A. Do the Final Standards Apply to My Source?

The final subpart BBBBBBB standards apply to each existing and new area source chemical preparations facility, as defined in the final rule. The standards do not apply to research or laboratory facilities, as defined in section 112(c)(7) of the CAA. They also do not apply to chemical preparation operations described by the NAICS code 325998 that manufacture indelible ink, India ink, writing ink, and stamp pad ink, which are subject to area source regulations for paints and allied products (40 CFR part 63, Subpart CCCCCCC).

B. When Must I Comply With the Final Standards?

All existing area source facilities subject to this final rule are required to comply with the rule requirements no later than December 30, 2010. New sources are required to comply with the rule requirements by December 30, 2009 or upon startup of the facility, whichever is later.

Because the majority of existing sources in this category are already wellcontrolled, we believe that one year is a reasonable amount of time to allow existing sources to conduct compliance demonstrations and prepare the initial reports required for compliance with the final rule.

C. What Are My Final Standards?

As we explained in the proposed rule, PM is a surrogate for the target HAP (i.e., metal compounds of chromium, lead, manganese, and nickel). The final standards for existing sources require process vent streams from chemical manufacturing processes with equipment that uses, contains or contacts target HAP to either be routed to a control device with a 95 percent PM reduction efficiency or to meet an outlet concentration of 0.03 gr/dscf, with or without control. For new sources the final standards require these process vent streams to either be routed to a control device with a 98 percent PM reduction efficiency or the process vent stream must meet an outlet concentration of 0.03 gr/ dscf, with or without control. On a process by process basis, if an existing source can demonstrate and certify that the PM concentration of each of the process vent streams from equipment that uses, contains or contacts target HAP within a chemical preparation operation will not exceed 0.03 gr/dscf, then the source is not required to route the process vent streams to a control device with a 95 percent PM reduction efficiency. The final rule includes appropriately reduced recordkeeping and reporting requirements for sources that can comply with the 0.03 gr/dscf alternative standard without the use of a control device. D. What Are My Initial and Continuous Monitoring Requirements?

The final standards require an initial compliance assessment that process vent streams are either being routed to a control device with a 95 percent (98 percent for new sources) PM reduction efficiency or with an outlet PM concentration of 0.03 gr/dscf, or a certification that process vent streams from equipment that either contains, contacts, or is processing target HAPcontaining materials will not exceed a PM concentration of 0.03 gr/dscf. The owner and operator must also establish parameter values (e.g., liquid flow or pressure drop) for the control device that will be monitored to demonstrate continuous compliance or must install a bag system leak detection system or audible parameter monitoring alarm which indicates failure of the particulate control system.

The rule provides alternatives for demonstrating initial compliance. Specifically, initial compliance assessments to determine whether the PM percent reduction standard or outlet concentration standard are being met may consist of performance testing, control device manufacturer performance guarantees, or engineering calculations. Sources that opt to demonstrate and certify that the PM concentration of each of the process vent streams from equipment that either contains, contacts, or is processing target HAPcontaining materials within a chemical preparation operation will not exceed 0.03 gr/dscf must provide either emission test data or engineering calculations to support their certification.

For existing sources, the final standards require owners or operators to conduct the initial compliance assessment by June 28, 2011. Owners or operators of new sources are required to
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conduct compliance assessments by June 28, 2010 or 180 days after startup, whichever is later.

The rule provides alternative for demonstrating continuous compliance. Continuous compliance with the final emission limits is demonstrated by monitoring control device operating parameters established during the initial compliance assessment or with a bag leak detector system. For an existing source that opts to use a CPMS, the final standards for demonstrating continuous compliance are based upon an overall average per batch or over 24 hours, whichever is less, when the equipment either contains, contacts, or is processing target HAP containing materials. As alternatives to a CPMS, sources must install either a bag leak detection system, such as a triboelectric monitor and alarm, or a parameter monitor alarm that will alert operators of periods when the device parameters (such as pressure drop or scrubber liquid flow rate) are outside the operating upper or lower threshold or range specified by the control device manufacturer.

In the final rule, sources certifying that the particulate matter concentration of each of the process vent streams from equipment that uses, contains or contacts target HAP within a chemical preparation operation will not exceed 0.03 gr/dscf have appropriately reduced duct collection system inspection requirements to ensure that the basis for the grain loading does not change. In addition, they must record material loss information that supports their certification for each subsequent quarter and must continue to operate in accordance with their certifications.
E. What Are My Notification, Recordkeeping, and Reporting Requirements?

