standards based on state law requirements.
    Finally, commenters are concerned that without a de minimis 
emission threshold, a facility that relies on a MSDS may find itself 
out of compliance if a raw material source changes and the supplier's 
analysis begins to show higher traces of a metal, and those higher 
levels are not reflected on the MSDS. The CAA section 112(k) inventory 
was primarily based on the 1990 Toxics Release Inventory (TRI), and 
that is the case for the paints and allied products manufacturing area 
source category as well. The reporting requirements for the TRI do not 
require reporting of de minimis concentrations of toxic chemicals in 
mixtures, as reflected in the above concentration levels; therefore, 
the CAA section 112(k) inventory would not have included emissions from 
operations involving chemicals below these concentration levels. See 40 
CFR 372.38, Toxic Chemical Release Reporting: Community Right-To-Know 
(Reporting Requirements). Accordingly, the scope of the listed source 
category is limited

[[Page 63512]]

to facilities using materials containing one or more of the target HAP 
in quantities greater than 0.1 percent.
    In addition, EPA believes the regulations as proposed adequately 
address the commenters' concern regarding reliance on the MSDS. For 
facilities that rely on a supplier MSDS, the manufacturer would only be 
out of compliance if the materials containing one or more of the target 
HAP greater than 0.1 percent are used in the process, without the 
required controls in place. Therefore, a manufacturer would be required 
to submit the appropriate forms if the manufacturer intends to use the 
material containing HAP greater than 0.1 percent by weight in the 
manufacturing process. Commenters provide no evidence to indicate that 
MSDS from suppliers will be inaccurate and will result in noncompliance 
with the regulation.
2. Subcategorization
    Comment: One commenter states that the legal basis for EPA's 
subcategorization of the Paints and Allied Products Manufacturing area 
source category into large and small facilities is well established. 
The commenter asserts that section 112(d)(1) of the Clean Air Act 
provides that EPA ``may distinguish among classes, types, and sizes 
within a source category or subcategory in establishing such 
standards.'' 42 U.S.C. 7412(d)(1). The commenter also notes that the 
Clean Air Act supports an EPA determination that work practice 
standards and general management practices constitute GACT for small 
Paints and Allied Products Manufacturing sources.
    According to the commenter, a review of the commenter's internal 
data show significant differences between larger and smaller facilities 
based on production levels, matching EPA estimates that the metal HAP 
emissions for a typical ``small emission'' area source facility are 
only about 10 percent of the level of emissions for a typical ``large 
emission'' area source facility.
    The commenter states that in the area source rule for Chemical 
Manufacturing, EPA evaluated impacts for two groupings or subcategories 
for metal HAP and considered a threshold because of an observed 
difference in operation depending on the emission rate. The commenter 
further notes that EPA realized that there was a difference between 
facilities with higher HAP emissions that manufactured products 
containing HAP as an intended part of the product, and a majority of 
facilities with low emissions where the HAP originated from impurities 
in raw materials. The commenter believes there is a similar observed 
difference in operations depending on the emission rate for the paints 
and allied products manufacturing industry as well. The commenter 
states that facilities with actual emissions of paints and allied 
products manufacturing metal HAP (cadmium, chromium, nickel and lead) 
above 100 lb/yr produce products that contain the HAP as an intended 
part of the product. The commenter also asserts that EPA has the 
discretion to create subcategories of area sources, and that EPA should 
do so in the paints and allied products manufacturing rule based on 
cost considerations, as well as differing industry practices and 
processes.
    The commenter claims that two of the management practices EPA 
proposed to identify as GACT are used frequently: (1) Sweeping/
cleaning, and (2) purchasing only materials that are free (to the 
greatest extent possible) of HAP metals. Of the particulate matter (PM) 
control technologies EPA proposed as GACT, the commenter claims that 
large paints and allied products manufacturing facilities frequently 
use baghouses to reduce PM/HAP emissions, while smaller (less than 100 
lb/year emission) facilities most often do not. The commenter also 
states that the consideration of costs and economic impacts is 
especially important for determining GACT for small paints and allied 
products manufacturing facilities because, given their extremely low 
level of HAP emissions, requiring additional controls would result in 
only marginal reductions in emissions at very high costs for modest 
incremental improvement in control.
    Response: EPA does not believe that subcategories in the Paints and 
Allied Products Manufacturing area source category are warranted. In 
particular, EPA has no information demonstrating that paints and allied 
products manufacturing facilities that emit more than 100 lbs/year of 
HAP are of a different class, type, or size than similar facilities 
with lower emissions. In contrast, in the Chemical Manufacturing Area 
Source rule, EPA had information to support a conclusion that 
facilities above a certain total resource effectiveness value had 
different continuous process vents than facilities below that TRE 
value. See 73 FR 58352, 58364-65 (Oct. 6, 2008). We do not have any 
such information for the Paints and Allied Products Manufacturing 
source category. Absent such a demonstration, the Agency has no basis 
to support subcategorizing facilities with higher emissions from those 
with lower emissions. Further, while the commenters assert that larger 
facilities use baghouses while smaller ones do not, the commenter 
provided no data or information to support this assertion, and EPA has 
no data or information to substantiate this claim.

D. Emission Standards and Management Practices

1. Generally Available Control Technology
    Comment: One commenter stated that, as described in Sec.  
112(k)(1), the purpose of the area source program is to ``achieve a 
substantial reduction in emissions of hazardous air pollutants from 
area sources and an equivalent reduction in the public health risks 
associated with such sources * * *.'' 42 U.S.C. 7412(k)(1). For area 
sources, EPA may set either MACT standards, or alternative standards 
(sometimes referred to as ``GACT'' standards) that ``provide for the 
use of generally available control technologies or management practices 
* * * to reduce emissions of hazardous air pollutants.'' 42 U.S.C. 
7412(d)(5).
    The commenter stated that EPA provides no explanation for its 
decision to issue GACT standards instead of MACT standards for the 
Paints and Allied Products Manufacturing area source category.
    Response: As the commenter recognizes, in CAA section 112(d)(5), 
Congress gave EPA explicit authority to issue alternative emission 
standards for area sources. Specifically, CAA section 112(d)(5), which 
is entitled ``Alternative standard for area sources,'' provides:

    With respect only to categories and subcategories of area 
sources listed pursuant to subsection (c) of this section, the 
Administrator may, in lieu of the authorities provided in paragraph 
(2) and subsection (f) of this section, elect to promulgate 
standards or requirements applicable to sources in such categories 
or subcategories which provide for the use of generally available 
control technologies or management practices by such sources to 
reduce emissions of hazardous air pollutants.

See CAA section 112(d)(5) (Emphasis added).
    There are two critical aspects to CAA section 112(d)(5). First, CAA 
section 112(d)(5) applies only to those categories and subcategories of 
area sources listed pursuant to CAA section 112(c). The commenter does 
not dispute that EPA listed the area source category noted above 
pursuant to CAA section 112(c)(3). Second, CAA section 112(d)(5) 
provides that, for area sources listed pursuant to CAA section 112(c), 
EPA ``may, in lieu of'' the authorities provided in CAA section 
112(d)(2) and 112(f), elect to promulgate standards pursuant to CAA 
section 112(d)(5). CAA

[[Page 63513]]

Section 112(d)(2) provides that emission standards established under 
that provision ``require the maximum degree of reduction in emissions'' 
of HAP (also known as MACT). CAA section 112(d)(3), in turn, defines 
what constitutes the ``maximum degree of reduction in emissions'' for 
new and existing sources. See CAA section 112(d)(3).\6\ Webster's 
dictionary defines the phrase ``in lieu of'' to mean ``in the place 
of'' or ``instead of.'' See Webster's II New Riverside University 
(1994). Thus, CAA section 112(d)(5) authorizes EPA to promulgate 
standards under CAA section 112(d)(5) that provide for the use of GACT, 
instead of issuing MACT standards pursuant to CAA section 112(d)(2) and 
(d)(3). The statute does not set any condition precedent for issuing 
standards under CAA section 112(d)(5) other than that the area source 
category or subcategory at issue must be one that EPA listed pursuant 
to CAA section 112(c), which is the case here.\7\
---------------------------------------------------------------------------

    \6\ Specifically, CAA section 112(d)(3) sets the minimum degree 
of emission reduction that MACT standards must achieve, which is 
known as the MACT floor. For new sources, the degree of emission 
reduction shall not be less stringent than the emission control that 
is achieved in practice by the best controlled similar source, and 
for existing sources, the degree of emission reduction shall not be 
less stringent than the average emission limitation achieved by the 
best performing 12 percent of the existing sources for which the 
Administrator has emissions information. CAA Section 112(d)(2) 
directs EPA to consider whether more stringent emission reductions 
(so called beyond-the-floor limits) are technologically achievable 
considering, among other things, the cost of achieving the emission 
reduction.
    \7\ CAA Section 112(d)(5) also references CAA section 112(f). 
See CAA section 112(f)(5) (entitled ``Area Sources'' and providing 
that EPA is not required to conduct a review or promulgate standards 
under CAA section 112(f) for any area source category or subcategory 
listed pursuant to CAA section 112(c)(3), and for which an emission 
standard is issued pursuant to CAA section 112(d)(5)).
---------------------------------------------------------------------------

    We disagree with the commenter's assertion that we must provide a 
rationale for issuing GACT standards under section 112(d)(5), instead 
of MACT standards. Had Congress intended that EPA first conduct a MACT 
analysis for each area source category, Congress would have stated so 
expressly in section 112(d)(5). Congress did not require EPA to conduct 
any MACT analysis, floor analysis or beyond-the-floor analysis before 
the Agency could issue a section 112(d)(5) standard. Rather, Congress 
authorized EPA to issue GACT standards for area source categories 
listed under section 112(c)(3), and that is precisely what EPA has done 
in this rulemaking.
    Although EPA need not justify its exercise of discretion in 
choosing to issue a GACT standard for an area source listed pursuant to 
section 112(c)(3), EPA still must have a reasoned basis for the GACT 
determination for the particular area source category. The legislative 
history supporting section 112(d)(5) provides that GACT is to 
encompass:

    ``* * * methods, practices and techniques which are commercially 
available and appropriate for application by the sources in the 
category considering economic impacts and the technical capabilities 
of the firms to operate and maintain the emissions control 
systems.''

The discussion in the Senate report clearly provides that EPA may 
consider costs in determining what constitutes GACT for the area source 
category. Congress plainly recognized that area sources differ from 
major sources, which is why Congress allowed EPA to consider costs in 
setting GACT standards for area sources under section 112(d)(5), but 
did not allow that consideration in setting MACT floors for major 
sources pursuant to section 112(d)(3). This important dichotomy between 
section 112(d)(3) and section 112(d)(5) provides further evidence that 
Congress sought to do precisely what the title of section 112(d)(5) 
states, i.e., provide EPA the authority to issue ``alternative 
standards for area sources.''
    Notwithstanding the commenter's claim, EPA properly issued 
standards for the area source categories at issue here under section 
112(d)(5), and in doing so provided a reasoned basis for its selection 
of GACT for these area source categories. As explained in the proposed 
rule, EPA evaluated the control technologies and management practices 
that reduce HAP emissions at paints and allied products manufacturing 
facilities, including those at both major and area sources. In its 
evaluation, EPA used information on pollution prevention from industry 
trade associations, and reviewed operating permits to identify the 
emission controls and management practices that are currently used to 
control volatile and particulate HAP emissions. We also considered 
technologies and practices at major and area sources in similar 
categories.
    Finally, even though not required, EPA did provide a rationale for 
why it set a GACT standard in the proposed rule. In the proposal, we 
explained that the facilities in the source categories at issue here 
are already well controlled for the urban HAP for which the source 
category was listed pursuant to section 112(c)(3). Consideration of 
costs and economic impacts proves especially important for the well-
controlled area sources at issue in this final action. Given the 
current, well-controlled emission levels, a MACT floor determination, 
where costs cannot be considered, could result in only marginal 
reductions in emissions at very high costs for modest incremental 
improvement in control for the area source category.
2. Metal HAP Standards
    Comment: One commenter states that although particulate control 
devices are generally available, EPA has not adequately supported its 
proposal to set an opacity standard rather than a particulate matter 
standard. The commenter notes that EPA acknowledged that most of the 
State operating permits for facilities in this category impose a 
``concentration or mass emission particulate limit that requires 
testing using an appropriate particulate test method, in most cases EPA 
Method 5.'' The commenter says that EPA rejected this widespread 
approach of a concentration or mass emission limit, instead adopting 
opacity as a surrogate for assessing mass emissions. The commenter 
states that EPA failed to demonstrate that the use of opacity as a 
surrogate is sufficient to achieve the levels of reduction that are 
already imposed by the State operating permits that rely on particulate 
testing. The commenter says that EPA's reliance on a 1991 study of 
benefits of opacity monitors applied to Portland Cement Kilns was 
unpersuasive. The commenter also notes that in the recently proposed 
NESHAP for the Portland Cement Manufacturing Industry, EPA rejected the 
use of an opacity standard, stating that ``we do not believe that 
opacity is an accurate indicator of compliance with the proposed PM 
emissions limit.''
    Another commenter notes that there is no definition of capture or 
control efficiency in the proposed rule. The commenter recommends that 
EPA consider implementing capture and control system efficiencies 
parallel to those in the NESHAP for Nine Metal Fabrication and 
Finishing Sources (40 CFR part 63, subpart XXXXXX). In this rule, the 
commenter states that the term ``adequate emissions capture methods'' 
is defined in Sec.  63.11522 to include ``* * * drawing greater than 85 
percent of the airborne dust generated from the process into the 
control device.'' The commenter continues by saying that the Metal 
Fabrication and Finishing NESHAP requires spray paint booths to be 
fitted with PM filter technology that is ``* * * demonstrated to 
achieve at least 98 percent capture. * * *''
    Response: As the commenter pointed out, particulate control devices 
were determined to be GACT for the control of the particulate HAP 
emissions. Based on the existing operating permit

