[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Proposed Rules]
[Pages 4522-4540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1610]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2008-0334; FRL-9621-7]
RIN 2060-AQ89


National Emission Standards for Hazardous Air Pollutants for 
Chemical Manufacturing Area Sources

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of reconsideration of final rule.

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SUMMARY: On October 29, 2009, the EPA promulgated national emission 
standards for the control of hazardous air pollutants for nine area 
source categories in the chemical manufacturing sector: Agricultural 
Chemicals and Pesticides Manufacturing, Cyclic Crude and Intermediate 
Production, Industrial Inorganic Chemical Manufacturing, Industrial 
Organic Chemical Manufacturing, Inorganic Pigments Manufacturing, 
Miscellaneous Organic Chemical Manufacturing, Plastic Materials and 
Resins Manufacturing, Pharmaceutical Production and Synthetic Rubber 
Manufacturing. Following that action, the Administrator received a 
petition for reconsideration. In response to the petition, the EPA is 
reconsidering and requesting comment

[[Page 4523]]

on several provisions of the final rule. The EPA is also proposing 
certain revisions to its approach for addressing malfunctions and 
taking comment on those revisions. The EPA is further soliciting 
comment on the standards applicable during startup and shutdown 
periods, as set forth in the final rule. Additionally, the EPA is 
proposing amendments and technical corrections to the final rule to 
clarify applicability and compliance issues raised by stakeholders 
subject to the final rule.

DATES: Comments. Comments must be received on or before March 30, 2012.
    Public Hearing. If anyone contacts EPA requesting to speak at a 
public hearing by February 9, 2012, a public hearing will be held on 
February 14, 2012. For further information on the public hearing and 
requests to speak, contact Ms. Janet Eck at (919) 541-7946 to verify 
that a hearing will be held. If a public hearing is held, it will be 
held at 10 a.m. at the EPA's Environmental Research Center Auditorium, 
Research Triangle Park, North Carolina, or an alternate site nearby.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0334, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected], Attention Docket ID No. 
EPA-HQ-OAR-2008-0334.
     Fax: (202) 566-9744, Attention Docket ID No. EPA-HQ-OAR-
2008-0334.
     Mail: U.S. Postal Service, send comments to: Air and 
Radiation Docket and Information Center, Environmental Protection 
Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460, Attention Docket ID No. EPA-HQ-OAR-2008-0334.
     Hand Delivery: In person or by courier, deliver comments 
to: EPA Docket Center (2822T), Room 3334, 1301 Constitution Ave., NW., 
Washington, DC 20004. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0334. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or email. The www.regulations.gov Web site is an ``anonymous access'' 
system, which means the EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an email comment directly to the EPA without going through 
www.regulations.gov, your email address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, the EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If the EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the EPA may not 
be able to consider your comment. Electronic files should avoid the use 
of special characters, any form of encryption and be free of any 
defects or viruses. For additional information about the EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., 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. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the EPA Docket Center, EPA 
West Building, 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 
Docket Center is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Nick Parsons, Refining and 
Chemicals Group (E143-01), Sector Policies and Programs Division, 
Office of Air Quality Planning and Standards, Environmental Protection 
Agency, Research Triangle Park, North Carolina 27711; telephone number: 
(919) 541-5372; fax number: (919) 541-0246; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 
    Organization of this Document. The following outline is provided to 
aid in locating information in this preamble.

I. General Information
    A. Does this notice of reconsideration apply to me?
    B. What should I consider as I prepare my comments to the EPA?
    C. How do I obtain a copy of this document and other related 
information?
II. Background Information
III. Actions We Are Taking
IV. Discussion of Issues for Reconsideration
    A. Title V Permitting Requirements
    B. Requirements When Other Rules Overlap With the Final Rule
    C. Requirement To Conduct Direct and Proximal Leak Inspections
    D. Requirement for Covers or Lids on Process Vessels
    E. Requirement To Conduct Leak Inspections When Equipment Is in 
HAP Service
    F. Applicability of the Family of Materials Concept
V. Requirements During Periods of Startup, Shutdown and Malfunctions 
(SSM)
VI. Requirements for Metal HAP Process Vents
    A. Definition of Metal HAP Process Vent
    B. Metal HAP Process Vent Standards
VII. Technical Corrections and Clarifications
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory 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 Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

    A red-line version of the regulatory language that incorporates the 
changes in this action is available in the docket.

I. General Information

A. Does this notice of reconsideration apply to me?

    The regulated categories and entities potentially affected by this 
action include:

[[Page 4524]]



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                                                NAICS
              Industry category               Code \1\               Examples of regulated entities
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Chemical Manufacturing......................       325  Chemical manufacturing area sources that use as
                                                         feedstock, generate as byproduct or produce as product,
                                                         any of the hazardous air pollutants (HAP) subject to
                                                         this subpart except for: (1) Processes classified in
                                                         NAICS Code 325222, 325314 or 325413; (2) processes
                                                         subject to standards for other listed area source
                                                         categories\2\ in NAICS Code 325; (3) certain
                                                         fabricating operations; (4) manufacture of photographic
                                                         film, paper and plate where material is coated or
                                                         contains chemicals (but the manufacture of the
                                                         photographic chemicals is regulated); and (5)
                                                         manufacture of radioactive elements or isotopes, radium
                                                         chloride, radium luminous compounds, strontium and
                                                         uranium.
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\1\ North American Industry Classification System.
\2\ The source categories in NAICS Code 325 for which other area source standards apply are: Acrylic Fibers/
  Modacrylic Fibers Production, Chemical Preparation, Carbon Black, Chemical Manufacturing: Chromium Compounds,
  Polyvinyl Chloride and Copolymers Production, Paint and Allied Coatings and Mercury Cell Chlor-Alkali
  Manufacturing.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
reconsideration action. To determine whether your facility may be 
affected by this reconsideration action, you should examine the 
applicability criteria in 40 CFR 63.11494 of subpart VVVVVV (National 
Emission Standards for Hazardous Air Pollutants for Chemical 
Manufacturing Area Sources). If you have any questions regarding the 
applicability of the final rule 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.

B. What should I consider as I prepare my comments to the EPA?

    Submitting CBI. Do not submit information that you consider to be 
CBI electronically through http://www.regulations.gov or email. Send or 
deliver information identified as CBI to only the following address: 
Mr. Nick Parsons, c/o OAQPS Document Control Officer (Room C404-02), 
U.S. Environmental Protection Agency, Research Triangle Park, North 
Carolina 27711, Attn: Docket ID No. EPA-HQ-OAR-2008-0334.
    Clearly mark the part or all of the information that you claim to 
be CBI. For CBI information in a disk or CD-ROM that you mail to the 
EPA, mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. If you submit a disk or CD-ROM that 
does not contain CBI, mark the outside of the disk or CD-ROM clearly 
that it does not contain CBI. Information marked as CBI will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    If you have any questions about CBI or the procedures for claiming 
CBI, please consult the person identified in the FOR FURTHER 
INFORMATION CONTACT section.

C. How do I obtain a copy of this document and other related 
information?

    Docket. The docket number for this action and the final rule (40 
CFR part 63, subpart VVVVVV) is Docket ID No. EPA-HQ-OAR-2008-0334.
    World Wide Web (WWW). In addition to being available in the docket, 
an electronic copy of this action is available on the WWW through the 
Technology Transfer Network (TTN) Web site. Following signature, a copy 
of this notice will be posted on the TTN's policy and guidance page for 
newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. 
The TTN provides information and technology exchange in various areas 
of air pollution control.

II. Background Information

    Section 112(d) of the Clean Air Act (CAA) requires the 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 is any stationary 
source that 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.
    On October 29, 2009 (74 FR 56008), the EPA issued the NESHAP for 
the nine chemical manufacturing area source (CMAS) categories that were 
listed pursuant to CAA sections 112(c)(3) and 112(k)(3)(B). The nine 
area source categories are Agricultural Chemicals and Pesticides 
Manufacturing, Cyclic Crude and Intermediate Production, Industrial 
Inorganic Chemical Manufacturing, Industrial Organic Chemical 
Manufacturing, Inorganic Pigments Manufacturing, Miscellaneous Organic 
Chemical Manufacturing, Plastic Materials and Resins Manufacturing, 
Pharmaceutical Production and Synthetic Rubber Manufacturing.
    CAA section 112(k)(3)(B) directs the EPA to identify at least 30 
HAP that, as a result of emissions from area sources, pose the greatest 
threat to public health in the largest number of urban areas. The EPA 
implemented this provision in 1999 in the Integrated Urban Air Toxics 
Strategy, (64 FR 38715, July 19, 1999) (Strategy). Specifically, in the 
Strategy, the 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.'' Section 112(c)(3) of the CAA requires the 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. The EPA completed this requirement in 
2011 (76 FR 15308, March 21, 2011). The chemical manufacturing area 
source categories were listed to satisfy this requirement for 15 of the 
30 urban HAP.\1\ Pursuant to CAA section 112(d)(5), the NESHAP reflect 
generally available control technologies or management practices 
(GACT). The NESHAP apply to each chemical manufacturing process unit 
(CMPU) that uses, generates or produces any of the 15 urban HAP for 
which the area source categories were listed (collectively ``chemical 
manufacturing urban HAP'' or ``Table 1 HAP'').
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    \1\ The 15 urban HAP for which the chemical manufacturing area 
source categories were listed are identified in table 1 of the final 
rule.
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    On February 12, 2010, following promulgation of the final rule, the 
EPA received a petition for reconsideration from the American Chemistry 
Council (ACC) and the Society of Chemical Manufacturers & Affiliates 
(SOCMA) (``Petitioners''). A copy of this petition is provided in the 
docket (see Docket ID No. EPA-HQ-OAR-2008-0334). Petitioners, pursuant 
to CAA section 307(d)(7)(B), requested that the EPA

[[Page 4525]]

reconsider six provisions in the rules: (1) The requirement that major 
sources that installed air pollution controls after 1990, and, as a 
result, became area sources, obtain a title V permit; (2) the 
requirement that sources subject to the final rule and any overlapping 
provision in another rule comply with each provision independently, or 
with the most stringent requirements of each rule; (3) the requirement 
that leak inspections include direct and proximal (thorough) inspection 
of all areas of potential leak within the CMPU; (4) the requirement 
that process vessels in HAP service be equipped with a cover or lid 
that must be in place at all times when the vessel contains HAP, except 
for material addition and sampling; (5) the requirement to conduct leak 
inspections while the equipment is in HAP service; and (6) the 
requirement that a CMPU include all equipment and processes used to 
produce a ``family of materials.'' The arguments in support of these 
requests are provided in the petition and described briefly below. 
Petitioners also requested that the EPA stay the effectiveness of these 
provisions of the rule to save many facilities from needlessly having 
to file the initial notifications required by the final rule.
    On June 15, 2010, the EPA sent a letter to Petitioners informing 
them that the EPA was granting the request for reconsideration on at 
least one issue raised in the petition, and that the agency would 
identify the specific issue or issues for which it was granting 
reconsideration in the reconsideration notice that would be published 
in the Federal Register. The letter also indicated that the EPA 
considered the request for a stay to be moot because the due date for 
initial notifications had already passed.

III. Actions We Are Taking

    In this notice, we are granting reconsideration of, and requesting 
comment on, the six issues raised by Petitioners in their petition for 
reconsideration. Section IV of this preamble summarizes these issues 
and discusses our proposed responses to each issue.
    We are also proposing additional provisions related to malfunctions 
and requesting comment on the provisions in the final rule that address 
periods of startup and shutdown. We are also proposing amendments to, 
and taking comment on, the standards applicable to metal HAP process 
vents. Finally, we are proposing technical corrections to certain 
applicability and compliance provisions in the final rule.
    We are seeking public comment only on the issues specifically 
identified in this notice. We will not respond to any comments 
addressing other aspects of the final rule or any other related 
rulemakings.

IV. Discussion of Issues for Reconsideration

    This section of the preamble contains the EPA's basis for our 
proposed responses to the issues identified in the petition for 
reconsideration. We solicit comment on all proposed responses and 
revisions discussed in the following sections.