Affected new and existing sources are required to comply with certain reporting requirements set forth in this final rule as well as certain requirements set forth in the General Provisions (40 CFR part 63, subpart A), as identified in Tables 5 and 6 of this final rule. The General Provisions include specific requirements for notifications, recordkeeping, and reporting. Among other requirements, each facility is required to submit an initial notification that complies with the requirements in 40 CFR 63.9(b) of the General Provisions within 120 days of the effective date of the final rule and a notification of compliance status that complies with the requirements in 40 CFR 63.9(h) within 60 days after completion of the initial compliance assessment. Sources must keep records to identify periods when equipment contains, contacts, or is processing target HAPcontaining materials, as well as records of control device performance guarantees, inspections and monitoring system calibrations for CPMS, if applicable. Facilities are also required to submit semiannual compliance summary reports if a deviation occurs within the reporting period. If no deviation occurs, then annual compliance summary reports must be submitted.

Sources certifying that the particulate matter concentration of each of the process vent streams from equipment that either contains, contacts, or is processing target HAPcontaining materials within a chemical preparation operation will not exceed 0.03 gr/dscf have appropriately reduced recordkeeping and reporting requirements. F. What Are the Title V Permit Requirements?

This final rule exempts the chemical preparations manufacturing area source category from title V permitting requirements unless the affected source is otherwise required by law to obtain a title V permit. For example, sources that have title V permits because they are major sources under the criteria pollutant program would maintain those permits.

V. Summary of Comments and Responses

During the comment period on the proposed rule, we received eleven comment letters, which were submitted by industry, small business environmental assistance programs and environmental advocacy groups. Sections V.A. through V.H. summarize some of the more significant comments and explain our response. For comment summaries and responses not addressed in this preamble, see the response to comment document in the docket for this rule, Docket ID No. EPAHQOAR20090028.

A. Source Category Listing and Applicability

Comment. Several commenters contended that EPA did not provide the opportunity to comment on the addition of the chemical preparations source category to the area source category list and that chemical preparations should not be regulated as a source category per sections 112(c)(3) and 112(k)(3)(B)(ii) of the CAA.

Response. We listed the chemical preparations source category on November 22, 2002, under CAA section 112(c)(3) in one of a series of amendments (67 FR 70427) to the original source category list included in the 1999 Integrated Urban Air Toxics Strategy, for which there was opportunity to comment. We included this source category on the section 112(c)(3) area source category list, based upon emissions data for the 1990 baseline year, for its contribution toward meeting the CAA section 112(c)(3)'s requirement that we list sufficient categories and subcategories of sources to ensure that area sources representing 90 percent of the area source emissions of the 30 hazardous air pollutants that present the greatest threat to public health in the largest number of urban areas are subject to regulation under CAA section 112. The chemical preparations area source category was listed for its contributions toward meeting the 90 percent requirement for compounds of chromium, manganese, lead and nickel. The commenters in this case were concerned that this source category would overlap with other source categories for which they are subject. The overlap concerns are addressed in the following comment response.

Comment. Several commenters contended that the chemical preparations area source category as defined in the proposed rule overlaps with the chemical manufacturing and paint and allied products source categories and advocated that the applicability of the rule be further clarified to avoid confusion regarding which area source regulation applies to a particular operation.

Response. When the chemical preparations area source category was initially listed, it was identified as consisting of facilities covered by standard industrial classification (SIC) code 2899. We subsequently moved to the use of North American Industrial Classification System (NAICS) codes, rather than SIC codes, to identify the types of facilities included in a particular area source category. SIC codes are translated to NAICS codes using the U.S. Census Bureau's ``bridge''. The ``bridge'' correlates the fourdigit SIC code to the corresponding sixdigit NAICS code or codes. As discussed in the background information document for the proposal (See Docket EPAHQOAR2009 0028), under the ``bridge'' the 2899 SIC code translates to four separate NAICS codes (311942Spice and extract manufacturing, 325199 All other basic organic chemical manufacturing, 325510Paint and coating manufacturing, 325998All other miscellaneous chemical product and preparation manufacturing). As a result,
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at the time of proposal, we believed that it was possible for the chemical preparations source category to consist of operations that could be classified under one of these four possible North American Industrial Classification System (NAICS) codes, depending on the product or intermediate the operation was producing. In the proposed rule, we, therefore, identified all four categories as potentially containing sources subject to the chemical preparations area source rule. Based on comments we received on the proposal, however, we now recognize that the chemical preparations area source category as listed consists exclusively of sources classified by NAICS code 325998. (For a more detailed discussion of the circumstances, see the final technical support document included in the docket for this final rule.) We also realized that the NAICS code 311942, spice and extract manufacturing, is not a source of target HAP emissions, since operations conducted at facilities included in that NAICS code produce table salt and other food products. In addition, we have determined that sources in NAICS code 325999 are subject to the chemical manufacturing area source rule (40 CFR part 63, subpart VVVVVV) and that sources in NAICS code 325510 are subject to the paint and allied products area source rule (40 CFR part 63, subpart CCCCCCC). For these reasons, this final rule only applies to facilities classified by NAICS code 325998. (40 CFR 63.11579 and 63.11588.) Based on these comments, we also recognized that even within the 325998 NAICS code there was some overlap with the paint and allied products area source rule (40 CFR part 63, subpart CCCCCCC). Specifically, we recognized that sources in the 325998 NAICS code that manufacture indelible ink, India ink, writing ink, and stamp pad ink are subject to regulation under the paint and allied products area source rule. (40 CFR 63.11599) Operations at sources in the 325998 NAICS code that manufacture indelible ink, India ink, writing ink, or stamp pad ink, or any combination thereof, are, therefore, not subject to this final rule. (40 CFR 63.11579 and 63.11588.)