[[Page 63514]]

requirements for paints and allied products manufacturing, we found a 
variety of formats and units, e.g., percent opacity, allowable PM or 
PM10 emission rates (pounds per hour or tons per year), and 
outlet concentrations (grains per dry standard cubic foot (gr/dscf)). 
We evaluated GACT for these format options and determined that an 
opacity limit was the most appropriate selection. As discussed below, 
there are cost and technical issues associated with demonstrating 
compliance with a PM numerical emission limit or a percent reduction 
standard, such that they do not constitute GACT for this source 
category.
    As was stated in the proposal, we had concerns with the economic 
impact of particulate matter testing on the affected facilities, many 
being small businesses. A typical EPA Method 5 PM emissions test used 
for an emission limit or a percent reduction standard would cost 
between $3,000 and $10,000, while the cost of performing a Method 203C 
test is approximately $2,000, assuming an off-site contractor conducts 
the test.\8\ In addition, the manufacture of paints and allied products 
is a batch process. The addition of pigments and solids, when the 
particulate control device would need to operated, can be completed in 
minutes, whereas the typical Method 5 test is run for sixty minutes. 
This presents technical issues with stopping and starting the Method 5 
test method in order to capture a representative sample of the 
particulate emissions from the particulate control device during the 
addition of pigments and solids. Based on these cost and technical 
issues, we determined that an opacity standard would minimize the 
economic burden on the facilities covered by this rule while still 
ensuring that the particulate control device is well-designed and 
operated.
---------------------------------------------------------------------------

    \8\ Revision of Source Category List for Standards Under Section 
112(k) of the Clean Air Act; and National Emission Standards for 
Hazardous Air Pollutants for Area Sources: Ferroalloys Production 
Facilities, September 15, 2008.
---------------------------------------------------------------------------

    EPA's statements in the May 6, 2009 proposed amendments for the 
Portland Cement NESHAP (74 FR 211360) are not relevant here. Our 
statements in that proposal were in relation to the use of an 
alternative opacity standard to demonstrate compliance with a numeric 
PM limit. In contrast, in the Paints and Allied Products Manufacturing 
area source NESHAP the opacity limit is not used to demonstrate 
compliance with a numeric PM limit. The opacity limit established in 
this rule is a standard and not a surrogate for particulate matter. The 
statements in the Portland Cement proposal did not question the use of 
an opacity limit for the specific purpose for which EPA is adopting 
such a limit in today's action. Therefore, we believe our decision to 
establish GACT as the requirement to capture and route PM emissions to 
a control device that achieves a specified opacity is warranted. This 
format is retained in the final rule.
    In summary, we believe the requirement to capture and route PM 
emissions to a control device that achieves a specified opacity limit 
is GACT. This technology is generally available, and opacity is a 
reasonable and effective means of ensuring that the control device is 
functioning correctly and achieving emission reductions.
    Comment: EPA proposed that new and affected sources must capture 
particulate emissions and route them to a particulate control device 
during the addition of pigments and other solids and during the 
grinding and milling of solids. Two commenters agree with EPA that, 
after the addition processes, the pigments and associated metal HAP are 
in solution and emissions are minimal. Two commenters question whether 
particulate controls are needed during the grinding and milling stage, 
which occurs after the addition process when the pigments are in 
solution. One of the commenters notes that often grinding and milling 
equipment is fully enclosed, and there are typically no HAP emissions 
from the process. Two commenters suggest that particulate controls only 
be required when pigments and solids are added to the high speed 
dispersion tanks.
    Response: There are a number of different milling and grinding 
methods and equipment that are used in the paints and allied products 
manufacturing industry. As the commenters note, many grinding and 
milling processes are fully enclosed and typically do not emit HAP from 
this process. In addition, there are minimal HAP emissions from the 
grinding and milling processes that occur when the pigments are in 
solution. Therefore, the final rule has been revised to provide three 
additional compliance options other than the use of a particulate 
control device. A particulate control device must be used during the 
addition of dry pigments or other dry materials that contain HAP to the 
grinding and milling equipment. However, the use of pigments or 
materials that contain HAP in paste, slurry, or liquid form instead of 
in dry form is an alternative means of compliance for this area source 
rule. In addition, fully enclosing the grinding and milling equipment 
is a second alternative means of compliance, in lieu of using a 
particulate control device. In addition, the requirements of the rule 
are satisfied if the pigments and solids that contain HAP in the 
grinding and milling equipment are in solution. These revisions do not 
change the intent of the rule, which is to reduce HAP emissions; in the 
case of each of these revisions, minimal HAP are emitted. In other 
words, we are not requiring use of a particulate control device during 
periods when alternative compliance methods will ensure that 
particulate emissions will be controlled. Each of these compliance 
alternatives will achieve at least as much reduction of emissions of 
the target HAP as will use of a particulate control device. Therefore, 
we believe that these revisions address the commenters' concerns 
because use of a particulate control device is not required if a 
facility does not have any metal HAP emissions, whether it is because 
the metal HAP is in paste, liquid, or slurry form during grinding and 
milling or because a facility is not venting emissions to the 
atmosphere.
    We agree with the commenter that particulate controls should be 
used during the addition of solid materials that contain HAP to high 
speed dispersion.
    Comment: Several commenters object to the 5 percent opacity limit. 
One of the commenters states that most paint facilities with 
particulate controls do not have opacity limits, and for those 
facilities that do, the existing limits are not as stringent as the 
proposed 5 percent opacity limit. Based on the operating permit 
information in the docket, the commenter believes that EPA's proposal 
of 5 percent is arbitrary and indicated that based on real-world 
experiences; they stated that 30 percent opacity is more realistic. Two 
of the commenters note that only three of the 44 facilities evaluated 
for this rulemaking had a 5 percent opacity requirement. The commenters 
indicate that the remaining facilities have opacity requirements of 20 
percent or greater. Given these facts, the two commenters believe that 
an opacity standard of 20 percent would be more in line with what is 
intended by GACT. One commenter reviewed the 44 operating permits in 
the docket for this rulemaking and found that only 3 had a 5 percent 
opacity limit; 11 had a 20 percent limit, 2 had 30 percent limit, 13 
had 40 percent limit, and 2 had an observed or no opacity limit. The 
commenter states that since this rule is governed by GACT, EPA is 
obligated to determine the control and work practices that are most 
commonly used or that are most prevalent. The commenter maintains that 
EPA has not

[[Page 63515]]

appropriately set the standard, and that GACT would be an opacity level 
of 30 percent. In addition, the commenter states that as most of the 
affected sources under this rulemaking are small businesses, EPA should 
not maintain an opacity emissions limit requirement in the final 
rulemaking. However, the commenter says that if EPA does decide to 
codify an opacity emissions level, it be no less than 30 percent.
    Response: The commenter's statement that GACT must be based on the 
control technologies or emission limitations of the majority is 
incorrect. Rather, GACT reflects what is generally available, and a 
control technology may be generally available even if a majority of 
sources are not currently using it. However, in the case of paints and 
allied products manufacturing, we found that the use of particulate 
control devices is a common practice; the permits we obtained indicated 
that 79 percent of the facilities were currently equipped with a 
particulate control device.
    We disagree with the commenter's interpretation of the opacity 
limitations in the permit data. The majority of opacity limitations in 
the permits are general opacity limits that are intended to limit the 
amount of fugitive emissions that are emitted to the atmosphere from an 
industrial facility. These fugitive emissions include road dust, 
storage pile and other non-process emissions from an industrial 
facility. We believe that many of these opacity limits in the permits 
are not intended to limit the emissions from a particulate control 
device. To determine an appropriate opacity limit for this rule, we 
reviewed documents related to opacity and particulate control devices. 
Based on this review, we concluded that the opacity from a properly 
operated particulate control device would be zero or near zero. 
Therefore, we proposed a 5 percent opacity standard for the particulate 
control device.
    We selected an opacity standard because opacity provides an 
indication of the concentration of particulates leaving an exhaust 
stack. The more particulate matter that is passed through the exhaust, 
the more light will be blocked, and, as a result, a higher opacity 
percentage is observed. The documents that we reviewed determined that 
in many cases a properly maintained particulate control device could 
achieve zero or near zero opacity. However, many of these measurements 
were determined using a continuous opacity monitor system (COMS). For 
this rule, we believe all of the facilities will measure opacity using 
a trained observer, who assigns opacity readings in 5 percent 
increments. The trained observer is certified to determine the opacity 
with a positive error of less than 7.5 percent opacity, and to observe 
95 percent of the readings with a positive error of less than 5 percent 
opacity. To take into account this observer error, we have revised the 
final opacity limit to be less than 10 percent opacity when averaged 
over a six minute period.
3. Volatile HAP Standards
    Comment: Three commenters state that operators need to open nearly 
every process or storage tank at some time for quality control testing, 
adding of materials or removal of product. Therefore, consistent with 
the Miscellaneous Coatings Manufacturing MACT (MCM), one commenter 
requests that EPA revise the regulation such that operators are allowed 
to open any vessel, be it mixing, process, or storage, for quality 
control testing and sampling of the product, addition of materials, or 
removal of product from the vessel. One commenter notes that the 
proposed rule requires that process and storage vessels must be kept 
covered when not in use. The commenter notes that EPA provided an 
exception during the manufacturing process to allow for quality control 
or during the addition of pigments. The commenter recommends that a 
similar exception be provided to gain access to process and storage 
vessels for emptying, cleaning, and maintenance. One commenter states 
that some of their vessels are cleaned manually, and therefore covers 
cannot be maintained over the vessel at all times. The commenters 
subsequently believe that an exemption needs to be added to the final 
rule for inspection and/or cleaning of the process vessels.
    Response: In the proposed rule, we recognized certain situations 
during which process and storage vessels need to be opened. In 
establishing the GACT for this area source, we did not include other 
necessary actions. As such, we have amended the final rule so that 
operators may open any vessel necessary for quality control testing and 
product sampling, addition of materials, or product removal. We did not 
include maintenance, because we believe that maintenance of the process 
vessel should be performed when the process vessel is empty. We have 
also revised the regulations to only require lids or covers on process 
or storage vessels that contain benzene or methylene chloride. Process 
or storage vessels that do not contain benzene or methylene chloride, 
and process or storage vessels that are empty, are not required to have 
covers or lids.
    Comment: Numerous commenters believe the proposed vessel cover 
requirements are nearly impossible to institute both from a compliance 
and enforcement standpoint. Many of the commenters believe that it is 
nearly impossible to confirm that a lid or cover touches at least 90 
percent of the vessel rim at any given time. Further, states a 
commenter, if a cover is constructed from a flexible material, it will 
most likely move around during the manufacturing process. The commenter 
continues that solid lids may ``move around,'' and/or warp over time. 
The commenter notes that only one of the State permits in the docket 
had this requirement and that this should not be considered GACT. 
Another commenter believes that the plywood covers/lids that EPA used 
to estimate costs for this rule would probably not meet this standard, 
as plywood may warp over time. Therefore, the commenters suggest that 
this requirement be deleted.
    Response: The 90 percent cover requirement is intended to ensure 
that the lid or cover properly fits on the process vessel that contains 
the target HAP. The 90 percent cover requirement can be calculated by 
subtracting the length of any visible gaps from the circumference of 
the process vessel, and dividing this number by the circumference of 
the process vessel. We believe this requirement also addresses the 
issue of warping of the cover over time, because if the cover warps or 
moves around so that the vessel is not meeting the 90 percent coverage 
requirement, then the cover should be replaced in order to effectively 
control the HAP emissions. We understand that the cover may move around 
during the manufacturing process; however we believe the 90 percent 
cover requirement provides the best guidance for covering a process 
vessel that contains HAP. It ensures that HAP emissions are controlled, 
but provides some flexibility (i.e., as much as ten percent of the 
circumference of the lid need not be in contact with the cover) to 
accommodate movement of the covers that may occur during the 
manufacturing process.
    Further, the 90 percent cover requirement is consistent with the 
standard procedures EPA has observed at existing paints and allied 
product manufacturing facilities. Some facilities are subject to 
similar 90 percent cover requirements under state or local regulations 
(for example, San Diego County). Based on our data, nearly all paints 
and allied product manufacturing facilities use lids on process vessels 
to prevent loss of product; this makes good business sense. Lid options 
include

[[Page 63516]]

tight-fitting stainless steel lids, elasticized plastic ``shower 
caps,'' and plywood covers. The 90 percent cover requirement is 
designed to remove any uncertainty about whether a vessel is adequately 
covered, for both the facility manager and the enforcement personnel. 
Therefore, the 90 percent cover requirement is included in the final 
rule.