A. Title V Permitting Requirements

    The EPA proposed to exempt all chemical manufacturing area sources 
from the requirement to obtain a title V permit. In the final rule, in 
response to comments and after a full review of the record, the EPA 
stated that it was not finalizing the exemption for major sources that 
became synthetic area sources by installing air pollution controls 
after 1990. Among other things, the agency explained that we made the 
change, in part, because we failed to consider the large number of such 
sources in proposing the exemption, and because these sources had 
uncontrolled emissions that made them much more like major sources. See 
74 FR 56013, October 29, 2009. Petitioners maintain that the proposed 
exemption of CMAS facilities from title V permitting requirements was 
fully and correctly justified in the preamble to the proposed CMAS 
rule. The Petitioners also claim:
     The EPA's assertion in the final rule that facilities that 
installed control equipment to become synthetic area sources are 
``generally larger and more sophisticated'' than other chemical 
manufacturing area sources contradicts our earlier finding in the 
proposed rule that many of the facilities that would be affected by the 
CMAS rule are small entities without the resources to comply with 
permitting requirements. The Petitioners also state that approximately 
87 percent of SOCMA members and 45 percent of ACC members are small 
businesses, which they cite as support for the proposed finding.
     The final rule fails to recognize that, in order for a 
facility to be treated as a synthetic area source due to the 
installation of controls, the facility has a legal duty to use the 
equipment because the control requirement must be federally 
enforceable. Further, the Petitioners state that, ``In order to have 
been approved by the EPA, a state operating permit program that imposes 
a federally enforceable requirement to use control equipment must 
provide the public with notice and an opportunity to comment on draft 
permits * * * and must also provide for emissions reporting and public 
availability of reported information.''
     The final rule is contrary to the decision in Alabama 
Power Co. v. EPA, which held that a source's potential to emit is 
determined by its design capacity and the anticipated functioning of 
the air pollution control equipment. Thus, the petitioners claim that 
whether a facility is a natural area source or a synthetic area source 
(due to either operational limits or the use of control devices) should 
not matter for regulatory purposes.
     The EPA argued in the area source rules for asphalt 
processing/asphalt roofing manufacturing, and paint and allied products 
manufacturing, that state-delegated programs are sufficient to assure 
compliance, and that it is not more difficult for citizens to enforce 
the NESHAP absent a title V permit. According to the Petitioners, these 
statements are equally, if not more, true for chemical manufacturing 
synthetic area sources.
     Title V requirements will impose substantial transactional 
and compliance costs on subject facilities, and limit their flexibility 
to respond to market opportunities.
    In conclusion, Petitioners suggest that we should exempt all 
chemical manufacturing area sources from the requirement to obtain a 
title V permit consistent with the proposed rule. We reviewed our 
rationale, as stated in the preamble to the final rule (74 FR 56013-
56014) and summarized below, for the final title V permitting 
requirement for facilities that became synthetic area sources by virtue 
of installing air pollution control devices after 1990. We continue to 
believe that requiring title V for synthetic area sources that 
installed controls to become area sources is appropriate; therefore, we 
are not proposing to exempt such sources from the requirement to obtain 
a title V permit. We are, however, making changes to the applicability 
of the provision at issue. Instead of requiring a title V permit for 
all synthetic area sources that installed air pollution controls in 
order to become an area source, regardless of whether the controls were 
installed on an affected CMPU, we are now proposing to only require a 
title V permit for a synthetic area source if air pollution controls 
were installed on at least one CMPU subject to the final rule in order 
to become an area source. Such a limitation would be consistent with 
the standards in the final rule that are applicable only to the CMPU 
that emit one of the chemical manufacturing urban HAP. We are also

[[Page 4526]]

proposing to add provisions that inform sources when they must submit a 
title V permit application consistent with the title V regulations at 
40 CFR part 70 and 40 CFR part 71.
    Pursuant to section 502(a) of the CAA, the Administrator may 
``exempt one or more [area] source categories (in whole or in part) 
from the requirements of [title V] if the Administrator finds that 
compliance with such requirements is impracticable, infeasible, or 
unnecessarily burdensome * * * .'' In December 2005, in a national 
rulemaking, the 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). The 
EPA evaluated the chemical manufacturing area source categories 
pursuant to the four-factor balancing test in the proposed rule, and 
determined that title V permitting was unnecessarily burdensome. 73 FR 
58371-58373. However, as stated above, the EPA did not finalize the 
exemption for synthetic area sources that became area sources by 
installing air pollution controls after November 15, 1990, in part, 
because the agency failed to consider the large number of such sources 
in proposing the exemption. 74 FR 56013. We explained the reasons for 
our oversight, and then concluded that title V was not unnecessarily 
burdensome and provided a reasoned basis for that conclusion, as 
discussed below. 74 FR 56013-56014.
    In the preamble to the final rule, we noted that the chemical 
manufacturing area source categories are different from other area 
source categories we have exempted because the categories include a 
large number of synthetic area sources (major sources that installed 
air pollution controls to become area sources) and the sources in the 
other categories generally have very low emissions of HAP before 
control. We then stated that at least 10 percent of the estimated 75 
facilities that are synthetic area sources for HAP by virtue of 
installing controls have uncontrolled HAP emissions over 100 tpy. We 
also indicated that our information showed that many of the sources are 
located in cities, and often in close proximity to residential and 
commercial centers where large numbers of people live and work. We 
further stated that these synthetic area sources have significantly 
higher emissions potential when uncontrolled than the other sources in 
the chemical manufacturing area source categories, and that they are 
much more like the major sources of HAP subject to the Hazardous 
Organic Chemical Manufacturing NESHAP (HON) and the Miscellaneous 
Organic Chemical Manufacturing NESHAP (MON). For these reasons, and 
other reasons set forth in the preamble to the final rule, we 
determined that ``requiring additional public involvement and 
compliance assurance requirements through title V is important to 
ensure that these sources are maintaining their emissions at the area 
source level, and, while there is some burden on the affected 
facilities, we think that the burden is not significant because these 
facilities are generally larger and more sophisticated than the natural 
area sources and sources that took operational limits to become area 
sources.'' 74 FR 56014.
    Contrary to the Petitioners' first assertion, we do not believe 
that there is a conflict between our finding that many CMAS facilities 
are small entities that lack the technical and financial resources to 
comply with title V, and our finding that CMAS facilities that are 
synthetic area sources due to the use of control devices are generally 
larger and more sophisticated than other facilities covered by the 
final rule. The fact that nearly all SOCMA members are small businesses 
does not, by itself, counter these findings. As we stated in the 
preamble to the final rule, an estimated 450 CMAS facilities have 
processes that would be subject to the rule. Of those, we estimated 
that 75 are synthetic area sources by virtue of add-on controls, and 
only 47 of these facilities were estimated to need a new title V permit 
because the remainder of the sources are already subject to title V for 
other reasons. Of the 47 sources that would require a new title V 
permit under the requirement in the final rule, we estimated that at 
least two-thirds of these facilities are large entities. Since we do 
not know whether the add-on controls at these 75 facilities are 
installed on a CMPU subject to the final rule, we cannot estimate the 
total number of facilities that would be required to obtain a new title 
V permit under this proposed revision to the title V permit 
requirement. However, we believe that it would be less than the 47 
facilities that would have required a new title V permit under the 
final rule requirement. Based on information from SOCMA, approximately 
270 member companies are small businesses. However, it is not clear how 
many of these companies have facilities that are subject to the CMAS 
rule, how many of the subject facilities are synthetic area sources for 
HAP emissions due to the use of control devices or how many of the 
synthetic area sources for HAP emissions are subject to title V 
permitting requirements for other reasons. The information provided by 
Petitioner ACC is similarly vague on this issue.
    The Petitioners also argue that the title V requirement is not 
appropriate because: (1) State operating permits that impose a 
federally enforceable requirement must provide the public with notice 
and the opportunity to comment on the draft permit; (2) synthetic area 
source limits must be federally enforceable pursuant to the definition 
of ``potential to emit'' at 40 CFR 63.2, and that it should not matter 
whether an area source is synthetic or natural; (3) the EPA has 
determined in other area source rules that state-delegated programs and 
Federal enforceability of the standards is sufficient, and that 
determination is equally applicable to the area sources subject to 
title V in this rule; and (4) the requirement to obtain a title V 
permit will impose substantial compliance costs and reduce flexibility 
at the subject facilities. We are not proposing changes to the title V 
permitting requirement based on these arguments because we do not 
believe that they support a change in our position. First, while it is 
true that the EPA regulations require Federal enforceability of 
limitations on potential to emit HAP, Petitioners did not provide any 
information as to the level of public participation required to obtain 
such limits and whether the level of participation was as comprehensive 
as that required pursuant to title V. Even if Petitioners could 
demonstrate that the level of public participation was comparable to 
that required under title V, our determination would not be altered on 
that issue alone because title V has other important requirements that 
may not apply to synthetic area sources that are not subject to title V 
(e.g., the requirement to annually certify compliance with all 
applicable requirements). Second, the EPA disagrees that natural and 
synthetic area sources must be treated the same. As stated in the 
preamble to the final rule, ``[synthetic area source] facilities are 
generally larger and more sophisticated than the natural area sources 
and sources that took operational limits to become area sources'' (74 
FR 56014). Third, we explained in the preamble to the final rule that 
the chemical manufacturing area sources are not similar to other area 
source categories that we have exempted because of the

[[Page 4527]]

large number of synthetic area sources that installed add-on controls 
and the high volume of pre-control device HAP emissions from the 
chemical manufacturing area sources that added controls as compared 
with other area sources. As these synthetic area sources have 
essentially the same pre-control device HAP emissions potential as a 
major source chemical manufacturing facility, we believe that the title 
V permit requirement will help ensure that these control devices remain 
in place and that these sources maintain their area source status. 
Since it is possible that the non-operation, failure or 
underperformance of a single control device could result in a source 
within this category exceeding the major source emission threshold (10 
tpy or more of any single HAP or 25 tpy or more of any combination of 
HAP), we believe that the additional scrutiny that permitting 
authorities place on sources with title V permits is warranted. 
Finally, Petitioners have provided no information that demonstrates 
that the cost of compliance for affected facilities will, in fact, 
significantly burden the sources subject to the title V requirement, or 
that such requirement will limit operational flexibility. We request 
comments and information that address these issues, including 
information and requirements that are required by state operating 
permit programs, so that we can more thoroughly evaluate applicability 
of title V for the identified sources.
    As stated above, we are proposing changes to the applicability of 
the title V permit requirement to synthetic area sources that installed 
controls. The proposed changes more clearly identify the sources 
subject to title V as those that route (or have routed) emissions from 
at least one process unit subject to the final rule to a control 
device(s) that is required to maintain synthetic area source status at 
the facility, which will likely reduce the number of sources required 
to obtain a title V permit, if promulgated. Specifically, because the 
standards apply only to CMPU that meet the specific applicability 
criteria in the rule, we request comment on whether the title V 
permitting requirement should be applicable only if one or more of the 
CMPU that are subject to the final standards are controlled by the air 
pollution control equipment necessary for the facility to maintain area 
source status. We are also proposing to include language that informs 
sources subject to title V requirements when they must submit a title V 
permit application. The EPA is including these new provisions because, 
on March 14, 2011, the agency issued a final rule staying the 
requirement to obtain a title V permit until the final reconsideration 
rule is published in the Federal Register. 76 FR 13514. Because the 
stay will be lifted once the final rule is published in the Federal 
Register, we determined it was necessary to include an application 
deadline for those existing sources currently subject to the final rule 
to avoid confusion as to when title V permit applications would be due. 
The proposed application deadline for existing sources provides the 
full 12 months otherwise available to sources newly subject to title V 
pursuant to the EPA regulations at 40 CFR part 70 and 40 CFR part 71. 
See 40 CFR 70.5(a)(1) and 40 CFR 71.5(a)(1). We also propose to include 
a provision indicating the time available for new sources and existing 
sources that become subject to the rule after the effective date to 
submit a title V permit application.\2\ We solicit comment on these 
proposed changes to the final rule.
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    \2\ Existing sources may become subject to the NESHAP for CMAS 
after the effective date of the standards because the final rule 
bases applicability on the use of chemical manufacturing urban HAP 
(Table 1 HAP) in a CMPU. 40 CFR 63.11494. If a source begins using a 
Table 1 HAP after the effective date, the facility will be subject 
to the CMAS standards, and, if the source is a synthetic area source 
that installed controls, the source will be subject to title V.
---------------------------------------------------------------------------

    Additionally, we are soliciting comment on the promulgated final 
rule requirement that required a facility to obtain a title V permit if 
emissions from any process unit are (or have been) routed to the 
control device(s) that is required to maintain synthetic area source 
status at the facility.
    We are requesting comment with supporting rationale on the 
requirement, as specified in this proposed rule and the promulgated 
final rule requirement outlined above. We are also interested in 
information that would allow us to better estimate the burden under the 
requirement in this proposed rule and the alternative. For example, we 
are interested in results of any surveys that document: (1) The 
percentage and/or number of CMAS facilities that are synthetic area 
sources for HAP emissions because they use federally-enforceable 
control devices; (2) the percentage and/or number of such facilities 
that are using the control devices to control emissions from at least 
one CMAS CMPU; (3) the financial burden of obtaining a title V permit 
compared to sales; and (4) the percentage and/or number of such 
facilities that are not already subject to title V requirements for 
other reasons. We are not taking comment on our decision in the final 
rule to exempt from title V chemical manufacturing areas sources that 
are natural area sources or that took operational limits to become area 
sources.