To facilitate these changes, the definition of ``chemical preparation'' in the final rule has been revised to read as follows:

Chemical preparation means a target HAPcontaining product, or intermediate used in the manufacture of other products, manufactured in a process operation described by the NAICS code 325998 if the operation manufactures target HAPcontaining products or intermediates other than indelible ink, India ink, writing ink, and stamp pad ink. Indelible ink, India ink, writing ink, and stamp pad ink manufacturing operations are subject to regulation by the paints and allied products area source rule (40 CFR part 63, subpart CCCCCCC).

B. Alternative Standards

Comment. Several commenters asked questions regarding whether their operations were subject to the rule and, presuming their operations were subject, expressed support for including an alternative compliance option based on a PM concentration. One commenter described an operation where liquids containing target HAP compounds were mixed in a closed tank. According to the commenter, PM matter is not emitted from this mixing operation. The commenter further stated that demonstrating 95 percent control would be difficult, since there were no discernable PM emissions from this operation.

Response. We agree with the commenter, and have added an alternative standard of 0.03 gr/dscf PM concentration to the final rule. Sources may either meet the requirement to route the process vent stream to a control device with a 95 percent PM reduction efficiency or the 0.03 gr/dscf PM concentration standard. Furthermore, sources demonstrating and providing a certification statement that each of the process vent streams from equipment that either contains, contacts, or is processing target HAPcontaining materials within a chemical preparation operation will not exceed 0.03 gr/dscf have appropriately reduced reporting, recordkeeping and inspection requirements (to ensure that the basis for the PM concentration certification does not change). C. GACT Limits

Comment. One commenter contends that, ``EPA failed to calculate any potential HAP reductions from the proposed rule, because the proposed rule will not actually lead to any reductions.'' The commenter believes that the proposed rule is `` * * * to preserve the status quo * * *'' and that the level of control currently in place is the accepted level of control.

Response. The commenter does not challenge any aspect of EPA's proposed GACT determination for this area source category. Instead, the commenter makes a blanket assertion that EPA is not acting consistently with the purposes of the area source provisions in the CAA (i.e., sections 112(c)(3) and 112(k)(3)(B)), because it is not requiring emission reductions beyond the level that is currently being achieved from this wellcontrolled source category. In support of this assertion, the commenter compares the requirements in the proposed rule to the area source category's current emission and control status. Such a comparison is flawed.

Congress promulgated the relevant CAA area source provisions in 1990 in light of the level of area source HAP emissions at that time. Congress directed EPA to identify not less than 30 HAP which, as a result of emissions from area sources, present the greatest threat to public health in the largest number of urban areas, and to list sufficient area source categories to ensure that area sources representing 90 percent of the 30 HAP listed are subject to regulation. As explained in the Integrated Urban Air Toxics Strategy, EPA based its listing decisions on the baseline National Toxics Inventory (NTI) that the Agency compiled for purposes of implementing its air toxics program after the 1990 CAA Amendments (64 FR 38706, 38711, n.10). The baseline NTI reflected HAP emissions from chemical preparations manufacturing area sources in 1990. Thus, contrary to the commenter's suggestion, the relevant emission level for comparison is the emission level reflected in our baseline NTI, not the current emission level.

Furthermore, in promulgating the area source provisions in the CAA, Congress did not require EPA to issue area source standards that must achieve a specific level of emission reduction. Rather, Congress authorized EPA to issue standards under section 112(d)(5) for area sources that reflect GACT for the source category. To qualify as being generally available, a GACT standard would most likely be an existing control technology or management practice: ``[A]n equipment standard would require neighborhood dry cleaning establishments to employ the commercially available systems associated with the lowest measured emissions * * *. S. Rep. 101128, at 171172 (emphasis added). Thus, it is both reasonable and consistent with Congressional intent that the GACTbased standards being finalized today codify the use of the existing effective PM control approach being used by sources in the category. For all of these reasons, this final rule is consistent with sections 112(c)(3), 112(k)(3)(B), and 112(d)(5).