E. Testing, Monitoring, and Inspection Requirements

1. Visual Emissions Requirement
    Comment: Several commenters state that EPA Method 9 is burdensome. 
One commenter suggests that EPA allow for an alternative or 
modification to Method 9 that has been widely implemented across the 
country. Two commenters state that the area source NESHAP requirements 
for the Nine Metal Fabrication and Finishing Sources allow facilities 
to utilize EPA Method 22 in lieu of EPA Method 9 if no visible 
emissions are observed. One commenter believes that it is highly 
unlikely there would be visible emissions from a facility that uses a 
particulate control device, and requiring EPA Method 22 for periodic 
monitoring should be more than adequate for this source category. One 
commenter states that other methods use observation and reporting 
techniques very similar to Method 9, except that an uncertified 
observer would be permitted to make an initial determination of any 
visible emission. The commenter continues, stating that if a visible 
emission is identified, then corrective measures must be taken. The 
commenter notes that if more than a trace of visible emissions persists 
after maintenance has been completed, the facility must either 
determine whether the emission limit is being exceeded using a 
certified observer, or shut down the process. The commenter says that 
this approach is currently being used by their facility and suggests 
that EPA include this method in the final rulemaking. One commenter 
believes that a simple evaluation of visible emissions coupled with the 
pressure drop monitoring is adequate to monitor the ongoing proper 
operation of the add-on dry PM control device. Another commenter 
suggests that EPA provide an alternative to the formal Method 9 
observation by allowing the owner/operator to conduct a general visible 
emission observation once per calendar quarter. The commenter says that 
if the owner/operator does observe any visible emissions during the 
quarterly observations, then the owner/operator should be allowed to 
address the situation causing the visible emissions. The commenter 
requests that if the problem persists for more than 24 hours, then the 
owner/operator should treat the observation as a deviation, or they can 
have the option to conduct a formal opacity test using a trained Method 
9 observer.
    Response: We appreciate the basic concerns of the commenters with 
regard to Method 9, although we have not elected to incorporate the 
specific suggestions made. In the final rule, we have changed the 
requirement, which now reads that an initial Method 203C test must be 
conducted to demonstrate compliance with a 10 percent opacity limit. 
Upon re-evaluation of the data and actual facility conditions, we 
determined that Method 203C better characterizes the emissions from the 
paints and allied product manufacturing operations. The time in which 
the emissions are present are significantly shorter than the thirty-
minute visual inspection of Method 9. Method 203C is similar to Method 
9 in training; however, Method 203C specifically allows for these short 
time limits with a one-minute average.
    We have also removed the requirement to conduct additional Method 9 
tests every six months. In place of these semi-annual Method 9 tests, 
the final rule requires that a Method 22 visible emissions observation 
be conducted once per quarter. If this observation detects visible 
emissions for six minutes of the required 15 minute observation period, 
then a Method 203C test is required within one week. If the Method 203C 
test then detects an opacity greater than 10 percent, the corrective 
action and retesting within 15 days requirement that was in the 
proposed rule would apply. This information must also be included in 
the annual report. We believe that Method 22 provides a comparable 
approach to ensure that any emission control equipment is operating 
properly and HAP emissions are reduced. Method 22 is used to ensure the 
process and any emission control equipment is operating properly and is 
not generating excess emissions. Method 22 is comparable to Method 203C 
because both methods use the human eye to determine if visible 
emissions are observed from an industrial activity. Therefore, we 
believe that this approach reduces the burden of the semi-annual Method 
9 testing that the commenters were concerned about, while also ensuring 
that the control devices are operating properly.
    Comment: Three commenters have suggestions related to the proposed 
inspection requirements. One of the commenters agrees that wet and dry 
PM control systems require initial and ongoing system integrity 
inspections as well as integrity inspections after each incidence of 
maintenance or repair. The commenter believes that these inspections 
are necessary to assure the successful ongoing capture and control of 
the PM emissions from paint manufacturing. However, the commenter 
states that the exact frequency, extent, and nature of these 
inspections should be defined by the coatings manufacturer in a written 
plan with which they should comply; the elements of the plan should be 
clearly established in the rule. The commenter recommends that the hood 
and flexible ductwork portion of the system be subject to informal 
inspections each week of use while the rigid portion of the ductwork be 
subject to annual inspections, or to inspection after any maintenance 
or repair work is performed on the duct system. The commenter 
recommends that initial corrective action should be immediately 
undertaken to mitigate any problems when system integrity is 
compromised and the identified problem fully corrected and documented 
within 15 days of first discovery. Two commenters believe that a weekly 
inspection of the particulate control device is not practical. A 
commenter states that because ductwork leaks under a vacuum cannot be 
visually detected, weekly visual leak inspections of dry particulate 
control device ductwork should not be required. In addition, the 
commenter notes that EPA has historically exempted the inspection of 
ductwork as excessive. The commenter states that several MACT rules 
require only annual inspection of ductwork. One commenter believes that 
the requirement should be replaced with a standard condition for proper 
operation and maintenance in accordance with the manufacturer's 
recommendations.
    For dry PM control devices, one commenter recommends that the 
pressure drop across the system be monitored continuously using some 
type of manometer or pressure drop gauge to verify that the pressure 
drop is maintained within the range recommended by the manufacturer of 
the control device, which includes considerations based on the filter 
media employed, the method of filter media cleaning employed (if any), 
and the loading of the effluent stream being controlled. The commenter 
believes that wet PM control systems should be inspected on a frequency 
recommended by the control system manufacturer, and the frequency as 
well as the parameters to be monitored should be clearly

[[Page 63517]]

defined in a written management plan developed and implemented by the 
coatings manufacturer employing the system. The commenter says that 
this graduated type of approach to inspection frequency and the 
management plan requirement to define the details of the inspection 
parameters as proposed in the preceding paragraphs has been used in the 
area source NESHAP for Nine Metal Fabrication and Finishing Sources. 
The commenter states that this approach would provide a viable means to 
both assure ongoing compliance while minimizing the burden of 
compliance on the source.
    Response: We believe that it is important that regular inspections 
be conducted to ensure that the integrity of both the capture system 
and the control device is maintained, and we agree with the commenters 
in regard to the inspections of the rigid ductwork. Therefore, we have 
clarified in the final rule that the rigid, stationary portions of the 
ductwork only need to be inspected annually. Because the particulate 
control system operates infrequently, we believe annual inspections of 
the rigid, stationary ductwork is sufficient to ensure the integrity of 
the particulate control system. However, we do believe that inspection 
of flexible ductwork needs to be conducted more frequently. Therefore, 
we retained the weekly inspection requirement for hoods and flexible 
ductwork in the final rule. We do not agree with the one commenter who 
states that the best approach is to establish the inspection frequency 
in site-specific plans. Site-specific plans create additional reporting 
burdens for small businesses. In addition, site-specific plans may not 
provide the periodic inspections that are needed to ensure that the 
particulate control device is operating properly. Therefore, we believe 
that the revised inspections will provide the insurance that the 
particulate control device is operating properly, while reducing the 
burden on the facility.
    We agree that continuous monitoring of pressure drop can be used to 
ensure that the control system is operating properly; however, we also 
believe that the combination of the system integrity inspections and 
the visual emissions monitoring (discussed below) are sufficient for 
the source category and at a lower cost than installing, calibrating, 
and operating a continuous monitoring system (CMS). Inspections and 
visible emissions monitoring of the particulate control device system 
provide data indicative of a well-operated and maintained control 
device. The inspections will ensure there are no leaks in the duct 
work, while the visible emissions monitoring will ensure that the 
particulate control device is operating as intended, and that no excess 
emissions are emitted. Many of the paints and allied products 
manufacturing facilities are small businesses, and incorporating a 
continuous monitoring system would create an economic hardship on many 
of these businesses. Therefore, we have not incorporated the 
commenter's suggestion to require continuous monitoring of pressure 
drop. We also reviewed the graduated type of inspections and monitoring 
outlined in the NESHAP for Nine Metal Fabrication and Finishing Sources 
and believe that this type of inspection and monitoring program is not 
appropriate for the paints and allied products industry. Many of the 
nine metal fabrication and finishing facilities require continuous 
operation of the particulate control device. In contrast, the majority 
of paint and allied products are produced in batches and the operation 
of the particulate control device is expected to be intermittent. 
Therefore, we believe that the proposed inspection and monitoring 
requirements for the paints and allied products manufacturing industry 
are appropriate.
    While the proposed rule included inspection requirements, it did 
not contain any provisions regarding required actions if problems were 
found during an inspection. We agree that such a requirement is needed 
to ensure that corrective action will be taken promptly. Therefore, we 
have incorporated the commenter's suggestion to require that corrective 
action be initiated as soon as practicable to mitigate any problems 
when system integrity is compromised and that the identified problem be 
fully corrected and documented within 15 days of first discovery.

F. Reporting and Recordkeeping Requirements

1. Compliance Certification
    Comment: The commenters note that there seems to be conflict 
between Section 63.11603(b), which requires the development and 
retention of compliance certifications and the development, retention, 
and submission of deviation reports when deviations from the 
requirements of the rule exist or have existed. Section III.E of the 
preamble requires that a responsible official sign off that all the 
requirements were met in the preceding month within 15 days of the end 
of each month. Two commenters recommend that the required records 
suffice in demonstrating compliance. Another commenter believes that 
the submission of a deviation report and annual certification when 
deviations have occurred during a calendar year will assist regulated 
entities in maintaining compliance and will assist the regulatory 
agencies in compliance oversight.
    Response: We do not believe that a conflict exists between the 
compliance certification requirements and the deviation reports. The 
compliance certifications of section 63.11603(b) are the baseline 
requirement to demonstrate ongoing compliance with the standard. 
However, if a deviation occurs during the previous twelve month period, 
the facility must prepare and submit a deviation report, which details 
the specific area(s) of noncompliance with the standard and efforts 
undertaken to return the source to compliance. These are two separate 
requirements, and the latter applies in the event of a deviation. 
Submission of the deviation report is necessary so that the regulatory 
agency remains apprised of the ongoing compliance status of the 
facility and can focus their compliance assistance and enforcement 
response efforts.
    However, we believe that section Sec.  63.11603(b)(2)(ii), which 
requires that a statement in accordance with Sec.  63.9(h) of the 
General Provisions to be signed by a responsible official, is 
sufficient to ensure compliance with the regulations, and that no 
additional requirement that a responsible official must certify that 
all requirements were met in a particular month by the 15th day of the 
following month is necessary. Therefore, the final rule does not 
include the latter certification requirement.
    These revisions mean that a responsible official must annually 
certify that all requirements have been met. We believe that the annual 
certification by the responsible official is sufficient to ensure that 
the facility has complied with all of the requirements throughout the 
year, and that the additional burden of monthly certification is not 
warranted. In addition, we agree with the commenter that the submission 
of an Annual Compliance Certification and Deviation Report from 
facilities where deviations have occurred during the calendar year will 
assist regulated entities in maintaining compliance and will assist the 
regulatory agencies in compliance oversight.
    Comment: The commenter notes that some facilities have older 
particulate control devices, which while still effective, may not have 
manufacturer information available. The commenter states that sources 
should not be prohibited from using these control

[[Page 63518]]

devices if they meet the emission standards of this subpart, even 
though they no longer have the original paperwork for the device. The 
commenter recommends that if the original records are not available, 
the source should follow best operating practices for the devices.
    Response: We recognize that some facilities may not have, and may 
not be able to obtain, the manufacturer's instructions, despite their 
best efforts. Therefore, we agree with the commenter and will remove 
the reference to the manufacturer's instructions in Sec.  
63.11602(a)(2)(iii) and also remove Sec.  63.11603(c)(3).

