				6560.50

  ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

 [EPA-HQ-OAR-2008-0053; FRL-xxx]

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 [INSERT DATE OF PUBLICATION IN
THE FEDERAL REGISTER].  

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 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 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; and (3) the manufacture of raw materials, such as resins,
pigments, and solvents used in the production of paints and allied
products; and (4) activities by end users of paints or allied products
to ready those materials for application. 

----------------------------------------------------------------Category
	NAICS code	Examples of regulated entities

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

Paint & Coating 	325510	Area source facilities engaged in 

Manufacturing 				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 			325520	Area source facilities primarily

Manufacturing	engaged in manufacturing adhesives, glues, and caulking
compounds.

Printing Ink		325910	Area source facilities primarily  

Manufacturing   			engaged in manufacturing printing  						inkjet inks
and inkjet cartridges.                                                  


All Other			325998	Area source facilities primarily 

Miscellaneous 				engaged in manufacturing indelible

Chemical Product			ink, India ink writing ink, and

and Preparation			stamp pad ink.

Manufacturing					                                                      
    

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

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).

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:
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
[INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER].  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 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. 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. 

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% opacity to 10% 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 § 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 §
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 pollutant (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 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 required to control all CAA
section 112(b) metal HAP.  Similarly, a process vessel that uses only
target volatile HAP 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 [INSERT TWO
YEARS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER].  New
sources are required to comply with the rule requirements upon [INSERT
DATE OF PUBLICATION IN THE FEDERAL REGISTER] 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.  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 chloride (one of
the target volatile HAP) would be part of the affected source and as
such, subject to the process vessel standards.

	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, and lead, and during the grinding and milling of
pigments and solids that contain compounds of cadmium, chromium, nickel,
and 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 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 [INSERT 180
DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], whichever is
later.  Existing affected sources must submit the Initial Notification
no later than [INSERT 180 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL
REGISTER].  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 [INSERT 3 years AND 180 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER] for existing sources, or no later
than 180 days after initial startup, or by [INSERT 180 DAYS AFTER DATE
OF PUBLICATION IN THE FEDERAL REGISTER], 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 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 § 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.  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 §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 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
§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 (m³) 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.  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.  

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 §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 that 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, and 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 §63.9(j) and
also require the record under §63.1(b)(3). 

B. Compliance/Implementation Dates

Comment:  Two commenters state that §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 §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.

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 urban 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, that 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 urban 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
urban HAP.  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 commenters 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 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. 

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.  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 § 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 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).  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.

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 63, Subpart XXXXXX).  In this rule, the commenter states
that the term "adequate emissions capture methods" is defined in
§63.11522 to include "...drawing greater than 85% 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% 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 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.
 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.    

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 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 commenters 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 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 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 on going 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 §63.11603(b)(2)(ii), which requires
that a statement in accordance with §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 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 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 §63.11602(a)(2)(iii)
and also remove §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 the 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 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 urban 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). 

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 categories for which we proposed title V exemptions. 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.

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 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 these
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 Fed. Reg. 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
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
monthly 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 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, installed controls and established monitoring
parameters. See 40 CFR 63.11603 in the final rule. The source must also
submit deviation reports to the permitting agency every 6 months 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 73 FR 58373. 

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 (73 FR 58373).  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 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 categories for which we proposed
exemptions, 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 ton/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 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 Product 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 level 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 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 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 §63.7(f) and §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 [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER].

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

Page 92 of 119

List of Subjects in 40 CFR Part 63

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

________________________

Dated:  November xx, 2009.

________________________

Lisa P. Jackson,

Administrator.

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]

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

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

Subpart A—[AMENDED]

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

§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 one or more of the following HAP:
benzene, methylene chloride, and compounds of cadmium, chromium, lead,
and nickel.  

(b) The affected source consists of all paints and allied products
manufacturing processes that process, use, or generate materials
containing one or more of the following HAP: benzene, methylene
chloride, and compounds of cadmium, chromium, lead, and nickel 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
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 one or more of the following
HAP:  benzene and methylene chloride, which are volatile HAP, and
compounds of cadmium, chromium, lead, and nickel, which are metal HAP. 

 (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
one or more of the following HAP: benzene, methylene chloride, and
compounds of cadmium, chromium, lead, and nickel and does not plan to
process, use or generate these 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. 

§ 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 [INSERT
THREE YEARS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

	(b)  If you own or operate a new affected source, you must achieve
compliance with the applicable provisions of this subpart by [INSERT
AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], 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 §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 one or more of the
following HAP: benzene, methylene chloride, and compounds of cadmium,
chromium, lead, and nickel.

Standards, Monitoring, and Compliance Requirements

§ 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, and nickel 

(2) You must operate a capture system that minimizes fugitive
particulate emissions during the addition of dry pigments and solids
that contain compounds of cadmium, chromium, lead, and nickel to a
process vessel or to the grinding and milling process.

(3) You must capture particulate emissions and route them to a
particulate control device meeting the requirements of paragraph (a)(5)
of this section during the addition of dry pigments and solids that
contain compounds of cadmium, chromium, lead, and nickel to a process
vessel.  This requirement does not apply to pigments and other solids
that are in paste, slurry, or liquid form.  