B. Requirements When Other Rules Overlap With the Final Rule

    Petitioners note that their comments on the proposed rule urged the 
EPA to include provisions in the final rule that would minimize the 
burden associated with overlapping provisions between the CMAS rule and 
other rules. Specifically, they recommended that the CMAS rule include 
provisions to allow a facility subject to the CMAS rule and any other 
applicable area or major source rule to opt to comply with either, and 
noted that such an approach has been taken in many other rules. In 
response to those comments, we added provisions to address overlapping 
requirements in the final rule. See 40 CFR 63.11500. However, 
Petitioners consider the overlapping rule requirements in the final 
rule, which specify that a facility may elect to comply with the most 
stringent provisions of the applicable rules as an alternative to 
complying fully with each rule independently, to be ``unprecedented, 
burdensome, and highly problematic.'' According to the Petitioners, 
concerns with the alternative are that: (1) There can be uncertainty 
regarding which provision is more stringent; (2) facilities will be at 
risk that the EPA or a delegated authority will subsequently disagree 
with the source's determination; and (3) the effort necessary to 
construct a matrix of applicable requirements and determine which are 
the most stringent will exceed available staff and financial resources 
of many area sources. In addition, Petitioners state that complying in 
every respect with two overlapping rules is bound to involve 
substantial duplication, and, in some cases, may not be possible due to 
conflicts between the two rules. For these reasons, Petitioners 
recommend that we either propose to eliminate the final language or 
request comment on it.
    We disagree with the Petitioners' assertion that the requirements 
in the final rule are unprecedented and procedurally invalid. In the 
absence of the language in the final rule, a facility would be required 
to comply with all applicable requirements in both the CMAS rule and 
all other applicable rules, regardless of whether some equipment is 
subject to more than one rule. The final CMAS rule merely made explicit 
the implicit requirement to comply with all applicable standards. It 
was in response to Petitioners' comments that the agency provided an

[[Page 4528]]

overlapping requirements alternative that allows a facility to identify 
and comply with only one set of requirements (i.e., the most stringent 
requirements in the overlapping rules). The alternative was intended as 
a means of reducing the compliance burden without diminishing the level 
of environmental protection provided by each rule.
    We did not include language that defines the more stringent 
requirements, as found in other rules, due to the great variety in 
characteristics of CMAS processes and the wide variety of compliance 
options in both the CMAS rule and overlapping rules. This variety makes 
it difficult to develop language that would not inadvertently allow a 
CMAS facility to comply with requirements less stringent than those 
contained in 40 CFR part 63, subpart VVVVVV, or less stringent than the 
required control level in an overlapping rule. Furthermore, as noted in 
the economic and control cost impacts analyses (see Docket ID No. EPA-
HQ-OAR-2008-0334-0079), we expect that most CMAS facilities will be 
subject to only the management practices in subpart VVVVVV. For those 
sources, we anticipate that it generally will not be difficult or 
burdensome to determine which requirements in subpart VVVVVV and an 
overlapping rule are the most stringent. For those sources that are 
unable to determine the more stringent requirement between subpart 
VVVVVV and an overlapping requirement, we believe it would be more 
appropriate to address those situations on a case-by-case basis.
    We are granting reconsideration of the overlapping provisions 
requirement in 40 CFR 63.11500 of the final rule to allow comment on 
both the language in the final rule and any alternative suggestions. 
Specifically, we are interested in language that would reduce the 
compliance burden for the CMAS rule and any overlapping rules combined, 
yet assure that all requirements in the CMAS rule are met. We are also 
interested in specific examples of requirements in overlapping rules 
that conflict with requirements in the CMAS final rule.

C. Requirement To Conduct Direct and Proximal Leak Inspections

    In the final rule, the EPA revised the provision for inspections to 
require that facilities conduct a ``direct and proximal (thorough) 
inspection of all areas of potential leak within the CMPU.'' 
Petitioners object to the requirement in the final rule to conduct 
``direct and proximal (thorough)'' inspections because they believe it 
requires inspections without regard to safety or difficulty of access. 
Petitioners also note that areas that are difficult to inspect or 
unsafe to inspect or monitor are exempted from regular inspection 
requirements in other rules, and they point out that, in their comments 
on the proposed CMAS rule, they requested clarification that sensory 
inspections may be done from a distance when equipment is either 
inaccessible or unsafe for close visual inspection. Therefore, 
Petitioners maintain that the agency should either propose to eliminate 
the direct and proximal inspection requirement or request comment on 
it.
    We have determined that the inspections required in the final rule 
require control that is more stringent than GACT because we are not 
aware of any facility conducting direct and proximal inspections of all 
process vessels and equipment. For this reason, and to address 
Petitioners' concerns, we are proposing to delete the requirement for 
direct and proximal inspections. However, we want to assure that 
sensory inspections be performed at distances such that the results are 
meaningful.
    As a result, we are proposing that the amended rule would specify 
that a facility must conduct quarterly sensory inspections of all 
equipment and process vessels, provided these methods are capable of 
detecting leaks within the CMPU (i.e., the inspector is within 
sufficient proximity to the equipment that leaking equipment can be 
detected by sight, sound or smell). We are not, however, proposing to 
exempt equipment that is difficult or unsafe to monitor. Rules that 
provide such exemptions do so because they require instrument 
monitoring that relies on being able to locate the instrument probe 
very close to the equipment being inspected (e.g., see 40 CFR part 63, 
subparts TT and UU). Sensory monitoring does not require intimate 
contact with each piece of equipment to be effective at identifying 
leaks. In addition, due to the wide variety of design and operating 
conditions throughout the source category, we also are not proposing 
criteria regarding an acceptable distance for inspection or the types 
of conditions under which the inspection may be conducted from a 
distance. Our intent is that each facility should conduct inspections 
as close as practical to the equipment to be able to detect leaks while 
also following procedures contained in site-specific safety plans. The 
proposed requirements would be consistent with sensory inspection 
requirements in 40 CFR part 63, subpart R. We request comment on both 
the direct and proximal language in the final rule and these proposed 
revisions.

D. Requirement for Covers or Lids on Process Vessels

    We proposed to require process vessels in HAP service be closed 
``except when operator access is necessary.'' 73 FR 58377 (proposed 40 
CFR 63.11495(a)). The final rule requires process vessels in HAP 
service to be equipped with a cover or lid that must be in place at all 
times when the vessel contains HAP, ``except for material addition and 
sampling.'' 40 CFR 63.11495(a)(1). Petitioners contend that compliance 
with this management practice requirement is impossible due to safety 
issues and because it does not consider the need to take material out 
of a vessel or to conduct maintenance. Petitioners are particularly 
concerned that the requirement does not appear to allow openings for 
any type of maintenance, even after the process is shut down, and only 
trace levels of HAP are present. In subsequent correspondence, 
Petitioners suggest that their concerns would be resolved if we modify 
the rule so that the cover or lid requirement applies only when a 
process vessel is ``in use'' (which is a concept that they state can be 
easily applied), and clarify that ``in use'' does not include routine 
cleaning operations. See Docket ID No. EPA-HQ-OAR-2008-0334. 
Petitioners explain that the exclusion for cleaning is needed because 
the definition of a ``chemical manufacturing process'' includes routine 
cleaning operations, but vessels must be opened for cleaning. 
Therefore, the Petitioners state that we should either propose changes 
that would require the use of covers or lids only when subject process 
vessels are in use, or seek comments on the requirement as written in 
the final rule.
    We are granting reconsideration of the requirement to use a cover 
or lid on process vessels because the Petitioners comments indicate 
that the requirement can be interpreted as requiring control more 
stringent than we intended. The proposed rule specified that ``all 
process equipment in which organic HAP is used to process material must 
be covered when in use, and closure mechanisms on other openings and 
access points in process equipment must be in the closed position 
during operation, except when operator access is necessary.'' 73 FR 
58377 (proposed 40 CFR 63.11495(a)). The intent of the requirement for 
covers in the proposed rule was to ensure that processes do not operate 
with open-top vessels. The purpose of the cover is to minimize

[[Page 4529]]

emissions from surface evaporation, but not necessarily to have a tight 
seal between the cover and the vessel. For the final rule, we tried to 
clarify what ``in use'' and ``operator access'' meant by specifying 
that the cover (or lid) ``must be in place at all times when the vessel 
contains HAP, except for material addition and sampling.'' However, as 
the Petitioners have pointed out, the revised language can be 
interpreted as prohibiting removal of the cover, even when only traces 
of HAP remain in the vessel after it has been drained, which would 
prohibit opening to perform maintenance or manual cleaning. Requiring 
use of the cover in this way is not GACT, and it was not our intent.
    To address the Petitioners' issues, we are proposing to revise 40 
CFR 63.11495(a)(1) in the final rule to read as follows: ``Each process 
vessel must be equipped with a cover or lid that must be closed 
whenever the vessel is in organic HAP service or metal HAP service, 
except for manual operations that require access, such as material 
addition and removal, inspection, sampling, and cleaning.'' We note 
that allowing opening of a process vessel for material removal 
clarifies that process vessels, such as filter presses, may be opened 
in order to remove the filter cake.
    The proposed change also would exempt manual cleaning operations 
from the requirement to maintain closed covers and lids while a process 
vessel is in organic HAP or metal HAP service. As the Petitioners 
noted, the definition of ``chemical manufacturing process'' is drawn 
from the definition of a ``miscellaneous organic chemical manufacturing 
process'' in 40 CFR 63.2550 of the MON. That definition includes 
``routine cleaning operations,'' which are described in the preamble to 
the final MON as ``cleaning conducted within enclosed equipment between 
batches or between campaigns.'' The MON preamble goes on to state that 
these operations ``often consist of conducting solvent rinses through 
the equipment,'' and emissions are characterized as part of the 
emissions from a batch process vent. See 68 FR 63860, November 10, 
2003. Contrary to Petitioner's assertion, this type of cleaning was 
included as part of the process specifically because we considered the 
vessels to be ``in use'' while it is conducted. We also consider 
vessels to be in use when manual cleaning is performed. To clarify this 
point, we are proposing to revise the definition of ``chemical 
manufacturing process'' to specify that all cleaning activities are 
part of the process. However, because GACT does not include the use of 
closed covers and lids when performing manual cleaning, we are 
proposing two additional changes. First, we are proposing the change 
noted above to exempt manual cleaning operations from the requirement 
to maintain covers and lids in the closed position when the vessel is 
in organic HAP service or metal HAP service. Second, we are proposing 
to revise the definition of ``in organic HAP service'' to specify that 
a process vessel is no longer in organic HAP service after the vessel 
has been emptied to the extent practicable (i.e., a vessel with liquid 
left on process vessel walls or as bottom clingage, but not in pools, 
due to floor irregularity, is considered completely empty), and any 
cleaning has been completed. We expect emissions to be minimal during 
manual cleaning operations and when a process vessel is no longer in 
organic HAP service. We are not proposing any changes to 40 CFR 
63.11494(a)(1) regarding maintenance activities because those 
activities would be conducted after the vessel has been drained (and 
possibly cleaned) and the vessel would no longer be in organic HAP 
service.
    We request comments on both the provisions, as specified in the 
final rule and the proposed changes. Specifically, we request comment 
on whether the proposed changes effectively address the issues raised 
by Petitioners, and clarify the requirements without introducing 
unintended consequences. We also request comment on whether a change 
like that proposed for the definition of ``in organic HAP service'' is 
needed for the definition of ``in metal HAP service.'' In particular, 
we request comment on whether a change is needed to address when 
vessels that contain metal HAP in the form of particulate are in use, 
and, if so, we request information on the types of vessels for which 
the change is needed and recommendations on how the language in the 
definition could be structured. We are also requesting comment on 
possible changes to the requirements for cleaning that would include 
requirements for manual cleaning as well as for automated rinses 
through closed equipment.