G. Baseline Emissions and Emission Reductions

1. Emissions Factors
    Comment: Two commenters say that EPA used old AP-42 emission 
factors which they believe doubles the calculated emissions in 
comparison to the actual emissions. For example, one of the commenters 
states that EPA used an outdated AP-42 emission factor of 1.5 lbs VOC/
100 lbs of product that was developed based on solvent based coatings 
from the 1950s. The commenter states that these coatings are not 
representative of today's high solids and waterborne coatings. The 
commenters point out that Chapter 8 of EPA's Emission Inventory 
Improvement Program (EIIP) states that the use of source-specific 
emission models/equations is the preferred technique for estimating 
emissions from coatings manufacturing mixing operations since emission 
factors (AP-42) are not as accurate as specific emission models or 
equations. They said that since EPA is unclear whether the facilities 
tested in preparing this factor actually represent a random sample of 
the industry, the AP-42 factor for paint and varnish manufacturing is 
assigned an emission factor rating of C. One commenter asks that EPA 
revise its estimates using accurate models and data.
    Response: The EIIP provides four methods for estimating emissions 
from paint, ink, and other coating manufacturing operations: Emission 
factors; source-specific models; mass-balance calculations; and test 
data. In order of preference, the commenter is correct that source-
specific emissions models are preferred to using emission factors. 
However, when the data necessary to run the emissions models are not 
available, the use of emission factors is a reasonable way to estimate 
emissions. The commenters imply that all emission levels for this 
rulemaking were estimated using AP-42 emission factors. This is not the 
case. In fact, for purposes of assessing impacts, including cost-
effectiveness, as presented in the background memoranda (EPA-HQ-OAR-
2008-0053-0070), the HAP emissions from the Paints and Allied Products 
Manufacturing category were calculated using the 2002 National 
Emissions Inventory (NEI) data. The NEI is a national emissions 
inventory that is built from the ``ground up.'' That is, emission 
estimates generated by individual plants and companies are submitted to 
state and local agencies, who then submit the data to EPA for inclusion 
in the NEI. While the basis for all the emission estimates in the NEI 
is not provided, the facilities that submit emissions data to their 
state and local agencies generally use test data, emission models, and 
mass-balance calculations to create their estimates, where such 
information is available. The baseline HAP emissions from the 2002 NEI 
were 4,761 tons per year.
    Emission factor data from AP-42 were used to estimate VOC and PM 
emissions from model plants to estimate the capital and annual costs of 
control equipment for each of the model plants. The fraction of the AP-
42 VOC and PM emissions that are HAP were calculated using the HAP/VOC 
mass fraction obtained from the facilities that reported both HAP and 
VOC emissions in the 2002 NEI database. Using the assumptions from the 
Regulatory Alternative Impacts memorandum (EPA-HQ-OAR-2008-0053-0073) 
regarding the number of facilities that are currently controlled, the 
emission factors from AP-42, and the HAP/VOC mass fractions from the 
2002 NEI, the HAP emissions were estimated to be 4,591 tons per year. A 
comparison between the HAP emissions in the industry-reported NEI 
(4,761 tons/yr) and those estimated from AP-42 factors and HAP 
speciation profiles (4,591) supports EPA's use of the AP-42 factors for 
estimating emissions from the model plants, because the AP-42 factors 
result in a similar estimate of emissions as the NEI database.
    Comment: One commenter states that most of the methylene chloride 
emissions documented by EPA are from facilities that package paint 
stripper/paint remover products, which are specifically excluded from 
this rulemaking. Therefore, according to the commenter, EPA should 
discount any emissions that result from the packaging of methylene-
based paint strippers and paint removers. In addition, the commenter 
indicates that one company that produces nickel-based coatings 
accounted for most nickel emissions from the industry. Again, they 
claim that EPA should discount the nickel emissions from this one 
company. Finally, the commenter says that it appears that EPA 
inadvertently included several pigment manufacturing operations in the 
NEI database, resulting in increased metal emissions for the industry. 
The commenter believes that EPA should remove the emissions associated 
with paint stripper/paint remover packaging; the company that produces 
unique nickel based coatings; and the emissions from pigment 
manufacturing operations from the emissions of the coatings 
manufacturing industry, since these overstated emissions have an impact 
on EPA's cost effectiveness calculations.
    Response: For purposes of assessing the impacts of today's rule, we 
used the 2002 NEI data. The source classification codes (SCC) in the 
2002 NEI database show that the main sources of methylene chloride 
emissions are from general mixing and handling, cleaning, and 
degreasing. None of these SCCs indicate that methylene chloride 
emissions occur during packaging of paint stripper or paint remover 
products. Therefore, we have no reason to believe that the estimated 
methylene chloride emissions used in the baseline emissions (EPA-HQ-
OAR-2008-0053-0070) are incorrect.
    We reviewed the SCCs and process descriptions in the 2002 NEI 
database and did not find any pigment manufacturing facilities. 
Therefore, no adjustments to the 2002 NEI data are needed.
    We reviewed the 2002 NEI emissions data used to develop the 
baseline emissions for the paints and allied products source category 
and found that 60 of the 63 of emission data points used to estimate 
nickel emissions were from combustion sources and should not have been 
included in the baseline emissions. By removing these emission points, 
the total nickel emissions would be reduced by 0.028 tons per year, and 
the total estimated nickel emissions from the paints and allied 
products industry would be reduced by 0.070 tons per year. This 
decrease in nickel emissions would not significantly affect the total 
HAP emissions, which was estimated to be 4,761 tons per year, or the 
total listed HAP emissions which was estimated to be 221.3 tons per 
year. Therefore, we believe that revising the estimated baseline HAP 
emissions would have little or no impact on the cost effectiveness 
calculations.
    We recognize that the paints and allied products manufacturing 
industry has reduced its urban HAP emissions over the past decades. The 
regulations

[[Page 63519]]

being finalized today will ensure that future emissions from paints and 
allied products manufacturing operations will be limited to the same 
level that is being generally achieved today and was determined to be 
GACT. Without such regulations, there is nothing that would limit 
future target HAP emissions from a new paint or allied product 
manufacturing product.

H. Title V Requirements

    Comment: The commenter supports EPA's proposed rule in the 
exemption of the Paints and Allied Products Manufacturing area source 
category from Title V permitting requirements. The commenter believes 
that the proposed recordkeeping and reporting requirements are 
sufficient to determine compliance with the rule, and EPA should 
balance these requirements against the level of resources typically 
present at such smaller sites and the expected amount of emission 
reductions associated with these requirements.
    Another commenter states that to demonstrate that compliance with 
title V would be ``unnecessarily burdensome,'' EPA must show, inter 
alia, that the ``burden'' of compliance is unnecessary. According to 
the commenter, by promulgating title V, Congress plainly indicated that 
it viewed the burden imposed by its requirements as necessary as a 
general rule. The commenter says that these requirements provide many 
benefits that Congress clearly viewed as necessary. Thus, continues the 
commenter, EPA must show why for any given category, special 
circumstances make compliance unnecessary. The commenter maintains that 
EPA has not made that showing for any of the categories it proposes to 
exempt.
    Response: EPA does not agree with the commenter's characterization 
of the demonstration required for determining that title V is 
unnecessarily burdensome for an area source category. As stated above, 
the CAA provides the Administrator discretion to exempt an area source 
category from title V if she determines that compliance with title V 
requirements is ``impracticable, infeasible, or unnecessarily 
burdensome'' on an area source category. See CAA section 502(a). In 
December 2005, in a national rulemaking, EPA interpreted the term 
``unnecessarily burdensome'' in CAA section 502 and developed a four-
factor balancing test for determining whether title V is unnecessarily 
burdensome for a particular area source category, such that an 
exemption from title V is appropriate. See 70 FR 75320, December 19, 
2005 (``Exemption Rule''). In addition to interpreting the term 
``unnecessarily burdensome'' and developing the four-factor balancing 
test in the Exemption Rule, EPA applied the test to certain area source 
categories.
    The four factors that EPA identified in the Exemption Rule for 
determining whether title V is unnecessarily burdensome on a particular 
area source category include: (1) Whether title V would result in 
significant improvements to the compliance requirements, including 
monitoring, recordkeeping, and reporting, that are proposed for an area 
source category (70 FR 75323); (2) whether title V permitting would 
impose significant burdens on the area source category and whether the 
burdens would be aggravated by any difficulty the sources may have in 
obtaining assistance from permitting agencies (70 FR 75324); (3) 
whether the costs of title V permitting for the area source category 
would be justified, taking into consideration any potential gains in 
compliance likely to occur for such sources (70 FR 75325); and (4) 
whether there are sufficient implementation and enforcement programs in 
place to assure compliance with the NESHAP for the area source 
category, without relying on title V permits (70 FR 75326).\9\ 
---------------------------------------------------------------------------

    \9\ In the Exemption Rule, in addition to determining whether 
compliance with title V requirements would be unnecessarily 
burdensome on an area source category, we considered, consistent 
with the guidance provided by the legislative history of section 
502(a), whether exempting the area source category would adversely 
affect public health, welfare or the environment. See 72 FR 15254-
15255, March 25, 2005. As shown above, after conducting the four-
factor balancing test and determining that title V requirements 
would be unnecessarily burdensome on the area source categories at 
issue here, we examined whether the exemption from title V would 
adversely affect public health, welfare and the environment, and 
found that it would not.
---------------------------------------------------------------------------

    In discussing the above factors in the Exemption Rule, we explained 
that we considered 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 75323. Thus, we concluded that not all 
of the four factors must weigh in favor of exemption for EPA to 
determine that title V is unnecessarily burdensome for a particular 
area source category. Instead, the factors are to be considered in 
combination, and EPA determines whether the factors, taken together, 
support an exemption from title V for a particular source category.
    The commenter asserts that ``EPA must show * * * that the `burden' 
of compliance is unnecessary.'' This is not, however, one of the four 
factors that we developed in the Exemption Rule in interpreting the 
term ``unnecessarily burdensome'' in CAA section 502, but rather a new 
test that the commenter maintains EPA ``must'' meet in determining what 
is ``unnecessarily burdensome'' under CAA section 502. EPA did not re-
open its interpretation of the term ``unnecessarily burdensome'' in CAA 
section 502 in the June 1, 2009 proposed rule for the category at issue 
in this rule. Rather, we applied the four-factor balancing test 
articulated in the Exemption Rule to the source category. Had we sought 
to re-open our interpretation of the term ``unnecessarily burdensome'' 
in CAA section 502 and modify it from what was articulated in the 
Exemption Rule, we would have stated so in the June 1, 2009 proposed 
rule and solicited comments on a revised interpretation, which we did 
not do. Accordingly, we reject the commenter's attempt to create a new 
test for determining what constitutes ``unnecessarily burdensome'' 
under CAA section 502, as that issue falls outside the purview of this 
rulemaking.\10\ 
---------------------------------------------------------------------------

    \10\ If the commenter objected to our interpretation of the term 
``unnecessarily burdensome'' in the Exemption Rule, (s)he should 
have commented on and challenged that rule. However, any challenge 
to the Exemption Rule is now time-barred by CAA section 307(b). 
Although we received comments on the title V Exemption Rule during 
the rulemaking process, no one sought judicial review of that rule.
---------------------------------------------------------------------------

    Furthermore, we believe that the commenter's position that ``EPA 
must show * * * that the ``burden'' of compliance is unnecessary'' is 
unreasonable and contrary to Congressional intent concerning the 
applicability of title V to area sources. Congress intended to treat 
area sources differently under title V, as it expressly authorized the 
EPA Administrator to exempt such sources from the requirements of title 
V at her discretion. There are several instances throughout the CAA 
where Congress chose to treat major sources differently than non-major 
sources, as it did in CAA section 502. Moreover, although the commenter 
espouses a new interpretation of the term ``unnecessarily burdensome'' 
in CAA section 502 and attempts to create a new test for determining 
whether the requirements of title V are ``unnecessarily burdensome'' 
for an area source category, the commenter does not explain why EPA's 
interpretation of the term ``unnecessarily burdensome'' is arbitrary, 
capricious or otherwise not in accordance with law. We maintain that

[[Page 63520]]

our interpretation of the term ``unnecessarily burdensome'' in section 
502, as set forth in the Exemption Rule, is reasonable.
    Comment: One commenter states that exempting a source category from 
title V permitting requirements deprives both the public generally and 
individual members of the public who would obtain and use permitting 
information for the benefit of citizen oversight and enforcement that 
Congress plainly viewed as necessary. According to the commenter, the 
text and legislative history of the CAA provide that Congress intended 
ordinary title V permits. The commenter also says that EPA does not 
claim, far less demonstrate with substantial evidence, that citizens 
have the same ability to obtain emissions and compliance information 
about air toxics sources and to be able to use that information in 
enforcement actions and in public policy decisions on a State and local 
level. The commenter states that Congress did not think that 
enforcement by States or other government entities was enough; if it 
had, Congress would not have enacted the citizen suit provisions, and 
the legislative history of the CAA would not show that Congress viewed 
citizens' access to information and ability to enforce CAA requirements 
as highly important, both as an individual right and as a crucial means 
to ensuring compliance. According to the commenter, if a source does 
not have a title V permit, it is difficult or impossible--depending on 
the laws, regulations, and practices of the State in which the source 
operates--for a member of the public to obtain relevant information 
about its emissions and compliance status. The commenter states that, 
likewise, it is difficult or impossible for citizens to bring 
enforcement actions. The commenter continues that EPA does not claim--
far less demonstrate with substantial evidence, as would be required--
that citizens would have the same ability to obtain compliance and 
emissions information about sources in the categories it proposes to 
exempt without title V permits. The commenter also says that EPA does 
not claim, far less demonstrate with substantial evidence, that 
citizens would have the same enforcement ability. Thus, according to 
the commenter, the exemptions EPA proposes plainly eliminate benefits 
that Congress thought necessary. The commenter claims that, to justify 
its exemptions, EPA would have to show that the informational and 
enforcement benefits that Congress intended title V to confer--benefits 
which the commenter argues are eliminated by the exemptions--are for 
some reason unnecessary with respect to the categories it proposes to 
exempt. The commenter concludes that EPA does not even acknowledge 
these benefits to title V, far less explain why they are unnecessary, 
and that for this reason alone, EPA's proposed exemptions are unlawful 
and arbitrary.
    Response: Once again, the commenter attempts to create a new test 
for determining whether the requirements of title V are ``unnecessarily 
burdensome'' on an area source category. Specifically, the commenter 
argues that EPA does not claim or demonstrate with substantial evidence 
that citizens would have the same access to information and the same 
ability to enforce under these NESHAP, absent title V. The commenter's 
position represents a significant revision of the fourth factor that 
EPA developed in the Exemption Rule in interpreting the term 
``unnecessarily burdensome'' in CAA section 502. For all of the reasons 
explained above, the commenter's attempt to create a new test for EPA 
to meet in determining whether title V is ``unnecessarily burdensome'' 
on an area source category cannot be sustained. This rulemaking did not 
re-open EPA's interpretation of the term ``unnecessarily burdensome'' 
in CAA section 502. In any event, EPA's interpretation is reasonable. 
Furthermore, the commenter's statements do not demonstrate a flaw in 
EPA's application of the four-factor balancing test to the specific 
facts of the sources we are exempting, nor do the comments provide a 
basis for the Agency to reconsider the exemption as we are finalizing 
it.
    EPA reasonably applied the four factors to the facts of the source 
category at issue in this rule, and the commenter has not identified 
any flaw in EPA's application of the four-factor test to the area 
source category at issue here. Moreover, as explained in the proposal, 
we considered implementation and enforcement issues in the fourth 
factor of the four-factor balancing test. Specifically, the fourth 
factor of EPA's unnecessarily burdensome analysis provides that EPA 
will consider whether there are implementation and enforcement programs 
in place that are sufficient to assure compliance with the NESHAP 
without relying on title V permits. See 70 FR 75326.
    In applying the fourth factor here, EPA determined that there are 
adequate enforcement programs in place to assure compliance with the 
CAA. As stated in the proposal, we believe that state-delegated 
programs are sufficient to assure compliance with the NESHAP and that 
EPA retains authority to enforce this NESHAP under the CAA. 74 FR 
26152. We also indicated that States and EPA often conduct voluntary 
compliance assistance, outreach, and education programs to assist 
sources, and that these additional programs will supplement and enhance 
the success of compliance with this NESHAP. 74 FR 26152. The commenter 
does not challenge the conclusion that there are adequate State and 
Federal programs in place to ensure compliance with and enforcement of 
the NESHAP. Instead, the commenter provides an unsubstantiated 
assertion that information about compliance by the area sources with 
these NESHAP will not be as accessible to the public as information 
provided to a State pursuant to title V. In fact, the commenter does 
not provide any information that States will treat information 
submitted under this NESHAP differently than information submitted 
pursuant to a title V permit.
    Even accepting the commenter's assertions that it is more difficult 
for citizens to enforce the NESHAP absent a title V permit, in 
evaluating the fourth factor in EPA's balancing test EPA concluded that 
there are adequate implementation and enforcement programs in place to 
enforce the NESHAP. The commenter has provided no information to the 
contrary or explained how the absence of title V actually impairs the 
ability of citizens to enforce the provisions of the NESHAP.
    Comment: One commenter explains that title V provides important 
monitoring benefits, and, according to the commenter, EPA admits that 
title V monitoring, ``may improve compliance * * * by requiring 
monitoring * * * to assure compliance with emission limitations and 
control technology requirements imposed in the standard.'' (74 FR at 
26151) The commenter further states that ``EPA argues that `the 
monitoring, recordkeeping, and reporting requirements in this proposed 
rule are sufficient to assure compliance with the requirements of the 
proposed rule.' '' Id. The commenter maintains that EPA made conclusory 
assertions and that the Agency failed to provide any evidence to 
demonstrate that the proposed monitoring requirements will assure 
compliance with the NESHAP for the exempt sources. The commenter states 
that, for this reason also, its claim that title V requirements are 
``unnecessarily burdensome'' is arbitrary and capricious, and its 
exemption is unlawful, arbitrary, and capricious.
    Response: As noted in the earlier comment, EPA used the four-factor 
test