	(4) You must capture particulate emissions and route them to a
particulate control device meeting the requirements of paragraph (a)(5)
of this section during the addition of dry pigments and solids that
contain compounds of cadmium, chromium, lead, and nickel to the grinding
and milling process.  This requirement does not apply to pigments and
other solids that are in paste, slurry, or liquid form.  

	(5) You must capture particulate emissions and route them to a
particulate control device meeting the requirements of paragraph (a)(4)
of this section during the grinding and milling of materials containing
compounds of cadmium, chromium, lead, and nickel.  This requirement does
not apply if the grinding and milling equipment is fully enclosed or if
the pigments and solids are in solution.

	(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 cover 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.  

(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 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) 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 closed container.  The
closed container may contain a device that allows pressure relief, but
does not allow liquid solvent to drain from the container.

§ 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 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 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, and 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 §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, and
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, and 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
§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, and 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
§63.11601(a)(4).

 (B) You must prepare a deviation report in accordance with §
63.11603(b)(3) of this section for each instance in which the Method
203C opacity results were greater than the limitation in
§63.11601(a)(4).

(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. 

§ 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 § 63.9(b)(2) no later than [INSERT 180 DAYS
AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].  If you own or
operate a new affected source, you must submit an initial notification
of applicability required by § 63.9(b)(2) no later than 180 days after
initial start-up of the operations or [INSERT 180 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER], whichever is later.  The
notification of applicability must include the information specified in
paragraphs (a)(1)(i) through (iii) of this section.

(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 §63.9(h) of the General Provisions by [INSERT
3 YEARS AND 180 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
 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 [INSERT 180 DAYS AFTER DATE OF PUBLICATION IN THE
FEDERAL REGISTER], whichever is later.  If you own or operate an
affected source that becomes an affected source in accordance with
§63.11599(b)(3) after the applicable compliance date in §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 one or more of the following HAP: benzene,
methylene chloride, and compounds of cadmium, chromium, lead, and
nickel.  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 §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 §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
§63.11602(b).

	(4)  Your records must be in a form suitable and readily available for
expeditious review, according to §63.10(b)(1).

	(5)  As specified in §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 §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 that contain
one or more of the following HAP: benzene, methylene chloride, and
compounds of cadmium, chromium, lead, and nickel after [INSERT DATE OF
PUBLICATION IN THE FEDERAL REGISTER], you may choose to submit a
Notification in accordance with §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 that contain one or
more of the following HAP: benzene, methylene chloride, and compounds of
cadmium, chromium, nickel, and lead, 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 one or more of the following HAP: benzene, methylene
chloride, and compounds of cadmium, chromium, nickel, and lead, and the
responsible official’s name, title, phone number, e-mail address and
signature.

§ 63.11604 [RESERVED]

Other Requirements and Information

§ 63.11605 What General Provisions apply to this subpart?

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

§ 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.

	(1) Approval of an alternative nonopacity emissions standard under §
63.6(g).

	(2) Approval of a major change to test methods under 

§ 63.7(e)(2)(ii) and (f). A ‘‘major change to test method’’ 

is defined in §63.90 

	(3) Approval of a major change to monitoring under 

§ 63.8(f). A ‘‘major change to monitoring’’ is defined in 

§ 63.90.

(4) Approval of a major change to recordkeeping/reporting under §
63.10(f). A ‘‘major change to recordkeeping/reporting’’ is
defined in § 63.90. As required in § 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.

§ 63.11607 What definitions apply to this subpart?

Terms used in this subpart are defined in the Clean Air Act, § 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
§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 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.

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, installed, or both, 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 HAP 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;

    (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.

§ 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 PAINTS AND ALLIED PRODUCTS MANUFACTURING AREA SOURCES

	As required in § 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:

Citation	Subject	Applies to subpart CCCCCCC

63.1

63.2

63.3

63.4

63.5

63.6(a),(b)(1)-(b)(5),(c),

(e)(1),(f)(2),

(f)(3),(g),(i),

(j)

63.7(a), (e), and (f)

63.8

63.9(a)-(d),(i), and (j)

63.10(a),(b)(1),

63.10 (d)(1)

63.11

63.12

63.13

63.14

63.15

63.16	Applicability

Definitions

Units and abbreviations

Prohibited activities

Preconstruction review and notification requirements

Compliance with standards and maintenance requirements

Performance testing requirements

Monitoring requirements

Notification Requirements

Recordkeeping and Reporting

Recordkeeping and Reporting

Control device and work practice requirements

State authority and delegations

Addresses of state air pollution control agencies and EPA regional
offices

Incorporation by reference

Availability of information and confidentiality

Performance track provisions	Yes

Yes

Yes

Yes

No

Yes

Yes

No

Yes

Yes

Yes

No

Yes

Yes

No

Yes

No



 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.

 North American Industry Classification System.

 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 one 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.

 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.

 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.

  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.  

 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)). 

 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.

  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.

 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.

 PAGE   

 PAGE   111 