E. Requirement To Conduct Leak Inspections When Equipment Is in HAP 
Service

    Petitioners state that ``the final rule can be read to imply that 
the equipment must be in HAP service when the inspection is 
conducted.'' Petitioners note that this is in contrast to the proposed 
rule, which would have required quarterly inspections without 
specifying any other conditions. Petitioners stated that they did not 
comment on the proposed language because they considered it to be 
reasonable; however, Petitioners contend that the apparent requirement 
in the final rule is problematic because batch processors who operate 
equipment in HAP service for short periods of time and have limited 
operating personnel may find it difficult to accomplish the required 
inspections during these narrow windows of time. Petitioners ask for 
clarification about whether this interpretation is correct, and, if it 
is, Petitioners state that we should either propose reverting to the 
proposed language, or propose language allowing quarterly leak 
detection and repair inspections when the equipment is in volatile 
organic compound (VOC) service, not just HAP service.
    Based on our review of this issue, we are proposing some editorial 
changes to 40 CFR 63.11495(a)(3) of the final rule to make the rule 
easier to read and understand. These changes are described in Section 
VII of this preamble. However, we decided not to propose changes as 
suggested by the Petitioners because we have several concerns regarding 
how inspections can be conducted effectively when the process is not 
operating in HAP service. We request comment on both the specific 
concerns described below, as well as all other aspects of the 
requirements in the final rule related to the timing of inspections. 
First, because the configuration of process vessels and equipment 
likely changes from one CMPU to the next, we request comment on how 
sources would track which vessels and equipment to inspect in VOC 
service if we adopted Petitioners' approach and whether this effort 
would negate any advantages of having flexibility to inspect at times 
other than when the subject CMPU is operating in organic HAP service. 
Second, process vessels are generally opened and cleaned when 
reconfiguring to create a different CMPU, and equipment connections are 
also often opened. Therefore, we also request comment discussing how 
inspections in VOC service for a different configuration would provide 
information that is relevant to determining whether there are leaks 
from the subject CMPU. Finally, if someone elects to conduct Method 21 
monitoring rather than sensory inspections, the instrument reading 
obtained would be related to the concentration of organic compound in 
the fluid and the response factor of the instrument for that organic 
compound. Thus, we request comment on the need to specify criteria for 
the type of fluid

[[Page 4530]]

that may be used when conducting inspections of vessels and equipment 
in VOC service (e.g., that the VOC concentration must be no less than 
the total organic compound concentration in the subject CMPU when in 
organic HAP service). We will consider adopting the Petitioners' 
approach after reconsideration if we can adequately address these 
issues.

F. Applicability of the Family of Materials Concept

    After proposal, the rule was revised in response to comments from 
Petitioners and others that argued applicability should be established 
on a CMPU basis instead of facility-wide basis. Petitioners 
specifically suggested that the EPA adopt the CMPU construct. We 
defined the CMPU in the final rule to include ``all process vessels, 
equipment, and activities necessary to operate a chemical manufacturing 
process that produces a material or family of materials * * *. A CMPU 
consists of one or more unit operations and any associated recovery 
device.'' 40 CFR 63.11494(b). In adopting the CMPU construct, we 
determined that, to adequately characterize the CMPU, the applicability 
of the rule should extend to the ``family of materials'' because the 
CMPU concept is derived from the MON, and production of a family of 
materials is part of a single process unit in the MON. Furthermore, as 
in the MON, the CMAS rule specifies mass emission thresholds above 
which more stringent control of batch process vents is required. 
Petitioners state that it can be difficult under the CMAS rule to 
determine what constitutes a family of materials. Petitioners believe 
that the term ``family of materials'' effectively expands the scope of 
a CMPU to include equipment that is not part of a process that uses or 
produces Table 1 HAP. Petitioners contend that there is no policy 
justification for applying the CMAS rule this broadly. Therefore, 
Petitioners request that the EPA interpret the ``family of materials'' 
term in such a way as to avoid regulating equipment that is not used to 
process a Table 1 HAP. Alternatively, Petitioners suggest that the EPA 
propose eliminating the phrase ``or a family of materials'' from the 
rule.
    The definition of ``family of materials'' in the MON, and 
referenced in 40 CFR 63.11502 of the CMAS final rule, is as follows:

    Family of materials means a grouping of materials with the same 
basic composition or the same basic end use or functionality 
produced using the same basic feedstocks with essentially identical 
HAP emission profiles (primary constituent and relative magnitude on 
a pound per pound basis) and manufacturing equipment configuration. 
Examples of families of materials include multiple grades of the 
same product or different variations of a product (e.g., blue, black 
and red resins).
    As in the MON, the intent of the family of materials concept in 40 
CFR part 63, subpart VVVVVV is to ensure that sources will not be able 
to improperly avoid installation of add-on controls for batch process 
vent emissions by creating separate CMPU for production of essentially 
the same products (i.e., products produced from the same basic raw 
materials, with essentially identical HAP emissions, and using the same 
configuration of manufacturing equipment). For example, a series of 
polymer products that differ only in molecular weight or the type of 
non-HAP additive are considered a family of materials when the same 
primary raw materials are used, the same types of HAP are emitted and 
the same configuration of production equipment is used. However, 
because the definition of family of materials in the final rule uses 
the term ``essentially'' identical HAP emission profiles, a family of 
materials potentially could include some products whose production does 
not involve Table 1 HAP. Therefore, to clarify the requirements, we are 
proposing to revise the definition of family of materials to state that 
only those products whose production involves emission of the same 
Table 1 HAP are to be considered part of a family of materials.
    We also want to clarify the family of materials concept as it 
relates to production of isolated intermediates. A chemical 
manufacturing process is defined, in part, as ``all equipment which 
collectively functions to produce a product or isolated intermediate.'' 
An isolated intermediate is defined, in part, as ``a product of a 
process that is stored before subsequent processing.'' (As discussed in 
section VII of this preamble, we are proposing to add a definition of 
``isolated intermediate'' that is consistent with the definition in the 
MON.) Even if an isolated intermediate and final product are produced 
using the same manufacturing equipment configuration and have the same 
Table 1 HAP emissions, they generally cannot be part of a family of 
materials because the definition specifies production of all products 
in the family must involve the same basic feedstocks. This condition 
would not be met if an isolated intermediate is used as a feedstock in 
later production of a final product. Furthermore, the definition of 
family of materials specified that all products in the family must have 
the same basic composition, end use, or functionality. This condition 
also would not be met in a situation where the isolated intermediate is 
transformed in the process to produce the final product.
    We are requesting comment on all aspects of the family of materials 
concept, including the proposed change. We are particularly interested 
in descriptions of situations where someone thinks it would apply, but 
should not, and we request suggestions for additional changes that 
would make it easier to understand, apply and enforce. We are not, 
however, accepting comments on the use of the CMPU as the basis for 
determining applicability of the CMAS final rule.

V. Requirements During Periods of Startup, Shutdown and Malfunction 
(SSM)

    During the comment period of the proposed rule, the United States 
Court of Appeals for the District of Columbia Circuit vacated two 
provisions in the EPA's CAA section 112 regulations governing the 
emissions of HAP during periods of startup, shutdown and malfunction 
(SSM). Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), cert. 
denied, 130 S. Ct. 1735 (U.S. 2010). Specifically, the Court vacated 
the SSM exemption contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), 
that are part of a regulation, commonly referred to as the ``General 
Provisions Rule,'' that the EPA promulgated under section 112 of the 
CAA. When incorporated into CAA section 112(d) regulations for specific 
source categories, the exemption in these two provisions exempts 
sources from the requirement to comply with the otherwise applicable 
CAA section 112(d) emission standard during periods of SSM.
    The proposed CMAS rule contained references to the vacated 
provisions. Because the provisions were vacated, we removed the 
references in the final rule, and, in their place, we included 
alternative standards for startup and shutdown periods for continuous 
process vents. Table 3 to 40 CFR part 63, subpart VVVVVV. For batch 
process vents, we determined that startup and shutdown periods were 
already accounted for in the existing standard, and we determined that 
the remaining equipment did not have periods of startup and shutdown. 
74 FR 56013. We declined to establish a different standard for 
malfunctions, as suggested by commenters. 74 FR 56033.
    Further, as explained in the preamble to the final rule (74 FR 
56033), periods of startup, normal operations and shutdown are all 
predictable and

[[Page 4531]]