[[Page 63521]]

to determine if title V requirements were unnecessarily burdensome. In 
the first factor, EPA considers whether imposition of title V 
requirements would result in significant improvements to the compliance 
requirements that are proposed for the area source categories. See 70 
FR 75323. It is in the context of this first factor that EPA evaluates 
the monitoring, recordkeeping, and reporting requirements of the 
proposed NESHAP to determine the extent to which those requirements are 
consistent with the requirements of title V. See 70 FR 75323.
    The commenter asserts that ``EPA argues that `the monitoring, 
recordkeeping, and reporting requirements in this proposed rule are 
sufficient to assure compliance with the requirements of the proposed 
rule.' '' We nowhere state or imply that the only monitoring, 
recordkeeping, and reporting required for the rule is in the form of 
recordkeeping. As stated in the proposal, we required daily, weekly, 
monthly, and yearly testing of particulate control devices, as well as 
annual compliance reports and deviation reports in addition to the 
recordkeeping that serves as monitoring for the particulate control 
devices. The commenter does not provide any evidence that contradicts 
the conclusion that the proposed monitoring, recordkeeping, and 
reporting requirements are sufficient to assure compliance with the 
standards in the rule.
    Based on the foregoing, we considered whether title V monitoring, 
recordkeeping, and reporting requirements would lead to significant 
improvements in the monitoring, recordkeeping, and reporting 
requirements in the proposed NESHAP and determined that they would not. 
We believe that the monitoring, recordkeeping, and reporting 
requirements in this area source rule can assure compliance for those 
sources we are exempting.
    For the reasons described above and in the proposed rule, the first 
factor supports an exemption. Assuming, for the sake of argument, that 
the first factor alone cannot support the exemption, the four-factor 
balancing test requires EPA to examine the factors, in combination, and 
determine whether the factors, viewed together, weigh in favor of 
exemption. See 70 FR 75326. As explained above, we determined that the 
factors, weighed together, support title V exemption for this source 
category.
    Comment: One commenter believes EPA argued that its own belief that 
title V is a ``significant burden'' on area sources further justifies 
its exemption (74 FR 26151). According to the commenter, regardless of 
whether EPA regards the burden as ``significant,'' the Agency may not 
exempt a category from compliance with title V requirements unless 
compliance is ``unnecessarily burdensome.'' The commenter states that, 
regardless, EPA's claims about the alleged significance of the burden 
of compliance are entirely conclusory and could be applied equally to 
any major or area source category. The commenter also states that the 
Agency does not show that the compliance burden is especially great for 
any of the sources it proposes to exempt, and, thus, does not 
demonstrate that the alleged burden necessitates treating them 
differently from other categories by exempting them from compliance 
with title V requirements.
    Response: The commenter appears to take issue with the formulation 
of the second factor of the four-factor balancing test. Specifically, 
the commenter states that EPA must determine that title V compliance is 
``unnecessarily burdensome'' and not a ``significant burden,'' as 
expressed in the second factor of the four-factor balancing test.
    As we have stated before, at proposal we found the burden placed on 
these sources in complying with the title V requirements is significant 
when we applied the four-factor balancing test. We note that the 
commenter, in other parts of comments on the title V exemptions, argues 
that EPA must demonstrate that every title V requirement is 
``unnecessary'' for a particular source category before an exemption 
can be granted, but makes no mention of the ``burden'' of those 
requirements on area sources; here the commenter argues that 
``significant burden'' is not appropriate for the second factor. 
Notwithstanding the commenter's inconsistency, as explained above, the 
four-factor balancing test was established in the Exemption Rule and we 
did not re-open EPA's interpretation of the term ``unnecessarily 
burdensome'' in this rule. As explained above, we maintain that the 
Agency's interpretation of the term ``unnecessarily burdensome,'' as 
set forth in the Exemption Rule and reiterated in the proposal to this 
rule, is reasonable.
    Contrary to the commenter's assertions, we properly analyzed the 
second factor of the four-factor balancing test. See 70 FR 75320. Under 
that factor, EPA considers whether title V permitting would impose a 
significant burden on the area source categories, and whether that 
burden would be aggravated by any difficulty that the sources may have 
in obtaining assistance from the permitting agencies. See 70 FR 75324. 
The commenter appears to assert that the second factor must be 
satisfied for EPA to exempt an area source category from title V, but, 
as explained above, the four factors are considered in combination. We 
have concluded that the second factor, in combination with the other 
factors, supports an exemption for the paints and allied products 
manufacturing area sources that we are exempting from compliance with 
title V in this final rule.
    Therefore, we disagree with the commenter's assertion that EPA's 
finding (i.e., that the burden of obtaining a title V permit is 
significant, and does not equate to the required finding that the 
burden is unnecessary) is misplaced. While EPA could have found that 
the second factor alone could justify the exemption for the sources we 
are exempting in this rule, EPA found that the other three factors also 
support exempting these sources from the title V requirements because 
the permitting requirements are unnecessarily burdensome for the paints 
and allied products manufacturing area sources we are exempting.
    Comment: According to one commenter, EPA argued that compliance 
with title V would not yield any gains in compliance with underlying 
requirements in the relevant NESHAP (74 FR 26152). The commenter stated 
that EPA's conclusory claim could be made equally with respect to any 
major or area source category. According to the commenter, the Agency 
provides no specific reasons to believe, with respect to any of the 
categories it proposes to exempt, that the additional informational, 
monitoring, reporting, certification, and enforcement requirements that 
exist in title V, but not in this NESHAP, would not provide additional 
compliance benefits. The commenter also states that the only basis for 
EPA's claim is, apparently, its beliefs that those additional 
requirements never confer additional compliance benefits. According to 
the commenter, by advancing such argument, EPA merely seeks to elevate 
its own policy judgment over Congress' decisions reflected in the CAA's 
text and legislative history.
    Response: The commenter mischaracterizes the first and third 
factors of the four-factor balancing test and takes out of context 
certain statements in the proposed rule concerning the factors used in 
the balancing test to determine if imposition

[[Page 63522]]

of title V permit requirements is unnecessarily burdensome for the 
source categories. The commenter also mischaracterizes the first factor 
of the four-factor balancing test with regard to determining whether 
imposition of title V would result in significant improvements in 
compliance. In addition, the commenter mischaracterizes the analysis in 
the third factor of the balancing test, which instructs EPA to take 
into account any gains in compliance that would result from the 
imposition of the title V requirements.
    First, EPA nowhere states, nor does it believe, that title V never 
confers additional compliance benefits, as the commenter asserts. While 
EPA recognizes that requiring a title V permit offers additional 
compliance options, the statute provides EPA with the discretion to 
evaluate whether compliance with title V would be unnecessarily 
burdensome to specific area sources. For the sources we are exempting, 
we conclude that requiring title V permits would be unnecessarily 
burdensome.
    Second, the commenter mischaracterizes the first factor by 
asserting that EPA must demonstrate that title V will provide no 
additional compliance benefits. The first factor calls for a 
consideration of ``whether title V would result in significant 
improvements to the compliance requirements, including monitoring, 
recordkeeping, and reporting, that are proposed for an area source 
category.'' Thus, contrary to the commenter's assertion, the inquiry 
under the first factor is not whether title V will provide any 
compliance benefit, but rather whether it will provide significant 
improvements in compliance requirements.
    The monitoring, recordkeeping and reporting requirements in the 
rule are sufficient to assure compliance with the requirements of this 
rule for the sources we are exempting, consistent with the goal in 
title V permitting. For example, in the Notification of Compliance 
Status report, the source must certify that, if necessary, it has 
implemented management practices and installed controls. See 40 CFR 
63.11603 in the final rule. The source must also submit annual 
deviation reports to the permitting agency if there has been a 
deviation in the requirements of the rule. See 40 CFR 63.11501 in the 
final rule. The requirements in the final rule provide sufficient basis 
to assure compliance, and EPA does not believe that the title V 
requirements, if applicable to the sources that we are exempting, would 
offer significant improvements in the compliance of the sources with 
the rule.
    Third, the commenter incorrectly characterizes our statements in 
the proposed rule concerning our application of the third factor. Under 
the third factor, EPA evaluates ``whether the costs of title V 
permitting for the area source category would be justified, taking into 
consideration any potential gains in compliance likely to occur for 
such sources.'' Contrary to what the commenter alleges, EPA did not 
state in the proposed rule that compliance with title V would not yield 
any gains in compliance with the underlying requirements in the 
relevant NESHAP, nor does factor three require such a 
determination.Instead, consistent with the third factor, we considered 
whether the costs of title V are justified in light of any potential 
gains in compliance. In other words, EPA considers the costs of title V 
permitting requirements, including consideration of any improvement in 
compliance above what the rule requires. In considering the third 
factor, we stated, in part, that, ``[b]ecause the costs, both economic 
and non-economic, of compliance with title V are high, and the 
potential for gains in compliance is low, title V permitting is not 
justified for this source category. Accordingly, the third factor 
supports title V exemptions for these area source categories.'' See 74 
FR 26152.
    Most importantly, EPA considered all four factors in the balancing 
test in determining whether title V was unnecessarily burdensome on the 
area source category we are exempting from title V in this final rule. 
The commenter's statements do not demonstrate a flaw in EPA's 
application of the four-factor balancing test to the specific facts of 
the sources we are exempting, nor do the comments provide sufficient 
basis for the Agency to reconsider its.
    Comment: According to one commenter, EPA argued that alternative 
State implementation and enforcement programs assure compliance with 
the underlying NESHAP without relying on title V permits (74 FR 26152). 
The commenter states that again, EPA's claim is entirely conclusory and 
generic. The commenter also states that ``the Agency does not identify 
any aspect of any of the underlying NESHAP showing that with respect to 
these specific NESHAP--unlike all the other major and area source 
NESHAP it has issued without title V exemptions--title V compliance is 
unnecessary'' (emphasis added). Instead, according to the commenter, 
EPA merely pointed to existing State requirements and the potential for 
actions by States and EPA that are generally applicable to all 
categories (along with some small business and voluntary programs). The 
commenter says that, absent a showing by EPA that distinguishes the 
sources it proposes to exempt from other sources, the Agency's argument 
boils down to the generic and conclusory claim that it generally views 
title V requirements as unnecessary. The commenter states that, while 
this may be EPA's view, it was not Congress' view when Congress enacted 
title V, and a general view that title V is unnecessary, does not 
suffice to show that title V compliance is unnecessarily burdensome.
    Response: Contrary to the commenters' assertions, EPA does believe 
that title V is appropriate under certain circumstances; we think that 
exemption from title V is appropriate for those sources.
    In this comment, the commenter again takes issue with the Agency's 
test for determining whether title V is unnecessarily burdensome, as 
developed in the Exemption Rule. Our interpretation of the term 
``unnecessarily burdensome'' is not the subject of this rulemaking. In 
any event, as explained above, we believe the Agency's interpretation 
of the term ``unnecessarily burdensome'' is a reasonable one. To the 
extent the commenter asserts that our application of the fourth factor 
is flawed, we disagree. The fourth factor involves a determination as 
to whether there are implementation and enforcement programs in place 
that are sufficient to assure compliance with the rule without relying 
on the title V permits. In discussing the fourth factor in the 
proposal, EPA states that, prior to delegating implementation and 
enforcement to a State, EPA must ensure that the State has programs in 
place to enforce the rule. EPA believes that these programs will be 
sufficient to assure compliance with the rule. EPA also retains 
authority to enforce this NESHAP anytime under CAA sections 112, 113, 
and 114. EPA also noted other factors in the proposal that together are 
sufficient to assure compliance with this area source NESHAP. The 
commenter argues that EPA cannot exempt any of the area sources in 
these categories from title V permitting requirements because ``[t]he 
agency does not identify any aspect of any of the underlying NESHAP 
showing that with respect to these specific NESHAP--unlike all the 
other major and area source NESHAP it has issued without title V 
exemptions--title V compliance is unnecessary'' (emphasis added). As an 
initial matter, EPA cannot exempt major sources from title V 
permitting. 42 U.S.C. 502(a). As

[[Page 63523]]

for area sources, the standard that the commenter proposes--that EPA 
must show that ``title V compliance is unnecessary''--is not consistent 
with the standard the Agency established in the Exemption Rule and 
applied in the proposed rule in determining if title V requirements are 
unnecessarily burdensome.
    Furthermore, we disagree that the basis for excluding the paints 
and allied products manufacturing area sources we are exempting from 
title V requirements is generally applicable to sources in any source 
category. As explained in the proposal preamble and above, we balanced 
the four factors considering the facts and circumstances of the source 
category at issue in this rule. For example, in assessing whether the 
costs of requiring the sources to obtain a title V permit were 
burdensome, we concluded that the high relative costs would not be 
justified given that there is likely to be little or no potential gain 
in compliance based on the control device requirements and management 
practices of this rule.
    Comment: One commenter states that, as EPA concedes, the 
legislative history of the CAA shows that Congress did not intend EPA 
to exempt source categories from compliance with title V unless doing 
so would not adversely affect public health, welfare, or the 
environment. Furthermore, the commenter states that EPA conceded this 
point. See 74 FR 26152. Nonetheless, according to the commenter, EPA 
does not make any showing that its exemptions would not have adverse 
impacts on health, welfare, and the environment. The commenter says 
that instead, EPA offered only the conclusory assertion that ``the 
level of control would remain the same,'' whether title V permits are 
required or not (74 FR 26512). The commenter continues by stating that 
EPA relied entirely on the conclusory arguments advanced elsewhere in 
the proposal that compliance with title V would not yield additional 
compliance with the underlying NESHAP. The commenter states that those 
arguments are wrong for the reasons given above, and, therefore, EPA's 
claims about public health, welfare, and the environment are wrong too. 
The commenter states that Congress enacted title V for a reason: To 
assure compliance with all applicable requirements and to empower 
citizens to get information and enforce the CAA. The commenter said 
that those benefits--of which EPA's proposed rule deprives the public--
would improve compliance with the underlying standards and, thus, have 
benefits for public health, welfare, and the environment. According to 
the commenter, EPA has not demonstrated that these benefits are 
unnecessary with respect to any specific source category, but again, 
simply rests on its own apparent belief that they are never necessary. 
The commenter concludes that, for the reasons given above, that the 
attempt to substitute EPA's judgment for Congress' is unlawful and 
arbitrary.
    Response: Congress gave the Administrator the authority to exempt 
area sources from compliance with title V if, in his or her discretion, 
the Administrator ``finds that compliance with [title V] is 
impracticable, infeasible, or unnecessarily burdensome.'' See CAA 
section 502(a). EPA has interpreted one of the three justifications for 
exempting area sources ``unnecessarily burdensome,'' as requiring 
consideration of the four factors discussed above. At proposal, EPA 
applied these four factors to the paints and allied products 
manufacturing area source category subject to this rule, and concluded 
that requiring title V for this area source category would be 
unnecessarily burdensome. We maintain that this conclusion is accurate 
for the sources we are exempting in this rule.
    In addition to determining that title V would be unnecessarily 
burdensome on the area source category, as in the Exemption Rule, EPA 
also considered, consistent with our interpretation of the legislative 
history, whether exempting the area source categories would adversely 
affect public health, welfare, or the environment. As explained in the 
proposal preamble, we concluded that exempting the area source category 
at issue in this rule would not adversely affect public health, 
welfare, or the environment because the level of control would be the 
same even if title V applied. We further explained in the proposal 
preamble that the title V permit program does not generally impose new 
substantive air quality control requirements on sources, but instead 
requires that certain procedural measures be followed, particularly 
with respect to determining compliance with applicable requirements. 
The commenter has not provided any information to demonstrate that the 
exemption from title V that we are finalizing will adversely affect 
public health, welfare, or the environment.

VI. Impacts of the Final Standards

    Existing paints and allied products manufacturing facilities have 
made significant emission reductions since 1990 through product 
reformulation, process and cleaning changes, installation of control 
equipment, and as a result of OSHA regulations. Affected sources appear 
to be well-controlled, and our GACT determination reflects such 
controls. We estimate that the only impacts associated with this rule 
are the capital and annual costs of installing and operating a 
particulate control device, the capital cost of adding lids or covers 
to process vessels, and the compliance requirements (i.e., reporting, 
recordkeeping, and testing).
    We estimate that 21 percent of the facilities, or 460 area sources, 
will be required to install particulate control equipment. The total 
capital costs for installing particulate control devices is estimated 
to be $8.1 million and the annual cost is estimated to be $3.1 million 
per year.
    We estimate that 110 facilities will be required to install lids or 
covers on their process, mixing, and storage vessels. We estimate that 
it will cost $38,000 in total capital costs and $5,500 annually. 
However, the rule will also provide a cost savings to these same 
facilities, because they will have more coatings product at the end of 
the manufacturing process.
    The other affected facilities will incur costs only for submitting 
the notifications and for completing the annual compliance 
certification. The cost associated with recordkeeping and the one-time 
reporting requirements is estimated to be $147 per facility.
    Through compliance with this rule, these facilities will reduce 
total PM emissions by 6,300 tons/yr (5,700 Mg/yr), total metal HAP 
emissions by 4.2 tons/yr (3.8 Mg/yr), and listed urban metal HAP 
(cadmium, chromium, lead, nickel) emissions by 1.6 tons/yr (1.5 Mg/yr). 
We estimate that requiring the use of covers on process vessels will 
reduce VOC emissions by 1,700 tons/yr (1,600 Mg/yr), volatile HAP 
emissions by 169 tons/yr (153 Mg/yr), and listed urban volatile HAP 
(benzene, methylene chloride) emissions by 4.3 tons/yr (3.9 Mg/yr).

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is a ``significant regulatory action'' under the terms 
of Executive Order 12866 (58 FR 51735, October 4, 1993), and is 
therefore subject to review under the Executive Order.

B. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under

[[Page 63524]]

the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information 
collection requirements are not enforceable until OMB approves them.
    The recordkeeping and reporting requirements in this final rule are 
based on the requirements in EPA's NESHAP General Provisions (40 CFR 
part 63, subpart A). The recordkeeping and reporting requirements in 
the General Provisions are mandatory pursuant to section 114 of the CAA 
(42 U.S.C. 7414). All information other than emissions data submitted 
to EPA pursuant to the information collection requirements for which a 
claim of confidentiality is made is safeguarded according to CAA 
section 114(c) and the Agency's implementing regulations at 40 CFR part 
2, subpart B.
    This final NESHAP requires Paints and Allied Products Manufacturing 
area sources to submit an Initial Notification and a Notification of 
Compliance Status according to the requirements in 40 CFR 63.9 of the 
General Provisions (subpart A). Records are required to demonstrate 
compliance with the opacity and visual emissions (VE) requirements. The 
owner or operator of a paints and allied products manufacturing 
facility also is subject to notification and recordkeeping requirements 
in 40 CFR 63.9 and 63.10 of the General Provisions (subpart A), 
although we have deemed that annual compliance reports are sufficient 
instead of semiannual reports.
    The annual burden for this information collection averaged over the 
first three years of this ICR is estimated to be a total of 2,887 labor 
hours per year at a cost of $322,009 or approximately $147 per 
facility. The average annual reporting burden is almost 3 hours per 
response, with approximately 2 responses per facility for 730 
respondents. There are no capital and operating and maintenance costs 
associated with the final rule requirements for existing sources. 
Burden is defined at 5 CFR 1320.3(b).
    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. EPA displays OMB control numbers in 
various ways. For example, EPA lists OMB control numbers for EPA's 
regulations in 40 CFR part 9, which we amend periodically. 
Additionally, we may display the OMB control number in another part of 
the CFR, or in a valid Federal Register notice, or by other appropriate 
means. The OMB control number display will become effective the 
earliest of any of the methods authorized in 40 CFR part 9.
    When this ICR is approved by OMB, the Agency will publish a Federal 
Register notice announcing this approval and displaying the OMB control 
number for the approved information collection requirements contained 
in this final rule. We will also publish a technical amendment to 40 
CFR part 9 in the Federal Register to consolidate the display of the 
OMB control number with other approved information collection 
requirements.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule 
would not have a significant economic impact on a substantial number of 
small entities. Small entities include small businesses, small not-for-
profit enterprises, and small governmental jurisdictions.
    For the purposes of assessing the impacts of this 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 at 13 CFR 121.201; (2) a small governmental jurisdiction that is 
a government of a city, county, town, school district, or special 
district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of this rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This rule is 
estimated to impact a total of almost 2,200 area source paints and 
allied products manufacturing facilities; over ninety percent of these 
facilities are estimated to be small entities. We have determined that 
small entity compliance costs, as assessed by the facilities' cost-to-
sales ratio, are expected to be approximately 0.13 percent for the 
estimated 460 facilities that would not initially be in compliance. 
Although this final rule contains requirements for new area sources, we 
are not aware of any new area sources being constructed now or planned 
in the next 3 years, and consequently, we did not estimate any impacts 
for new sources.
    Although this final rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce such impact. The standards represent practices and 
controls that are common throughout the paints and allied products 
manufacturing industry. The standards also require only the essential 
recordkeeping and reporting needed to demonstrate and verify 
compliance. These standards were developed in consultation with small 
business representatives on the state and national levels and the trade 
associations that represent small businesses.

D. Unfunded Mandates Reform Act

    This final rule does not contain a Federal mandate that may result 
in expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or to the private sector in any one 
year. This rule is not expected to impact State, local, or tribal 
governments. The nationwide annualized cost of this rule for affected 
industrial sources is $3.1 million/yr. Thus, this rule would not be 
subject to the requirements of sections 202 and 205 of the Unfunded 
Mandates Reform Act (UMRA).
    This final rule would also not be subject to the requirements of 
section 203 of UMRA because it contains no regulatory requirements that 
might significantly or uniquely affect small governments. The rule 
would not apply to such governments and would impose no obligations 
upon them.

E. Executive Order 13132: Federalism

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

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

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

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

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

[[Page 63525]]

not subject to EO 13045 because it is based solely on technology 
performance.

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 (66 FR 28355, May 22, 2001) because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Further, we have concluded that this 
rule is not likely to have any adverse energy effects. Existing energy 
requirements for this industry would not be significantly impacted by 
the additional controls or other equipment that may be required by this 
rule.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113 (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This rulemaking involves technical standards. Therefore, the Agency 
conducted a search to identify potentially applicable voluntary 
consensus standards. However, we identified no such standards, and none 
were brought to our attention in comments. Therefore, EPA has decided 
to use EPA Method 203C and EPA Method 22.
    Under Sec.  63.7(f) and Sec.  63.8(f) of Subpart A of the General 
Provisions, a source may apply to EPA for permission to use alternative 
test methods or alternative monitoring requirements in place of any 
required testing methods, performance specifications, or procedures in 
the final rule and amendments.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule would not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. This rule establishes national standards for the 
Paints and Allied Products Manufacturing area source category; this 
will reduce HAP emissions, therefore decreasing the amount of emissions 
to which all affected populations are exposed.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of Congress and to the Comptroller General 
of the United States. EPA will submit a report containing this final 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of this final rule in the Federal Register. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This action is not a ``major rule'' as defined by 
5 U.S.C. 804(2). This final rule will be effective on December 3, 2009.

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous 
substances, Reporting and recordkeeping requirements.

    Dated: November 16, 2009.
Lisa P. Jackson,
Administrator.


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

PART 63--[AMENDED]

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

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

Subpart A--[Amended]

0
2. Part 63 is amended by adding subpart CCCCCCC to read as follows:
Subpart CCCCCCC--National Emission Standards for Hazardous Air 
Pollutants for Area Sources: Paints and Allied Products Manufacturing

Applicability and Compliance Dates

Sec.
63.11599 Am I subject to this subpart?
63.11600 What are my compliance dates?

Standards, Monitoring, and Compliance Requirements

63.11601 What are the standards for new and existing paints and 
allied products manufacturing facilities?
63.11602 What are the performance test and compliance requirements 
for new and existing sources?
63.11603 What are the notification, reporting, and recordkeeping 
requirements?
63.11604 [Reserved]

Other Requirements and Information

63.11605 What General Provisions apply to this subpart?
63.11606 Who implements and enforces this subpart?
63.11607 What definitions apply to this subpart?
63.11608-63.11638 [RESERVED]

Tables to Subpart CCCCCCC of Part 63

Table 1 to Subpart CCCCCCC of Part 63--Applicability of General 
Provisions to Subpart CCCCCCC

Subpart CCCCCCC--National Emission Standards for Hazardous Air 
Pollutants for Area Sources: Paints and Allied Products 
Manufacturing

Applicability and Compliance Dates


Sec.  63.11599  Am I subject to this subpart?