routine aspects of a source's operations. However, by contrast, 
malfunction is defined as a ``sudden, infrequent, and not reasonably 
preventable failure of air pollution control and monitoring equipment, 
process equipment or a process to operate in a normal or usual manner * 
* *'' (40 CFR 63.2). Nothing in CAA section 112(d) or in case law 
requires that the EPA anticipate and account for the innumerable types 
of potential malfunction events in setting emission standards. See 
Weyerhaeuser v. Costle, 590 F.2d 1011, 1058 (D.C. Cir. 1978) (``In the 
nature of things, no general limit, individual permit, or even any 
upset provision can anticipate all upset situations. After a certain 
point, the transgression of regulatory limits caused by `uncontrollable 
acts of third parties,' such as strikes, sabotage, operator 
intoxication or insanity, and a variety of other eventualities, must be 
a matter for the administrative exercise of case-by-case enforcement 
discretion, not for specification in advance by regulation.''). 
Further, it is reasonable to interpret CAA section 112(d) as not 
requiring the EPA to account for malfunctions in setting emissions 
standards.
    We believe it would be impracticable to take malfunctions into 
account in setting CAA section 112(d) standards for chemical 
manufacturing area sources. As noted above, by definition, malfunctions 
are sudden and unexpected events, and it would be difficult to set a 
standard that takes into account the myriad different types of 
malfunctions that can occur across all sources in the categories. 
Moreover, malfunctions can vary in frequency, degree and duration, 
further complicating standard setting. See, e.g., Sierra Club v. EPA, 
167 F.3d 658, 662 (D.C. Cir. 1999) (the EPA typically has wide latitude 
in determining the extent of data-gathering necessary to solve a 
problem. We generally defer to an agency's decision to proceed on the 
basis of imperfect scientific information, rather than to ``invest the 
resources to conduct the perfect study.'').
    In the event that a source fails to comply with the applicable CAA 
section 112(d) standards as a result of a malfunction event, the EPA 
would determine an appropriate response based on, among other things, 
the good faith efforts of the source to minimize emissions during 
malfunction periods, including preventative and corrective actions, as 
well as root cause analyses to ascertain and rectify excess emissions. 
The EPA would also consider whether the source's failure to comply with 
the CAA section 112(d) standard was, in fact, ``sudden, infrequent, not 
reasonably preventable'' and was not instead ``caused in part by poor 
maintenance or careless operation.'' 40 CFR 63.2 (definition of 
malfunction).
    Finally, the EPA recognizes that even equipment that is properly 
designed and maintained can sometimes fail, and that such failure can 
sometimes cause an exceedance of the relevant emission standard or 
other violation. (See, e.g., State Implementation Plans: Policy 
Regarding Excessive Emissions During Malfunctions, Startup, and 
Shutdown (Sept. 20, 1999); Policy on Excess Emissions During Startup, 
Shutdown, Maintenance, and Malfunctions (Feb. 15, 1983)). The EPA is, 
therefore, proposing to add to the final rule an affirmative defense to 
civil penalties for exceedances of emission limits or other violations 
of applicable standards that are caused by malfunctions. See 40 CFR 
63.11502 (defining ``affirmative defense'' to mean, in the context of 
an enforcement proceeding, a response or defense put forward by a 
defendant, regarding which the defendant has the burden of proof, and 
the merits of which are independently and objectively evaluated in a 
judicial or administrative proceeding). We also are proposing 
regulatory provisions to specify the elements that are necessary to 
establish this affirmative defense; the source must prove by a 
preponderance of the evidence that it has met all of the elements set 
forth in 40 CFR 63.11501(e). See 40 CFR 22.24. The criteria ensure that 
the affirmative defense is available only where the event that causes 
an exceedance of the emission limit meets the narrow definition of 
malfunction in 40 CFR 63.2 (sudden, infrequent, not reasonable 
preventable and not caused by poor maintenance and or careless 
operation). For example, to successfully assert the affirmative 
defense, the source must prove by a preponderance of the evidence that 
excess emissions ``[w]ere caused by a sudden, infrequent, and 
unavoidable failure of air pollution control and monitoring equipment, 
process equipment, or a process to operate in a normal or usual manner 
* * *.'' The criteria also are designed to ensure that steps are taken 
to correct the malfunction, to minimize emissions in accordance with 
CAA section 63.11501(e), and to prevent future malfunctions. For 
example, the source must prove by a preponderance of the evidence that 
``[r]epairs were made as expeditiously as possible when the applicable 
emission limitations were being exceeded * * *'' and that ``[a]ll 
possible steps were taken to minimize the impact of the excess 
emissions on ambient air quality, the environment and human health * * 
*.'' In any judicial or administrative proceeding, the Administrator 
may challenge the assertion of the affirmative defense, and, if the 
respondent has not met its burden of proving all of the requirements in 
the affirmative defense, appropriate penalties may be assessed in 
accordance with section 113 of the CAA (see also 40 CFR 22.77).
    The EPA included an affirmative defense in the final rule in an 
attempt to balance a tension, inherent in many types of air regulation, 
to ensure adequate compliance while simultaneously recognizing that 
despite the most diligent of efforts, emission limits may be exceeded 
under circumstances beyond the control of the source. The EPA must 
establish emission standards that ``limit the quantity, rate, or 
concentration of emissions of air pollutants on a continuous basis.'' 
42 U.S.C. 7602(k) (defining ``emission limitation and emission 
standard''). See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 1021 (DC 
Cir. 2008). Thus, the EPA is required to ensure that section 112 
emissions limitations are continuous. The affirmative defense for 
malfunction events meets this requirement by ensuring that even where 
there is a malfunction, the emission limitation is still enforceable 
through injunctive relief. While ``continuous'' limitations, on the one 
hand, are required, there is also case law indicating that, in many 
situations, it is appropriate for the EPA to account for the practical 
realities of technology. For example, in Essex Chemical v. Ruckelshaus, 
486 F.2d 427, 433 (DC Cir. 1973), the District of Columbia Circuit 
Court acknowledged that, in setting standards under CAA section 111 
``variant provisions'' such as provisions allowing for upsets during 
startup, shutdown and equipment malfunction ``appear necessary to 
preserve the reasonableness of the standards as a whole and that the 
record does not support the `never to be exceeded' standard currently 
in force.'' See also, Portland Cement Association v. Ruckelshaus, 486 
F.2d 375 (DC Cir. 1973). Though intervening case law such as Sierra 
Club v. EPA and the CAA 1977 amendments undermine the relevance of 
these cases today, they support the EPA's view that a system that 
incorporates some level of flexibility is reasonable. The affirmative 
defense simply provides for a defense to civil penalties for excess 
emissions that are proven to be beyond the control of the source. By 
incorporating an

[[Page 4532]]

affirmative defense, the EPA has formalized its approach to upset 
events. In a Clean Water Act setting, the Ninth Circuit required this 
type of formalized approach when regulating ``upsets beyond the control 
of the permit holder.'' Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 
(9th Cir. 1977). But see, Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 
1057-58 (DC Cir. 1978) (holding that an informal approach is adequate). 
The affirmative defense provisions give the EPA the flexibility to both 
ensure that its emission limitations are ``continuous'' as required by 
42 U.S.C. 7602(k), and account for unplanned upsets and thus support 
the reasonableness of the standard as a whole.
    The EPA has attempted to ensure that we have not incorporated into 
proposed regulatory language any provisions that are inappropriate, 
unnecessary, or redundant in the absence of the SSM exemption. We are 
specifically seeking comment on whether there are any such provisions 
that we have inadvertently incorporated or overlooked. We are also 
seeking comment on the inclusion of the affirmative defense provisions. 
Finally, we solicit comment on provisions in the final rule applicable 
to startup and shutdown periods for continuous and batch process vents.
    In addition to the affirmative defense provisions described above, 
we are also proposing several changes throughout the rule and in Table 
9 (the table that specifies applicability of General Provisions to 
subpart VVVVVV of 40 CFR part 63) to specify applicable requirements 
during periods of startup and shutdown and periods of malfunction. For 
example, we are proposing to add new paragraphs in 40 CFR 
63.11501(c)(1)(vii) and (viii) that would require records of the 
occurrence and duration of malfunctions, as well as records of actions 
taken to minimize emissions during these periods and to fix 
malfunctioning equipment. We are also proposing to add a paragraph in 
40 CFR 63.11501(d)(8) that would require reporting of information 
related to each malfunction. Table 9 in the final rule states that 
63.6(e)(1)(i) does not apply to subpart VVVVVV. We are also proposing 
to add a new paragraph in 40 CFR 63.11495(d) that specifies the general 
duty to minimize emissions applies at all times. In addition to the 
proposed changes in the text of the rule, entries for 40 CFR 
63.6(e)(1)(i), 63.10(b)(2) and 63.10(d)(5) also would be changed to 
reference the new paragraphs in 40 CFR 63.11495(d), 63.11501(c) and 
63.11501(d). Finally, we are proposing to revise Table 9 to state that 
the performance testing requirements in 40 CFR 63.7(e)(1) do not apply. 
The comments to Table 9 for that provision identify the location of the 
applicable performance testing requirements for CMAS sources.

VI. Requirements for Metal HAP Process Vents

A. Definition of Metal HAP Process Vent

    A metal HAP process vent is defined in the final rule as ``the 
point of discharge to the atmosphere (or inlet to a control device, if 
any) of a metal HAP-containing gas stream from any CMPU at an affected 
source.'' We are requesting comment on the applicability of this 
definition to all types of equipment from which metal HAP are emitted. 
We are particularly interested in comments on how well it applies to 
chemical manufacturing processes in comparison to the definitions for 
batch and continuous process vents, which have been used in HON, MON 
and several other MACT standards for chemical manufacturing.

B. Metal HAP Process Vent Standards

    Since promulgation, we determined that the final rule does not 
clearly explain how the rule applies when the Table 1 metal HAP are 
emitted as a gaseous organo-metallic compound along with other organic 
compounds that are routed to an incinerator for control. To clarify our 
intent, the following discussion summarizes the requirements in the 
final rule for all types of metal HAP compounds, including organo-
metallic compounds. It also identifies potential limitations in these 
requirements and requests information to enable better characterization 
of affected CMPU.
    Table 4 to 40 CFR part 63, subpart VVVVVV specifies that an owner 
or operator of an affected CMPU with metal HAP emissions equal to or 
greater than 400 pounds per year (lb/yr) must reduce the metal HAP 
emissions by at least 95 percent. The emission limit specified in Table 
4 to subpart VVVVVV does not differentiate between compounds that are 
emitted as particulate and compounds that are emitted as vapor or as 
liquid droplets, or between organic and inorganic compounds. All Table 
1 metal HAP compounds in all phases are subject. Thus, in the case of a 
CMPU that uses an organo-metallic Table 1 metal HAP compound, both the 
400 lb/yr threshold and 95-percent emission limit apply. Although 
combustion would change the type of Table 1 metal HAP compound(s) 
emitted, it would not destroy the metal itself and likely would not 
reduce the mass by 95 percent. Thus, if the uncontrolled metal HAP 
emissions are greater than 400 lb/yr, additional control of the metal 
HAP would be required either upstream or downstream of the incinerator.
    To demonstrate initial compliance, the owner or operator must 
conduct either a performance test or an engineering assessment (except 
new sources using a baghouse as a control device are required to 
conduct a performance test). If the owner or operator elects to conduct 
a performance test for a CMPU from which the metal HAP are emitted as a 
vapor, then the test must be conducted using Method 29 because the 
other specified alternative, Method 5, is not applicable. To 
demonstrate ongoing compliance, the owner or operator must develop and 
operate in accordance with a site-specific monitoring plan. This 
requirement applies for any type of control device used to control 
metal HAP emissions.
    Although the metal HAP requirements apply to all Table 1 metal HAP 
as described above, the 400 lb/yr threshold was developed, primarily, 
based on information from CMPU where the metal HAP is emitted as 
particulate. In general, these facilities processed ores and/or 
manufactured solid materials such as pigments, catalysts or manganese 
dioxide. Some metal HAP at certain steps in some processes are liquids 
or dissolved in solvents, but these metal HAP compounds typically have 
very low vapor pressures and emissions; the bulk of the metal HAP 
emissions are particulates from operations such as grinding, mixing, 
calcining, drying and packaging. In addition, the control cost impacts 
were developed assuming the metal HAP are emitted in the form of 
particulate (See Docket ID No. EPA-HQ-OAR-2008-0334-0005). Therefore, 
we are requesting comment on whether there are reasons GACT for 
processes that emit gaseous Table 1 metal HAP should be different from 
GACT, as specified in the final rule. We are particularly interested in 
information on the types of processes that emit gaseous Table 1 metal 
HAP, the range in uncontrolled emissions from such processes, the types 
of emission points (i.e., are these emission points consistent with the 
definition of ``metal HAP process vent''), the types of control devices 
used to control such emissions and whether those processes also emit 
particulate metal HAP.

VII. Technical Corrections and Clarifications

    We are proposing several technical corrections. These amendments 
are

[[Page 4533]]

being proposed to correct inaccuracies and oversights that were 
promulgated in the final rule. These proposed changes are described in 
Table 1 of this preamble. We request comment on all of these proposed 
changes.