    (a) You are subject to this subpart if you own or operate a 
facility that performs paints and allied products manufacturing that is 
an area source of hazardous air pollutant (HAP) emissions and 
processes, uses, or generates materials containing HAP, as defined in 
Sec.  63.11607.
    (b) The affected source consists of all paints and allied products 
manufacturing processes that process, use, or generate materials 
containing HAP at the facility.
    (1) An affected source is existing if you commenced construction or 
reconstruction of the affected source on or before June 1, 2009.
    (2) An affected source is new if you commenced construction or

[[Page 63526]]

reconstruction of the affected source on or after June 1, 2009.
    (3) A facility becomes an affected source when you commence 
processing, using, or generating materials containing HAP, as defined 
in Sec.  63.11607.
    (c) You are exempt from the obligation to obtain a permit under 40 
CFR part 70 or 40 CFR part 71, provided you are not otherwise required 
by law to obtain a permit under 40 CFR 70.3(a) or 40 CFR 71.3(a). 
Whether you have a title V permit or not, you must continue to comply 
with the provisions of this subpart.
    (d) An affected source is no longer subject to this subpart if the 
facility no longer processes, uses, or generates materials containing 
HAP and does not plan to process, use or generate materials containing 
HAP in the future.
    (e) The standards of this subpart do not apply to research and 
development facilities, as defined in section 112(c)(7) of the CAA.


Sec.  63.11600  What are my compliance dates?

    (a) If you own or operate an existing affected source, you must 
achieve compliance with the applicable provisions in this subpart by 
December 3, 2012.
    (b) If you own or operate a new affected source, you must achieve 
compliance with the applicable provisions of this subpart by December 
3, 2009, or upon startup of your affected source, whichever is later.
    (c) If you own or operate a facility that becomes an affected 
source in accordance with Sec.  63.11599(b)(3) after the applicable 
compliance date in paragraphs (a) or (b) of this section, you must 
achieve compliance with the applicable provisions of this subpart by 
the date that you commence processing, using, or generating materials 
containing HAP, as defined in Sec.  63.11607.

Standards, Monitoring, and Compliance Requirements


Sec.  63.11601  What are the standards for new and existing paints and 
allied products manufacturing facilities?

    (a) For each new and existing affected source, you must comply with 
the requirements in paragraphs (a)(1) through (6) of this section. 
These requirements apply at all times.
    (1) You must add the dry pigments and solids that contain compounds 
of cadmium, chromium, lead, or nickel and operate a capture system that 
minimizes fugitive particulate emissions during the addition of dry 
pigments and solids that contain compounds of cadmium, chromium, lead, 
or nickel to a process vessel or to the grinding and milling process.
    (2) You must capture particulate emissions and route them to a 
particulate control device meeting the requirements of paragraph (a)(6) 
of this section during the addition of dry pigments and solids that 
contain compounds of cadmium, chromium, lead, or nickel to a process 
vessel. This requirement does not apply to pigments and other solids 
that are in paste, slurry, or liquid form.
    (3) You must: (i) Capture particulate emissions and route them to a 
particulate control device meeting the requirements of paragraph (a)(6) 
of this section during the addition of dry pigments and solids that 
contain compounds of cadmium, chromium, lead, or nickel to a process 
vessel; or
    (ii) Add pigments and other solids that contain compounds of 
cadmium, chromium, lead, or nickel only in paste, slurry, or liquid 
form.
    (4) You must: (i) Capture particulate emissions and route them to a 
particulate control device meeting the requirements of paragraph (a)(6) 
of this section during the addition of dry pigments and solids that 
contain compounds of cadmium, chromium, lead, or nickel to the grinding 
and milling process; or
    (ii) Add pigments and other solids that contain compounds of 
cadmium, chromium, lead, or nickel to the grinding and milling process 
only in paste, slurry, or liquid form.
    (5) You must: (i) Capture particulate emissions and route them to a 
particulate control device meeting the requirements of paragraph (a)(6) 
of this section during the grinding and milling of materials containing 
compounds of cadmium, chromium, lead, or nickel;
    (ii) Fully enclose the grinding and milling equipment during the 
grinding and milling of materials containing compounds of cadmium, 
chromium, lead, or nickel; or
    (iii) Ensure that the pigments and solids are in the solution 
during the grinding and milling of materials containing compounds of 
cadmium, chromium, lead, or nickel.
    (6) The visible emissions from the particulate control device 
exhaust must not exceed 10-percent opacity for particulate control 
devices that vent to the atmosphere. This requirement does not apply to 
particulate control devices that do not vent to the atmosphere.
    (7) [RESERVED]
    (b) For each new and existing affected source, you must comply with 
the requirements in paragraphs (b)(1) through (5) of this section.
    (1) Process and storage vessels that store or process materials 
containing benzene or methylene chloride, except for process vessels 
which are mixing vessels, must be equipped with covers or lids meeting 
the requirements of paragraphs (b)(1)(i) through (iii) of this section.
    (i) The covers or lids can be of solid or flexible construction, 
provided they do not warp or move around during the manufacturing 
process.
    (ii) The covers or lids must maintain contact along at least 90-
percent of the vessel rim. The 90-percent contact requirement is 
calculated by subtracting the length of any visible gaps from the 
circumference of the process vessel, and dividing this number by the 
circumference of the process vessel. The resulting ratio must not 
exceed 90-percent.
    (iii) The covers or lids must be maintained in good condition.
    (2) Mixing vessels that store or process materials containing 
benzene or methylene chloride must be equipped with covers that 
completely cover the vessel, except as necessary to allow for safe 
clearance of the mixer shaft.
    (3) All vessels that store or process materials containing benzene 
or methylene chloride must be kept covered at all times, except for 
quality control testing and product sampling, addition of materials, 
material removal, or when the vessel is empty. The vessel is empty if:
    (i) All materials containing benzene or methylene chloride have 
been removed that can be removed using the practices commonly employed 
to remove materials from that type of vessel, e.g., pouring, pumping, 
and aspirating; and
    (ii) No more than 2.5 centimeters (one inch) depth of residue 
remains on the bottom of the vessel, or no more than 3 percent by 
weight of the total capacity of the vessel remains in the vessel.
    (4) Leaks and spills of materials containing benzene or methylene 
chloride must be minimized and cleaned up as soon as practical, but no 
longer than 1 hour from the time of detection.
    (5) Rags or other materials that use a solvent containing benzene 
or methylene chloride for cleaning must be kept in a closed container. 
The closed container may contain a device that allows pressure relief, 
but does not allow liquid solvent to drain from the container.


Sec.  63.11602  What are the performance test and compliance 
requirements for new and existing sources?

    (a) For each new and existing affected source, you must demonstrate 
initial

[[Page 63527]]

compliance by conducting the inspection and monitoring activities in 
paragraph (a)(1) of this section and ongoing compliance by conducting 
the inspection and testing activities in paragraph (a)(2) of this 
section.
    (1) Initial particulate control device inspections and tests. You 
must conduct an initial inspection of each particulate control device 
according to the requirements in paragraphs (a)(1)(i) through (iii) of 
this section and perform a visible emissions test according to the 
requirements of paragraph (a)(1)(iv) of this section. You must record 
the results of each inspection and test according to paragraph (b) of 
this section and perform corrective action where necessary.You must 
conduct each inspection no later than 180 days after your applicable 
compliance date for each control device which has been operated within 
60 days following the compliance date. For a control device which has 
not been installed or operated within 60 days following the compliance 
date, you must conduct an initial inspection prior to startup of the 
control device.
    (i) For each wet particulate control system, you must verify the 
presence of water flow to the control equipment. You must also visually 
inspect the system ductwork and control equipment for leaks and inspect 
the interior of the control equipment (if applicable) for structural 
integrity and the condition of the control system.
    (ii) For each dry particulate control system, you must visually 
inspect the system ductwork and dry particulate control unit for leaks. 
You must also inspect the inside of each dry particulate control unit 
for structural integrity and condition.
    (iii) An initial inspection of the internal components of a wet or 
dry particulate control system is not required if there is a record 
that an inspection meeting the requirements of this subsection has been 
performed within the past 12 months and any maintenance actions have 
been resolved.
    (iv) For each particulate control device, you must conduct a 
visible emission test consisting of three 1-minute test runs using 
Method 203C (40 CFR part 51, appendix M). The visible emission test 
runs must be performed during the addition of dry pigments and solids 
containing compounds of cadmium, chromium, lead, or nickel to a process 
vessel or to the grinding and milling equipment. If the average test 
results of the visible emissions test runs indicate an opacity greater 
than the applicable limitation in Sec.  63.11601(a), you must take 
corrective action and retest within 15 days.
    (2) Ongoing particulate control device inspections and tests. 
Following the initial inspections, you must perform periodic 
inspections of each PM control device according to the requirements in 
paragraphs (a)(2)(i) or (ii) of this section. You must record the 
results of each inspection according to paragraph (b) of this section 
and perform corrective action where necessary. You must also conduct 
tests according to the requirements in paragraph (a)(2)(iii) of this 
section and record the results according to paragraph (b) of this 
section.
    (i) You must inspect and maintain each wet particulate control 
system according to the requirements in paragraphs (a)(2)(i)(A) through 
(C) of this section.
    (A) You must conduct a daily inspection to verify the presence of 
water flow to the wet particulate control system.
    (B) You must conduct weekly visual inspections of any flexible 
ductwork for leaks.
    (C) You must conduct inspections of the rigid, stationary ductwork 
for leaks, and the interior of the wet control system (if applicable) 
to determine the structural integrity and condition of the control 
equipment every 12 months.
    (ii) You must inspect and maintain each dry particulate control 
unit according to the requirements in paragraphs (a)(2)(ii)(A) and (B) 
of this section.
    (A) You must conduct weekly visual inspections of any flexible 
ductwork for leaks.
    (B) You must conduct inspections of the rigid, stationary ductwork 
for leaks, and the interior of the dry particulate control unit for 
structural integrity and to determine the condition of the fabric 
filter (if applicable) every 12 months.
    (iii) For each particulate control device, you must conduct a 5-
minute visual determination of emissions from the particulate control 
device every 3 months using Method 22 (40 CFR part 60, appendix A-7). 
The visible emission test must be performed during the addition of dry 
pigments and solids containing compounds of cadmium, chromium, lead, or 
nickel to a process vessel or to the grinding and milling equipment. If 
visible emissions are observed for two minutes of the required 5-minute 
observation period, you must conduct a Method 203C (40 CFR part 51, 
appendix M) test within 15 days of the time when visible emissions were 
observed. The Method 203C test will consist of three 1-minute test runs 
and must be performed during the addition of dry pigments and solids 
containing compounds of cadmium, chromium, lead, or nickel HAP to a 
process vessel or to the grinding and milling equipment. If the Method 
203C test runs indicates an opacity greater than the limitation in 
Sec.  63.11601(a)(4), you must comply with the requirements in 
paragraphs (a)(2)(iii)(A) through (C) of this section.
    (A) You must take corrective action and retest using Method 203C 
within 15 days. The Method 203C test will consist of three 1-minute 
test runs and must be performed during the addition of dry pigments and 
solids containing compounds of cadmium, chromium, lead, or nickel to a 
process vessel or to the grinding and milling equipment. You must 
continue to take corrective action and retest each 15 days until a 
Method 203C test indicates an opacity equal to or less than the 
limitation in Sec.  63.11601(a)(6).
    (B) You must prepare a deviation report in accordance with Sec.  
63.11603(b)(3) for each instance in which the Method 203C opacity 
results were greater than the limitation in Sec.  63.11601(a)(6).
    (C) You must resume the visible determinations of emissions from 
the particulate control device in accordance with paragraph (a)(2)(iii) 
of this section 3 months after the previous visible determination.
    (b) You must record the information specified in paragraphs (b)(1) 
through (6) of this section for each inspection and testing activity.
    (1) The date, place, and time;
    (2) Person conducting the activity;
    (3) Technique or method used;
    (4) Operating conditions during the activity;
    (5) Results; and
    (6) Description of correction actions taken.


Sec.  63.11603  What are the notification, reporting, and recordkeeping 
requirements?

    (a) Notifications. You must submit the notifications identified in 
paragraphs (a)(1) and (2) of this section.
    (1) Initial Notification of Applicability. If you own or operate an 
existing affected source, you must submit an initial notification of 
applicability required by Sec.  63.9(b)(2) no later than June 1, 2010. 
If you own or operate a new affected source, you must submit an initial 
notification of applicability required by Sec.  63.9(b)(2) no later 
than 180 days after initial start-up of the operations or June 1, 2010, 
whichever is later. The notification of applicability must include the 
information specified in paragraphs (a)(1)(i) through (iii) of this 
section.