 Table 1--Miscellaneous Technical Corrections to 40 CFR Part 63, Subpart
                                 VVVVVV
------------------------------------------------------------------------
  Section of subpart VVVVVV            Description of correction
------------------------------------------------------------------------
40 CFR 63.11494(a)(3)........  We are proposing several changes to this
                                paragraph. First, we are proposing to
                                clarify that the 0.1-percent and 1.0-
                                percent concentration thresholds are on
                                a mass basis of the compound containing
                                the Table 1 HAP. Second, we are
                                proposing to clarify that all Table 1
                                HAP, except for quinoline and manganese
                                compounds, are considered carcinogenic,
                                probably carcinogenic or possibly
                                carcinogenic. Therefore, the
                                concentration threshold of 1.0 weight
                                percent applies only to quinoline and
                                manganese compounds, and the threshold
                                of 0.1 weight percent applies to all
                                other Table 1 HAP. Third, because it is
                                not clear under the final rule whether
                                an emission stream that contains a Table
                                1 HAP as a gaseous byproduct is a
                                ``process fluid,'' we are proposing
                                changes to clarify applicability of CMPU
                                that generate a Table 1 HAP byproduct.
                                If Table 1 HAP are generated as
                                byproduct, the proposed changes clarify
                                that the CMPU is subject to the rule if
                                the concentration of the Table 1 HAP in
                                any liquid stream in the CMPU exceeds
                                the same thresholds that apply to
                                feedstocks. Specifically, if quinoline
                                is generated as a byproduct, then the
                                CMPU is subject if the quinoline
                                concentration in any liquid stream in
                                the CMPU exceeds 1.0 percent by weight.
                                Similarly, if hydrazine or any other
                                organic Table 1 HAP is generated as a
                                byproduct, then the process is subject
                                if the collective concentration of these
                                compounds in any liquid stream is
                                greater than 0.1 percent by weight. In
                                addition, the proposed changes also
                                specify that a CMPU is subject if the
                                collective concentration of these Table
                                1 HAP exceeds 50 parts per million by
                                volume in any process vent stream. This
                                threshold was specified because this
                                concentration defines a process vent,
                                and such emissions streams are subject
                                to control. Finally, we are proposing to
                                consolidate paragraphs (a)(1) and (3) to
                                eliminate redundancy.
40 CFR 63.11494(c)(1)(vii)...  We are proposing to add a new paragraph
                                that would list lead oxide production at
                                lead acid battery manufacturing
                                facilities in those operations for which
                                this subpart does not apply. These
                                sources are covered by 40 CFR part 63,
                                subpart PPPPPP--NESHAP for Lead Acid
                                Battery Manufacturing Area Sources.
40 CFR 63.11494(d)...........  We are proposing to clarify that a CMPU
                                using only Table 1 metal HAP is not
                                subject to any requirements for
                                wastewater systems or heat exchange
                                systems. Only organic HAP are subject to
                                wastewater and heat exchange system
                                requirements. We are proposing this
                                change based on the fact that most metal
                                HAP compounds have a very low vapor
                                pressure and would not volatilize from
                                wastewater or cooling water. However,
                                given our discussion of organo-metallic
                                compounds in section VI.B of this
                                preamble, we are also requesting comment
                                on whether this change should be limited
                                to only certain types or classes of
                                metal HAP compounds for wastewater
                                systems, heat exchange systems or both
                                types of systems.
40 CFR 63.11495(a)(3)........  To clarify and improve the readability of
                                this section, we are proposing to split
                                it into an introductory section with
                                five subsections. One sentence that
                                contains two concepts also would be
                                split into two separate sentences. The
                                requirements, however, have not changed.
40 CFR 63.11496(f)(3)(i)(C)..  We are proposing to edit this paragraph
                                to add the acronym ``CMS.''
40 CFR 63.11496(f)(3)(ii)....  We are proposing to edit the first
                                sentence in this paragraph to remove the
                                unnecessary word ``report.''
40 CFR 63.11496(f)(3)(ii)....  To demonstrate initial compliance with
                                the emissions limit for HAP metals, 40
                                CFR 63.11496(f)(3)(ii) in the final rule
                                requires either a performance test or
                                engineering assessment. This paragraph
                                in the final rule also specifies that a
                                performance test must be conducted under
                                representative process operating
                                conditions, but it does not specify
                                conditions under which an engineering
                                assessment must be conducted. To correct
                                this oversight, and maintain consistency
                                with the conditions under which
                                performance testing must be conducted,
                                we are proposing to modify 40 CFR
                                63.11496(f)(3)(ii) to clarify that if a
                                source elects to conduct an engineering
                                assessment to demonstrate initial
                                compliance with the standards for metal
                                HAP process vents, then the design
                                evaluation must be conducted at
                                representative operating conditions for
                                the CMPU.
40 CFR 63.11498(a)(2),         Other rules, such as the HON, specify
 63.11502(b), and Table 6.      that discharge of wastewater to a
                                Resource Conservation and Recovery Act
                                (RCRA)-permitted underground injection
                                well is a treatment (i.e., control)
                                option for wastewater streams. We
                                intended to include the same option in
                                40 CFR part 63, subpart VVVVVV. However,
                                ``wastewater treatment'' is defined in
                                40 CFR 63.11502 as procedures that
                                remove or reduce HAP, which does not
                                clearly include discharge to an
                                underground injection well. To clarify
                                this point, we are proposing to add a
                                definition of ``hazardous waste
                                treatment'' in 40 CFR 63.11502(b) to
                                mean treatment in a RCRA-permitted
                                incinerator, process heater, boiler or
                                underground injection well. The specific
                                language in the proposed definition is
                                consistent with 40 CFR 63.138(h) of the
                                HON wastewater provisions. We are also
                                proposing corresponding changes to Table
                                6 to subpart VVVVVV. Specifically, for
                                each wastewater stream, Item 1.a would
                                require either wastewater treatment or
                                hazardous waste treatment. In addition,
                                Item 2.b would be edited to use the new
                                term ``hazardous waste treatment.'' The
                                proposed changes to Item 1.a also make
                                it clear that the treatment conducted to
                                meet Item 2.b would satisfy the
                                requirements of Item 1.a.
40 CFR 63.11501(c)(4)(i).....  We are proposing to replace the incorrect
                                word ``dimension'' with the correct word
                                ``dimensions.''
40 CFR 63.11502(a)...........  We are proposing to insert a reference to
                                the definition of the term ``isolated
                                intermediate'' in 40 CFR 63.2550 of the
                                MON because this term is used in the
                                definitions of several other terms in 40
                                CFR 63.11502.

[[Page 4534]]

 
40 CFR 63.11502(b)...........  We are proposing to modify the definition
                                of ``product'' to remove ``isolated
                                intermediates'' from the list of
                                materials that are not considered
                                products. This change would make the
                                definition of product consistent with
                                the definitions of chemical
                                manufacturing process and isolated
                                intermediate. A chemical manufacturing
                                process is defined as all equipment
                                which collectively functions to produce
                                a product or isolated intermediate.
                                Isolated intermediate is defined as a
                                product of a process that is stored
                                before subsequent processing.
40 CFR 63.11502(b)...........  We are proposing to add a definition for
                                the term ``uncontrolled emissions''
                                because the control threshold for batch
                                process vents and metal HAP process
                                vents in 40 CFR 63.11496(a) and (f) use
                                this term. The proposed definition would
                                read as follows: ``Uncontrolled
                                emissions means process vent emissions
                                at the outlet of the last recovery
                                device, if any, and prior to any control
                                device. In the absence of both recovery
                                devices and control devices,
                                uncontrolled emissions are the emissions
                                discharged to the atmosphere.''
------------------------------------------------------------------------

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action'' because it may raise 
novel legal or policy issues. Accordingly, the EPA submitted this 
action to the Office of Management and Budget (OMB) for review under 
Executive Order 12866 and Executive Order 13563 (76 FR 3821, January 
21, 2011), and any changes made in response to OMB recommendations have 
been documented in the docket for this action.

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 Request (ICR) document prepared by the EPA has 
been assigned EPA ICR number 2323.03. The information collection 
requirements are not enforceable until OMB approves them.
    The information requirements are based on notification, 
recordkeeping and reporting requirements in the NESHAP General 
Provisions (40 CFR part 63, subpart A), which are mandatory for all 
operators subject to national emission standards. These recordkeeping 
and reporting requirements are specifically authorized by section 114 
of the CAA (42 U.S.C. 7414). All information submitted to the EPA 
pursuant to the recordkeeping and reporting requirements for which a 
claim of confidentiality is made is safeguarded according to agency 
policies set forth in 40 CFR part 2, subpart B.
    For this proposed rule, the EPA is adding affirmative defense to 
the estimate of burden in the ICR. To provide the public with an 
estimate of the relative magnitude of the burden associated with an 
assertion of the affirmative defense position adopted by a source, the 
EPA has provided administrative adjustments to this ICR to show what 
the notification, recordkeeping and reporting requirements associated 
with the assertion of the affirmative defense might entail. The EPA's 
estimate for the required notification, reports and records for any 
individual incident, including the root cause analysis, totals $2,958 
and is based on the time and effort required of a source to review 
relevant data, interview plant employees, and document the events 
surrounding a malfunction that has caused an exceedance of an emissions 
limit. The estimate also includes time to produce and retain the record 
and reports for submission to the EPA. The EPA provides this 
illustrative estimate of this burden because these costs are only 
incurred if there has been a violation and a source chooses to take 
advantage of the affirmative defense.
    Given the variety of circumstances under which malfunctions could 
occur, as well as differences among sources' operation and maintenance 
practices, we cannot reliably predict the severity and frequency of 
malfunction-related excess emissions events for a particular source. It 
is important to note that the EPA has no basis currently for estimating 
the number of malfunctions that would qualify for an affirmative 
defense. Current historical records would be an inappropriate basis, as 
source owners or operators previously operated their facilities in 
recognition that they were exempt from the requirement to comply with 
emissions standards during malfunctions. Of the number of excess 
emissions events reported by source operators, only a small number 
would be expected to result from a malfunction (based on the definition 
above), and only a subset of excess emissions caused by malfunctions 
would result in the source choosing to assert the affirmative defense. 
Thus, we believe the number of instances in which source operators 
might be expected to avail themselves of the affirmative defense will 
be extremely small. For this reason, we estimate no more than 2 or 3 
such occurrences for all sources subject to 40 CFR part 63, subpart 
VVVVVV over the 3-year period covered by this ICR. We expect to gather 
information on such events in the future and will revise this estimate 
as better information becomes available. The annual monitoring, 
reporting and recordkeeping burden for this collection (averaged over 
the first 3 years after the effective date of the standards) for these 
amendments to subpart VVVVVV is estimated to be $3,141 per year. This 
includes 30 labor hours per year at a total labor cost of $3,141 per 
year. There is no change in annual burden to the Federal government for 
these amendments.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When these ICR 
are approved by OMB, the agency will publish a technical amendment to 
40 CFR part 9 in the Federal Register to display the OMB control 
numbers for the approved information collection requirements contained 
in the final rules.
    To comment on the agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, the EPA has established a public docket 
for this rule, which includes this ICR, under Docket ID number EPA-HQ-
OAR-2008-0334. Submit any comments related to the ICR to the EPA and 
OMB. See the ADDRESSES

[[Page 4535]]

section at the beginning of this notice for where to submit comments to 
the EPA. Send comments to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street 
NW., Washington, DC 20503, Attention: Desk Office for the EPA. Since 
OMB is required to make a decision concerning the ICR between 30 and 60 
days after March 30, 2012, a comment to OMB is best assured of having 
its full effect if OMB receives it by February 29, 2012. The final rule 
will respond to any OMB or public comments on the information 
collection requirements contained in this proposal.

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 Procedures 
Act or any other statute unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's regulations at 13 CFR 
121.201(less than 500, 750 or 1,000 employees, depending on the 
specific NAICS Code under subcategory 325); (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 that is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any new requirements on any small 
entities because it does not impose any additional regulatory 
requirements beyond those already promulgated in the final rule. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local or tribal governments or the private sector. 
This proposed rule imposes no enforceable duty on any state, local or 
tribal governments or the private sector. Therefore, this proposed rule 
is not subject to the requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule proposes 
amendments to aid with compliance, but does not change the level of the 
standards in the rule.

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 proposed rule will not impose 
direct compliance costs on state or local governments, and will not 
preempt state law. Thus, Executive Order 13132 does not apply to this 
action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between the EPA and state and local 
governments, the EPA specifically solicits comment on this proposed 
action from state and local officials.

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

    This proposed rule does not have tribal implications, as specified 
in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this proposed rule.
    The EPA specifically solicits additional comment on this proposed 
action from tribal officials.

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

    The 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 Executive Order has the potential to influence the regulation. This 
proposed rule is not subject to Executive Order 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 action 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, this action does not change the level of 
standards already in place.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995, Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs the EPA to use voluntary consensus standards (VCS) in its 
regulatory activities, unless to do so would be inconsistent with 
applicable law or otherwise impractical. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures and 
business practices) that are developed or adopted by VCS bodies. NTTAA 
directs the EPA to provide Congress, through OMB, explanations when the 
agency decides not use available and applicable VCS.
    This proposed rulemaking does not involve technical standards. 
Therefore, the EPA did not consider the use of any VCS.

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.
    The EPA has determined that this proposed rule will 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

[[Page 4536]]

populations without having any disproportionately high and adverse 
human health or environmental effects on any population, including any 
minority or low-income population. The amendments do not relax the 
control measures on sources regulated by the rules, and, therefore, 
will not cause emissions increases from these sources.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances.

    Dated: January 13, 2012.
Lisa P. Jackson,
Administrator.
    For the reasons cited in the preamble, title 40, chapter I, part 63 
of the Code of Federal Regulations is proposed to be 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 VVVVVV--[AMENDED]

    2. Section 63.11494 is amended by:
    a. Revising paragraph (a);
    b. Adding paragraph (c)(1)(vii);
    c. Revising the last sentence in paragraph (d); and
    d. Revising paragraph (e) to read as follows:


Sec.  63.11494  What are the applicability requirements and compliance 
dates?

    (a) Except as specified in paragraph (c) of this section, you are 
subject to this subpart if you own or operate a chemical manufacturing 
process unit (CMPU) that meets the conditions specified in paragraphs 
(a)(1) and (2) of this section.
    (1) The CMPU is located at an area source of hazardous air 
pollutant (HAP) emissions.
    (2) HAP listed in Table 1 to this subpart (Table 1 HAP) are present 
in the CMPU, as specified in paragraph (a)(2)(i), (ii), (iii), (iv) or 
(v) of this section.
    (i) The CMPU uses as feedstock, any material that contains 
quinoline and/or manganese compounds at a concentration greater than 
1.0 percent by weight, or other Table 1 HAP at a collective 
concentration greater than 0.1 percent by weight. To determine the 
Table 1 HAP content of feedstocks, you may rely on formulation data 
provided by the manufacturer or supplier, such as the Material Safety 
Data Sheet (MSDS) for the material. If the concentration in an MSDS is 
presented as a range, use the upper bound of the range.
    (ii) Quinoline is generated as byproduct and is present in the CMPU 
in any liquid stream (process or waste) at a concentration greater than 
1.0 percent by weight.
    (iii) Hydrazine and/or Table 1 organic compounds other than 
quinoline are generated as byproduct and are present in the CMPU in any 
liquid stream (process or waste) at a collective concentration greater 
than 0.1 percent by weight.
    (iv) Hydrazine and/or any Table 1 organic compounds are generated 
as byproduct and are present in the CMPU in any process vent stream at 
a collective concentration greater than 50 parts per million by volume 
(ppmv).
    (v) Hydrazine or any Table 1 organic compound is produced as a 
product of the CMPU.
* * * * *
    (c) * * *
    (1) * * *
    (vii) Lead oxide production at Lead Acid Battery Manufacturing 
Facilities, subject to subpart PPPPPP of this part.
* * * * *
    (d) * * * A CMPU using only Table 1 metal HAP is required to 
control only total CAA section 112(b) metal HAP in accordance with 
Sec.  63.11495 and, if applicable, Sec.  63.11496(f).
* * * * *
    (e) Any source subject to this subpart that installed a federally-
enforceable control device on an affected CMPU by the first substantive 
compliance date of an otherwise applicable MACT standard, and, as a 
result, became an area source under 40 CFR part 63, is required to 
obtain a permit under 40 CFR part 70 or 40 CFR part 71. For existing 
sources subject to title V, as a result of this rule, a complete title 
V permit application must be submitted no later than 12 months after 
date of publication of the final rule amendments in the Federal 
Register if the source is subject to this rule on that date. New 
sources and existing sources that become subject to this rule after 
date of publication of the final rule amendments in the Federal 
Register must submit a complete title V permit application no later 
than 12 months after becoming subject to this rule. Otherwise, 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). Notwithstanding 
the previous sentence, you must continue to comply with the provisions 
of this subpart.
* * * * *
    3. Section 63.11495 is amended by:
    a. Revising paragraphs (a)(1) and (a)(3);
    b. Adding paragraph (c) heading; and
    c. Adding paragraph (d) to read as follows:


Sec.  63.11495  What are the management practices and other 
requirements?

    (a) * * *
    (1) Each process vessel must be equipped with a cover or lid that 
must be closed at all times when it is in organic HAP service or metal 
HAP service, except for manual operations that require access, such as 
material addition and removal, inspection, sampling and cleaning.
* * * * *
    (3) You must conduct inspections of process vessels and equipment 
for each CMPU in organic HAP service or metal HAP service, as specified 
in paragraphs (a)(3)(i) through (v) of this section, to demonstrate 
compliance with paragraph (a)(1) of this section and to determine that 
the process vessels and equipment are sound and free of leaks.
    (i) Inspections must be conducted at least quarterly.
    (ii) For these inspections, detection methods incorporating sight, 
sound or smell are acceptable. Indications of a leak identified using 
such methods constitute a leak unless you demonstrate that the 
indications of a leak are due to a condition other than loss of HAP. If 
indications of a leak are determined not to be HAP in one quarterly 
monitoring period, you must still perform the inspection and 
demonstration in the next quarterly monitoring period.
    (iii) As an alternative to conducting inspections, as specified in 
paragraph (a)(3)(ii) of this section, you may use Method 21 of 40 CFR 
part 60, appendix A-7, with a leak definition of 500 ppmv to detect 
leaks. You may also use Method 21 with a leak definition of 500 ppmv to 
determine if indications of a leak identified during an inspection 
conducted in accordance with paragraph (a)(3)(ii) of this section are 
due to a condition other than loss of HAP. The procedures in this 
paragraph (a)(3)(iii) may not be used as an alternative to the 
inspection required by paragraph (a)(3)(ii) of this section for process 
vessels that contain metal HAP as particulate.
    (iv) Inspections must be conducted while the subject CMPU is 
operating.
    (v) No inspection is required in a calendar quarter during which 
the subject CMPU does not operate for the entire calendar quarter and 
is not in organic HAP service or metal HAP service. If the CMPU 
operates at all

[[Page 4537]]

during a calendar quarter, an inspection is required.
* * * * *
    (c) Startup, shutdown and malfunction. * * *
    (d) General duty. At all times, you must operate and maintain any 
affected source, including associated air pollution control equipment 
and monitoring equipment, in a manner consistent with safety and good 
air pollution control practices for minimizing emissions. Determination 
of whether such operation and maintenance procedures are being used 
will be based on information available to the Administrator, which may 
include, but is not limited to, monitoring results, review of operation 
and maintenance procedures, review of operation and maintenance records 
and inspection of the source.
    4. Section 63.11496 is amended by revising paragraphs (f)(3)(i)(C), 
(f)(3)(ii) and (g)(1) to read as follows:


Sec.  63.11496  What are the standards and compliance requirements for 
process vents?

* * * * *
    (f) * * *
    (3) * * *
    (i) * * *
    (C) Operation and maintenance plan for the control device 
(including a preventative maintenance schedule consistent with the 
manufacturer's instructions for routine and long-term maintenance) and 
continuous monitoring system (CMS).
* * * * *
    (ii) You must conduct a performance test or an engineering 
assessment for each CMPU subject to a HAP metals emissions limit in 
Table 4 to this subpart and report the results in your Notification of 
Compliance Status (NOCS). Each performance test or engineering 
assessment must be conducted under representative operating conditions, 
and sampling for each performance test must be conducted at both the 
inlet and outlet of the control device. Upon request, you shall make 
available to the Administrator such records as may be necessary to 
determine the conditions of performance tests. If you own or operate an 
existing affected source, you are not required to conduct a performance 
test if a prior performance test was conducted within the 5 years prior 
to the effective date using the same methods specified in paragraph 
(f)(3)(iii) of this section, and, either no process changes have been 
made since the test, or, if you can demonstrate that the results of the 
performance test, with or without adjustments, reliably demonstrate 
compliance despite process changes.
* * * * *
    (g) * * *
    (1) Requirements for Performance Tests. (i) The requirements 
specified in Sec. Sec.  63.2450(g)(1) through (4) apply instead of, or 
in addition to, the requirements specified in 40 CFR part 63, subpart 
SS.
    (ii) Upon request, you shall make available to the Administrator, 
such records as may be necessary to determine the conditions of 
performance tests.
* * * * *
    5. Section 63.11498 is amended by revising paragraph (a)(2) to read 
as follows:


Sec.  63.11498  What are the standards and compliance requirements for 
wastewater systems?

    (a) * * *
    (2) You are not required to determine the partially soluble 
concentration in wastewater that is hard piped to a combustion unit or 
hazardous waste treatment unit, as specified in Table 6, Item 2.b to 
this subpart, or Table 6, Item 2.c to this subpart.
* * * * *
    6. Section 63.11501 is amended by:
    a. Revising the section heading;
    b. Revising the second sentence in paragraph (c) introductory text, 
and paragraph (c)(1) introductory text;
    c. Adding paragraphs (c)(1)(vii) and (c)(1)(viii);
    d. Revising paragraph (c)(4)(i);
    e. Adding paragraph (c)(8);
    d. Revising the second sentence in paragraph (d) introductory text;
    e. Adding paragraph (d)(8); and
    f. Adding paragraph (e) to read as follows:


Sec.  63.11501  What are the notification, recordkeeping, and reporting 
requirements, and how may I assert an affirmative defense for 
exceedance of emission limit during malfunction?

* * * * *
    (c) * * * If you are subject, you must comply with the 
recordkeeping and reporting requirements of Sec.  63.10(b)(2)(iii) and 
(vi) through (xiv), and the applicable requirements specified in 
paragraphs (c)(1) through (8) of this section.
    (1) For each CMPU subject to this subpart, you must keep the 
records specified in paragraphs (c)(1)(i) through (viii) of this 
section.
* * * * *
    (vii) Records of the occurrence and duration of each malfunction of 
operation (i.e., process equipment) or the air pollution control and 
monitoring equipment.
    (viii) Records of actions taken during periods of malfunction to 
minimize emissions in accordance with Sec.  63.11495(d), including 
corrective actions to restore malfunctioning process and air pollution 
control and monitoring equipment to its normal or usual manner of 
operation.
* * * * *
    (4) * * *
    (i) Keep records of the vessel dimensions, capacity, and liquid 
stored, as specified in Sec.  63.1065(a).
* * * * *
    (8) For continuous process vents subject to Table 3 to this 
subpart, keep records of the occurrence and duration of each startup 
and shutdown of operation of process equipment, or of air pollution 
control and monitoring equipment.
    (d) * * * Reports are required only for semiannual periods during 
which you experienced any of the events described in paragraphs (d)(1) 
through (8) of this section.
* * * * *
    (8) Malfunctions. If a malfunction occurred during the reporting 
period, the report must include the number, duration and a brief 
description for each type of malfunction which occurred during the 
reporting period, and which caused or may have caused any applicable 
emission limitation to be exceeded. The report must include an estimate 
of the volume of regulated pollutants emitted and attributed to the 
malfunction, with a description of the method used to estimate the 
emissions. The report must also include a description of actions you 
took during a malfunction of an affected source to minimize emissions 
in accordance with Sec.  63.11495(d), including actions taken to 
correct a malfunction.
    (e) Affirmative defense for exceedance of emission limit during 
malfunction. In response to an action to enforce the standards set 
forth in Sec. Sec.  63.11495 through 63.11499, you may assert an 
affirmative defense to a claim for civil penalties for exceedances of 
such standards that are caused by malfunction, as defined at 40 CFR 
63.2. Appropriate penalties may be assessed, however, if you fail to 
meet your burden of proving all of the requirements in the affirmative 
defense. The affirmative defense is not available for claims for 
injunctive relief.
    (1) To establish the affirmative defense in any action to enforce 
such a limit, you must timely meet the notification requirements in 
paragraph (e)(2) of this section, and must prove by a preponderance of 
evidence that: (i) The excess emissions:

[[Page 4538]]

    (A) Were caused by a sudden, infrequent and unavoidable failure of 
air pollution control and monitoring equipment, process equipment, or a 
process to operate in a normal or usual manner; and
    (B) Could not have been prevented through careful planning, proper 
design, or better operation and maintenance practices; and
    (C) Did not stem from any activity or event that could have been 
foreseen and avoided, or planned for; and
    (D) Were not part of a recurring pattern indicative of inadequate 
design, operation or maintenance; and
    (ii) Repairs were made as expeditiously as possible when the 
applicable emission limitations were being exceeded. Off-shift and 
overtime labor were used, to the extent practicable to make these 
repairs; and
    (iii) The frequency, amount and duration of the excess emissions 
(including any bypass) were minimized to the maximum extent practicable 
during periods of such emissions; and
    (iv) If the excess emissions resulted from a bypass of control 
equipment or a process, then the bypass was unavoidable to prevent loss 
of life, personal injury or severe property damage; and
    (v) All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality, the environment and human 
health; and
    (vi) All emissions monitoring and control systems were kept in 
operation, if at all possible, consistent with safety and good air 
pollution control practices; and
    (vii) All of the actions in response to the excess emissions were 
documented by properly signed, contemporaneous operating logs; and
    (viii) At all times, the affected source was operated in a manner 
consistent with good practices for minimizing emissions; and
    (ix) A written root cause analysis has been prepared, the purpose 
of which is to determine, correct and eliminate the primary causes of 
the malfunction and the excess emissions resulting from the malfunction 
event at issue. The analysis must also specify, using best monitoring 
methods and engineering judgment, the amount of excess emissions that 
were the result of the malfunction.
    (2) Notification. If you experience an exceedance of your emission 
limit(s) during a malfunction, you must submit a written report to the 
Administrator within 45 business days of the initial occurrence of the 
exceedance of the standard(s) in Sec. Sec.  63.11495 through 63.11499 
to demonstrate, with all necessary supporting documentation, that it 
has met the requirements set forth in paragraph (e)(1) of this section. 
You may seek an extension of this deadline for up to 30 additional 
business days by submitting a written request to the Administrator 
before the expiration of the 45 business-day period. Until a request 
for an extension has been approved by the Administrator, you are 
subject to the requirement to submit such report within 45 business 
days.
    7. Section 63.11502 is amended by:
    a. Adding in alphabetical order the term ``Isolated intermediate 
(Sec.  63.2550),'' and removing the term ``Family of materials (Sec.  
63.2550)'' in paragraph (a); and
    b. Adding in alphabetical order definitions for ``Affirmative 
defense,'' ``Family of materials,'' ``Hazardous waste treatment,'' and 
``Uncontrolled emissions,'' revising paragraph (1) of the definition of 
``Chemical manufacturing process,'' and revising the definitions for 
``In organic HAP service'' and ``Product'' in paragraph (b) to read as 
follows:


Sec.  63.11502  What definitions apply to this subpart?