[[Page 63528]]

    (i) The name and address of the owner or operator;
    (ii) The address (i.e., physical location) of the affected source; 
and
    (iii) An identification of the relevant standard, or other 
requirement, that is the basis of the notification and the source's 
compliance date.
    (2) Notification of Compliance Status. If you own or operate an 
existing affected source, you must submit a Notification of Compliance 
Status in accordance with Sec.  63.9(h) of the General Provisions by 
June 3, 2013. If you own or operate a new affected source, you must 
submit a Notification of Compliance Status within 180 days after 
initial start-up, or by June 1, 2010, whichever is later. If you own or 
operate an affected source that becomes an affected source in 
accordance with Sec.  63.11599(b)(3) after the applicable compliance 
date in Sec.  63.11600 (a) or (b), you must submit a Notification of 
Compliance Status within 180 days of the date that you commence 
processing, using, or generating materials containing HAP, as defined 
in 63.11607. This Notification of Compliance Status must include the 
information specified in paragraphs (a)(2)(i) and (ii) of this section.
    (i) Your company's name and address;
    (ii) A statement by a responsible official with that official's 
name, title, phone number, e-mail address and signature, certifying the 
truth, accuracy, and completeness of the notification, a description of 
the method of compliance (i.e., compliance with management practices, 
installation of a wet or dry scrubber) and a statement of whether the 
source has complied with all the relevant standards and other 
requirements of this subpart.
    (b) Annual Compliance Certification Report. You must prepare an 
annual compliance certification report according to the requirements in 
paragraphs (b)(1) through (b)(3) of this section. This report does not 
need to be submitted unless a deviation from the requirements of this 
subpart has occurred. When a deviation from the requirements of this 
subpart has occurred, the annual compliance certification report must 
be submitted along with the deviation report.
    (1) Dates. You must prepare and, if applicable, submit each annual 
compliance certification report according to the dates specified in 
paragraphs (b)(1)(i) through (iii) of this section.
    (i) The first annual compliance certification report must cover the 
first annual reporting period which begins the day of the compliance 
date and ends on December 31.
    (ii) Each subsequent annual compliance certification report must 
cover the annual reporting period from January 1 through December 31.
    (iii) Each annual compliance certification report must be prepared 
no later than January 31 and kept in a readily-accessible location for 
inspector review. If a deviation has occurred during the year, each 
annual compliance certification report must be submitted along with the 
deviation report, and postmarked no later than February 15.
    (2) General Requirements. The annual compliance certification 
report must contain the information specified in paragraphs (b)(2)(i) 
through (iii) of this section.
    (i) Company name and address;
    (ii) A statement in accordance with Sec.  63.9(h) of the General 
Provisions that is signed by a responsible official with that 
official's name, title, phone number, e-mail address and signature, 
certifying the truth, accuracy, and completeness of the notification 
and a statement of whether the source has complied with all the 
relevant standards and other requirements of this subpart; and
    (iii) Date of report and beginning and ending dates of the 
reporting period. The reporting period is the 12-month period beginning 
on January 1 and ending on December 31.
    (3) Deviation Report. If a deviation has occurred during the 
reporting period, you must include a description of deviations from the 
applicable requirements, the time periods during which the deviations 
occurred, and the corrective actions taken. This deviation report must 
be submitted along with your annual compliance certification report, as 
required by paragraph (b)(1)(iii) of this section.
    (c) Records. You must maintain the records specified in paragraphs 
(c)(1) through (4) of this section in accordance with paragraphs (c)(5) 
through (7) of this section, for five years after the date of each 
recorded action.
    (1) As required in Sec.  63.10(b)(2)(xiv), you must keep a copy of 
each notification that you submitted in accordance with paragraph (a) 
of this section, and all documentation supporting any Notification of 
Applicability and Notification of Compliance Status that you submitted.
    (2) You must keep a copy of each Annual Compliance Certification 
Report prepared in accordance with paragraph (b) of this section.
    (3) You must keep records of all inspections and tests as required 
by Sec.  63.11602(b).
    (4) Your records must be in a form suitable and readily available 
for expeditious review, according to Sec.  63.10(b)(1).
    (5) As specified in Sec.  63.10(b)(1), you must keep each record 
for 5 years following the date of each recorded action.
    (6) You must keep each record onsite for at least 2 years after the 
date of each recorded action according to Sec.  63.10(b)(1). You may 
keep the records offsite for the remaining 3 years.
    (e) If you no longer process, use, or generate materials containing 
HAP after December 3, 2009, you must submit a Notification in 
accordance with Sec.  63.11599(d), which must include the information 
specified in paragraphs (e)(1) and (2) of this section.
    (1) Your company's name and address;
    (2) A statement by a responsible official indicating that the 
facility no longer processes, uses, or generates materials containing 
HAP, as defined in Sec.  63.11607, and that there are no plans to 
process, use or generate such materials in the future. This statement 
should also include the date by which the company ceased using 
materials containing HAP, as defined in 63.11607, and the responsible 
official's name, title, phone number, e-mail address and signature.


Sec.  63.11604  [Reserved]

Other Requirements and Information


Sec.  63.11605  What General Provisions apply to this subpart?

    Table 1 of this subpart shows which parts of the General Provisions 
in Sec. Sec.  63.1 through 63.16 apply to you.


Sec.  63.11606  Who implements and enforces this subpart?

    (a) This subpart can be implemented and enforced by the U.S. EPA or 
a delegated authority such as a state, local, or tribal agency. If the 
U.S. EPA Administrator has delegated authority to a State, local, or 
tribal agency pursuant to 40 CFR part 63, subpart E, then that Agency 
has the authority to implement and enforce this subpart. You should 
contact your U.S. EPA Regional Office to find out if this subpart is 
delegated to your state, local, or tribal agency.
    (b) In delegating implementation and enforcement authority of this 
subpart to a state, local, or tribal agency under 40 CFR part 63, 
subpart E, the authorities contained in paragraphs (b)(1) through (4) 
of this section are retained by the Administrator of the U.S. EPA and 
are not transferred to the State, local, or tribal agency.

[[Page 63529]]

    (1) Approval of an alternative nonopacity emissions standard under 
Sec.  63.6(g).
    (2) Approval of a major change to test methods under Sec.  
63.7(e)(2)(ii) and (f). A ``major change to test method'' is defined in 
Sec.  63.90
    (3) Approval of a major change to monitoring under Sec.  63.8(f). A 
``major change to monitoring'' is defined in Sec.  63.90.
    (4) Approval of a major change to recordkeeping/reporting under 
Sec.  63.10(f). A ``major change to recordkeeping/reporting'' is 
defined in Sec.  63.90. As required in Sec.  63.11432, you must comply 
with the requirements of the NESHAP General Provisions (40 CFR part 63, 
subpart A) as shown in the following table.


Sec.  63.11607  What definitions apply to this subpart?

    Terms used in this subpart are defined in the Clean Air Act, Sec.  
63.2, and in this section as follows:
    Construction means the onsite fabrication, erection, or 
installation of an affected source. Addition of new equipment to an 
affected source does not constitute construction, but it may constitute 
reconstruction of the affected source if it satisfies the definition of 
reconstruction in Sec.  63.2.
    Deviation means any instance in which an affected source subject to 
this subpart, or an owner or operator of such a source:
    (1) Fails to meet any requirement or management practices 
established by this subpart;
    (2) Fails to meet any term or condition that is adopted to 
implement a requirement in this subpart and that is included in the 
operating permit for any affected source required to obtain such a 
permit; or
    (3) Fails to meet any emissions limitation or management practice 
in this subpart.
    Dry particulate control system means an air pollution control 
device that uses filtration, impaction, or electrical forces to remove 
particulate matter in the exhaust stream.
    Fabric filter means an air collection and control system that 
utilizes a bag filter to reduce the emissions of metal HAP and other 
particulate matter.
    Material containing HAP means a material containing benzene, 
methylene chloride, or compounds of cadmium, chromium, lead, and/or 
nickel, in amounts greater than or equal to 0.1 percent by weight, as 
shown in formulation data provided by the manufacturer or supplier, 
such as the Material Safety Data Sheet for the material. Benzene and 
methylene chloride are volatile HAP. Compounds of cadmium, chromium, 
lead and/or nickel are metal HAP.
    Paints and allied products means materials such as paints, inks, 
adhesives, stains, varnishes, shellacs, putties, sealers, caulks, and 
other coatings from raw materials that are intended to be applied to a 
substrate and consists of a mixture of resins, pigments, solvents, and/
or other additives.
    Paints and allied products manufacturing means the production of 
paints and allied products, the intended use of which is to leave a 
dried film of solid material on a substrate. Typically, the 
manufacturing processes that produce these materials are described by 
Standard Industry Classification (SIC) codes 285 or 289 and North 
American Industry Classification System (NAICS) codes 3255 and 3259 and 
are produced by physical means, such as blending and mixing, as opposed 
to chemical synthesis means, such as reactions and distillation. Paints 
and allied products manufacturing does not include:
    (1) The manufacture of products that do not leave a dried film of 
solid material on the substrate, such as thinners, paint removers, 
brush cleaners, and mold release agents;
    (2) The manufacture of electroplated and electroless metal films;
    (3) The manufacture of raw materials, such as resins, pigments, and 
solvents used in the production of paints and coatings; and
    (4) Activities by end users of paints or allied products to ready 
those materials for application.
    Paints and allied products manufacturing process means all the 
equipment which collectively function to produce a paint or allied 
product. A process may consist of one or more unit operations. For the 
purposes of this subpart, the manufacturing process includes any, all, 
or a combination of, weighing, blending, mixing, grinding, tinting, 
dilution or other formulation. Cleaning operations, material storage 
and transfer, and piping are considered part of the manufacturing 
process. This definition does not cover activities by end users of 
paints or allied products to ready those materials for application. 
Quality assurance and quality control laboratories are not considered 
part of a paints and allied products manufacturing process. Research 
and development facilities, as defined in section 112(c)(7) of the CAA 
are not considered part of a paints and allied products manufacturing 
process.
    Particulate matter control device means any equipment, device, or 
other article that is designed and/or installed for the purpose of 
reducing or preventing the discharge of metal HAP emissions to the 
atmosphere.
    Process vessel means any stationary or portable tank or other 
vessel of any capacity and in which mixing, blending, diluting, 
dissolving, temporary holding, and other processing steps occur in the 
manufacturing of a coating.
    Responsible official means one of the following:
    (1) For a corporation: A president, secretary, treasurer, or vice 
president of the corporation in charge of a principal business 
function, or any other person who performs similar policy or decision-
making functions for the corporation, or a duly authorized 
representative of such person if the representative is responsible for 
the overall operation of one or more manufacturing, production, or 
operating facilities and either:
    (i) The facilities employ more than 250 persons or have gross 
annual sales or expenditures exceeding $25 million (in second quarter 
1980 dollars); or
    (ii) The delegation of authority to such representative is approved 
in advance by the Administrator.
    (2) For a partnership or sole proprietorship: A general partner or 
the proprietor, respectively.
    (3) For a municipality, State, Federal, or other public agency: 
Either a principal executive officer or ranking elected official. For 
the purposes of this part, a principal executive officer of a Federal 
agency includes the chief executive officer having responsibility for 
the overall operations of a principal geographic unit of the agency 
(e.g., a Regional Administrator of the EPA).
    (4) For affected sources (as defined in this part) applying for or 
subject to a title V permit: ``Responsible official'' shall have the 
same meaning as defined in part 70 or Federal title V regulations in 
this chapter (42 U.S.C. 7661), whichever is applicable.
    Storage vessel means a tank, container or other vessel that is used 
to store volatile liquids that contain one or more of the listed 
volatile HAP, benzene or methylene chloride, as raw material feedstocks 
or products. It also includes objects, such as rags or other containers 
which are stored in the vessel. The following are not considered 
storage vessels for the purposes of this subpart:
    (1) Vessels permanently attached to motor vehicles such as trucks, 
railcars, barges, or ships;
    (2) Pressure vessels designed to operate in excess of 204.9 
kilopascals and without emissions to the atmosphere;

[[Page 63530]]

    (3) Vessels storing volatile liquids that contain HAP only as 
impurities;
    (4) Wastewater storage tanks; and
    (5) Process vessels.
    Wet particulate control device means an air pollution control 
device that uses water or other liquid to contact and remove 
particulate matter in the exhaust stream.


Sec.  63.11608-63.11638  [Reserved]

Tables to Subpart CCCCCCC of Part 63

    As required in Sec.  63.11599, you must meet each requirement in 
the following table that applies to you. Part 63 General Provisions 
that apply for Paints and Allied Products Manufacturing Area Sources:

     Table 1 to Subpart CCCCCCC of Part 63--Applicability of General
   Provisions to Paints and Allied Products Manufacturing Area Sources
------------------------------------------------------------------------
                                                           Applies to
           Citation                    Subject          subpart CCCCCCC
------------------------------------------------------------------------
63.1..........................  Applicability........  Yes.
63.2..........................  Definitions..........  Yes.
63.3..........................  Units and              Yes.
                                 abbreviations.
63.4..........................  Prohibited activities  Yes.
63.5..........................  Preconstruction        No.
                                 review and
                                 notification
                                 requirements.
63.6(a), (b)(1)-(b)(5), (c),    Compliance with        Yes.
 (e)(1), (f)(2), (f)(3), (g),    standards and
 (i), (j).                       maintenance
                                 requirements.
63.7(a), (e), and (f).........  Performance testing    Yes.
                                 requirements.
63.8..........................  Monitoring             No.
                                 requirements.
63.9(a)-(d), (i), and (j).....  Notification           Yes.
                                 Requirements.
63.10(a), (b)(1)..............  Recordkeeping and      Yes.
                                 Reporting.
63.10(d)(1)...................  Recordkeeping and      Yes.
                                 Reporting.
63.11.........................  Control device and     No.
                                 work practice
                                 requirements.
63.12.........................  State authority and    Yes.
                                 delegations.
63.13.........................  Addresses of state     Yes.
                                 air pollution
                                 control agencies and
                                 EPA regional offices.
63.14.........................  Incorporation by       No.
                                 reference.
63.15.........................  Availability of        Yes.
                                 information and
                                 confidentiality.
63.16.........................  Performance track      No.
                                 provisions.
------------------------------------------------------------------------

[FR Doc. E9-27947 Filed 12-2-09; 8:45 am]

BILLING CODE 6560-50-P