    (a) * * *
    Isolated intermediate (Sec.  63.2550)
* * * * *
    (b) * * *
    Affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, regarding 
which the defendant has the burden of proof, and the merits of which 
are independently and objectively evaluated in a judicial or 
administrative proceeding.
* * * * *
    Chemical manufacturing process * * *
    (1) All cleaning operations;
* * * * *
    Family of materials means a grouping of materials that have the 
same basic composition or the same basic end use or functionality; are 
produced using the same basic feedstocks, the same manufacturing 
equipment configuration and in the same sequence of steps; and whose 
production results in emissions of the same Table 1 HAP at 
approximately the same rate per pound of product produced. Examples of 
families of materials include multiple grades of same product or 
different variations of a product (e.g., blue, black and red resins).
* * * * *
    Hazardous waste treatment, as used in the wastewater requirements, 
means treatment in any of the following units:
    (1) A hazardous waste incinerator for which the owner or operator 
has been issued a final permit under 40 CFR part 270 and complies with 
the requirements of 40 CFR part 264, subpart O, or has certified 
compliance with the interim status requirements of 40 CFR part 265, 
subpart O;
    (2) A process heater or boiler for which you either have been 
issued a final permit under 40 CFR part 270 and comply with the 
requirements of 40 CFR part 266, subpart H, or for which you have 
certified compliance with the interim status requirements of 40 CFR 
part 266, subpart H; or
    (3) An underground injection well for which the owner or operator 
has been issued a final permit under 40 CFR part 270 or 40 CFR part 144 
and complies with the requirements of 40 CFR part 122.
* * * * *
    In organic HAP service means that a process vessel or piece of 
equipment either contains or contacts a feedstock, byproduct or product 
that contains an organic HAP, excluding any organic HAP used in manual 
cleaning activities. A process vessel is no longer in organic HAP 
service after the vessel has been emptied to the extent practicable 
(i.e., a vessel with liquid left on process vessel walls or as bottom 
clingage, but not in pools, due to floor irregularity, is considered 
completely empty) and any cleaning has been completed.
* * * * *
    Product means a compound or chemical which is manufactured as the 
intended product of the CMPU. Products include co-products. By-
products, impurities, wastes and trace contaminants are not considered 
products.
* * * * *
    Uncontrolled emissions means process vent emissions at the outlet 
of the last recovery device, if any, and prior to any control device. 
In the absence of both recovery devices and control devices, 
uncontrolled emissions are the emissions discharged to the atmosphere.
* * * * *

Table 6 to Subpart VVVVVV of Part 63--[Amended]

    8. Table 6 to subpart VVVVVV of part 63 is revised to read as 
follows:

[[Page 4539]]



  Table 6 to Subpart VVVVVV of Part 63--Emission Limits and Compliance
                   Requirements for Wastewater Systems
 [As required in Sec.   63.11498, you must comply with the requirements
         for wastewater systems as shown in the following table]
------------------------------------------------------------------------
        For each ...              You must ...        And you must ...
------------------------------------------------------------------------
1. Wastewater Stream........  a. Discharge to       i. Maintain records
                               onsite or offsite     identifying each
                               wastewater            wastewater stream
                               treatment or          and documenting the
                               hazardous waste       type of treatment
                               treatment.            that it receives.
                                                     Multiple wastewater
                                                     streams with
                                                     similar
                                                     characteristics and
                                                     from the same type
                                                     of activity in a
                                                     CMPU may be grouped
                                                     together for
                                                     recordkeeping
                                                     purposes.
------------------------------------------------------------------------
2. Wastewater stream          a. Use a decanter,    i. For the water
 containing partially          steam stripper,       phase, comply with
 soluble HAP at a              thin film             the requirements in
 concentration >=10,000 ppmw   evaporator, or        Item 1 of this
 and separate organic and      distillation unit     table, and
 water phases.                 to separate the      ii. For the organic
                               water phase from      phase(s), recycle
                               the organic           to a process, use
                               phase(s); or          as fuel, or dispose
                                                     as hazardous waste
                                                     either onsite or
                                                     offsite, and
                                                    iii. Keep records of
                                                     the wastewater
                                                     streams subject to
                                                     this requirement
                                                     and the disposition
                                                     of the organic
                                                     phase(s).
------------------------------------------------------------------------
                               b. Hard pipe the     i. Keep records of
                               entire wastewater     the wastewater
                               stream to onsite      streams subject to
                               hazardous waste       this requirement
                               treatment, or hard    and the disposition
                               pipe the entire       of the wastewater
                               wastewater stream     streams.
                               to a point of
                               transfer to offsite
                               hazardous waste
                               treatment.
------------------------------------------------------------------------

    9. Table 9 to subpart VVVVVV of part 63 is amended by:
    a. Revising the entry for 63.6(e)(1)(i) and (ii), (e)(3) and 
(f)(1);
    b. Removing the entry for 63.7(a)(2), (b), (d), (e)(1)-(e)(3);
    c. Adding a new entry for 63.7(a)(2), (b), (d), (e)(2)-(e)(3);
    d. Adding a new entry for 63.7(e)(1);
    e. Removing the entry for 63.8(a)(1), (a)(4), (b), (c)(1)-(c)(3), 
(f)(1)-(5);
    f. Adding new entries for 63.8(a)(1), (a)(4), (b), (c)(1)(ii), 
(c)(2)-(c)(3), (f)(1)-(5), and 63.8(c)(1)(i) and 63.8(c)(1)(iii);
    g. Removing the entry for 63.8(c)(6)-(c)(8), (d), (e), (f)(6);
    h. Adding new entries for 63.8(c)(6)-(c)(8), (d)(1)-(d)(2), (e), 
(f)(6) and 63.8(d)(3);
    i. Removing the entry for 63.10(b)(2)(i)-(b)(2)(v);
    j. Adding new entries for 63.10(b)(2)(i), 63.10(b)(2)(ii), 
63.10(b)(2)(iii), and 63.10(b)(2)(iv)-(v);
    k. Removing the entry for 63.10(c)(7)-(c)(8), (c)(10)-(c)(12), 
(c)(15);
    l. Adding new entries for 63.10(c)(7)-(8), 63.10(c)(10), 
63.10(c)(11), 63.10(c)(12) and 63.10(c)(15); and
    m. Revising the entry for 63.10(d)(5) to read as follows:

           Table 9 to Subpart VVVVVV of Part 63--Applicability of General Provisions to Subpart VVVVVV
----------------------------------------------------------------------------------------------------------------
                                                          Applies to Subpart
             Citation                     Subject               VVVVVV                    Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
 
                                                  * * * * * * *
63.6(e)(1)(i) and (ii), (e)(3),    SSM Requirements....  No.................  See Sec.   63.11495(d) for general
 and (f)(1).                                                                   duty requirement.
 
                                                  * * * * * * *
63.7(a)(2), (b), (d), (e)(2)-      Performance Testing   Yes/No.............  Requirements apply if conducting
 (e)(3).                            Schedule,                                  test for metal HAP control;
                                    Notification of                            requirements in Sec.  Sec.
                                    Performance Test,                          63.997(c)(1), (d), (e) and Sec.
                                    Performance Testing                        63.999(a)(1) apply, as referenced
                                    Facilities, and                            in Sec.   63.11496(g), if
                                    Conduct of                                 conducting test for organic HAP
                                    Performance Tests.                         or hydrogen halide and halogen
                                                                               HAP control device.
63.7(e)(1).......................  Performance Testing.  No.................  See Sec.   63.11496(f)(3)(ii) if
                                                                               conducting a test for metal HAP
                                                                               emissions. See Sec.  Sec.
                                                                               63.11496(g) and 63.997(e)(1) if
                                                                               conducting a test for continuous
                                                                               process vents or for hydrogen
                                                                               halide and halogen emissions. See
                                                                               Sec.  Sec.   63.11496(g) and
                                                                               63.2460(c) if conducting a test
                                                                               for batch process vents.
63.8(a)(1), (a)(4), (b),           Monitoring            Yes................  ..................................
 (c)(1)(ii), (c)(2)-(c)(3),         Requirements.
 (f)(1)-(5).
63.8(c)(1)(i)....................  General Duty to       No.................  ..................................
                                    Minimize Emissions
                                    and CMS Operation.

[[Page 4540]]

 
63.8(c)(1)(iii)..................  Requirement to        No.................  ..................................
                                    Develop SSM Plan
                                    for CMS.
 
                                                  * * * * * * *
63.8(c)(6)-(c)(8), (d)(1)-(d)(2),  ....................  Yes................  Requirements apply only if you use
 (e), (f)(6).                                                                  a continuous emission monitoring
                                                                               system (CEMS) to demonstrate
                                                                               compliance with the alternative
                                                                               standard in Sec.   63.11496(e).
63.8(d)(3).......................  Written Procedures    Yes................  Requirement applies except for
                                    for CMS.                                   last sentence, which refers to an
                                                                               SSM plan. SSM plans are not
                                                                               required.
 
                                                  * * * * * * *
63.10(b)(2)(i)...................  Recordkeeping of      No.................  See Sec.   63.11501(c)(8) for
                                    Occurrence and                             recordkeeping of occurrence and
                                    Duration of                                duration of each startup and
                                    Startups and                               shutdown for continuous process
                                    Shutdowns.                                 vents that are subpart to Table 3
                                                                               to this subpart.
63.10(b)(2)(ii)..................  Recordkeeping of      No.................  See Sec.   63.11501(c)(1)(vii) and
                                    Malfunctions.                              (viii) for recordkeeping of (1)
                                                                               occurrence and duration and (2)
                                                                               actions taken during malfunction.
63.10(b)(2)(iii).................  Maintenance Records.  Yes................  ..................................
63.10(b)(2)(iv) and (v)..........  Actions Taken to      No.................  ..................................
                                    Minimize Emissions
                                    During SSM.
 
                                                  * * * * * * *
63.10(c)(7)-(8)..................  Additional            Yes................  ..................................
                                    Recordkeeping
                                    Requirements for
                                    CMS--Identifying
                                    Exceedances and
                                    Excess Emissions.
63.10(c)(10).....................  Recordkeeping Nature  No.................  See Sec.   63.11501(c)(1)(vii) and
                                    and Cause of                               (viii) for malfunctions
                                    Malfunctions.                              recordkeeping requirements.
63.10(c)(11).....................  Recording Corrective  No.................  See Sec.   63.11501(c)(1)(vii) and
                                    Actions.                                   (viii) for malfunctions
                                                                               recordkeeping requirements.
63.10(c)(12).....................  ....................  Yes................  ..................................
63.10(c)(15).....................  Use of SSM Plan.....  No.................  ..................................
 
                                                  * * * * * * *
63.10(d)(5)......................  SSM Reports.........  No.................  See Sec.   63.11501(d)(8) for
                                                                               reporting requirements for
                                                                               malfunctions.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-1610 Filed 1-27-12; 8:45 am]
BILLING CODE 6560-50-P