Comment. One commenter asserted that, although section 112(d)(5) does authorize EPA to issue GACT standards in lieu of maximum achievable control
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technology (MACT) standards, the Agency's decision to do so is subject to familiar administrative law requirements. The commenter maintained that to be nonarbitrary, the decision mustat a minimumbe supported by a rational explanation. The commenter stated that EPA has provided no explanation whatsoever for its apparent decision to issue GACT standards instead of MACT standards and, for this reason alone, its decision is arbitrary and capricious.

The commenter stated that EPA's decision to issue GACT standards pursuant to CAA section 112(d)(5), instead of MACT standards pursuant to section 112(d)(2) and (3), is arbitrary and capricious because EPA provided no rationale for its decision to issue GACT standards. The commenter also claimed that the proposed standards are based solely on cost and are thus unlawful and arbitrary. The commenter claims that CAA section 112(d)(5) does not direct EPA to set standards based on what is cost effective; rather, according to the commenter EPA must establish GACT based on the ``methods, practices and techniques which are commercially available and appropriate for application by the sources in the category considering economic impacts.'' The commenter stated that, because cost effectiveness is not relevant under CAA section 112(d)(5), the reliance on cost effectiveness as the sole determining factor in establishing GACT renders the proposed standards unlawful.

Response. As the commenter recognizes, in section 112(d)(5), Congress gave EPA explicit authority to issue alternative emission standards for area sources. Specifically, section 112(d)(5), which is titled, ``Alternative standard for area sources,'' provides:

With respect only to categories and subcategories of area sources listed pursuant to subsection (c) of this section, the Administrator may, in lieu of the authorities provided in paragraph (2) and subsection (f) of this section, elect to promulgate standards or requirements applicable to sources in such categories or subcategories which provide for the use of generally available control technologies or management practices by such sources to reduce emissions of hazardous air pollutants. See CAA section 112(d)(5).

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

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

The commenter argues that EPA must provide a rationale for issuing GACT standards under section 112(d)(5), instead of MACT standards. The commenter is incorrect. Had Congress intended that EPA first conduct a MACT analysis for each area source category, Congress would have stated so expressly in section 112(d)(5). Congress did not require EPA to conduct any MACT analysis, floor analysis or beyondthefloor analysis before the Agency could issue a section 112(d)(5) standard. Rather, Congress authorized EPA to issue GACT standards for area source categories listed under section 112(c)(3), and that is precisely what EPA has done in this rulemaking.

Although EPA need not justify its exercise of discretion in choosing to issue a GACT standard for an area source listed pursuant to section 112(c)(3), EPA still must have a reasoned basis for the GACT determination for the particular area source category. The legislative history supporting section 112(d)(5) provides that GACT is to encompass:
* * * methods, practices and techniques which are commercially available and appropriate for application by the sources in the category considering economic impacts and the technical capabilities of the firms to operate and maintain the emissions control systems. See Senate Report on the 1990 Amendments to the Act (S. Rep. No. 101228, 101st Cong. 1st session. 171172). The discussion in the Senate report clearly provides that EPA may consider costs in determining what constitutes GACT for the area source category.

Congress plainly recognized that area sources differ from major sources, which is why Congress allowed EPA to consider costs in setting GACT standards for area sources under section 112(d)(5), but did not allow that consideration in setting MACT floors for major sources pursuant to section 112(d)(3). This important dichotomy between section 112(d)(3) and section 112(d)(5) provides further evidence that Congress sought to do precisely what the title of section 112(d)(5) states provide EPA the authority to issue ``[a]lternative standards for area sources.''

Notwithstanding the commenter's claim, EPA properly issued standards for the area source category at issue here under section 112(d)(5) and in doing so provided a reasoned basis for its selection of GACT for the chemical preparations area source category. As explained in the proposed rule and below, EPA evaluated the control technologies and management practices that reduce PM emissions at chemical preparations manufacturing facilities. In its evaluation, EPA used information from industry contacts and reviewed operating permits to identify the emission controls and management practices that are currently used to control PM emissions.

In our evaluation, we determined that all of the chemical preparations operations are currently controlled with either a fabric filter or wet scrubber.

The commenter further argues that EPA inappropriately chose GACT based solely on costs, and, according to the commenter, cost is not relevant to GACT determinations and as such the standards are unlawful. We disagree. Contrary to the commenter's assertions, the Agency's consideration of cost effectiveness in establishing GACT and the Agency's views on what is a cost effective requirement under section 112(d)(5) are relevant. The U.S. Court of Appeals for the DC Circuit has stated that cost effectiveness is a reasonable measure of cost as long as the statute does not mandate a specific method of determining cost. See Husqvarna AB v. EPA, 254 F.3d 195, 201 (DC Cir. 2001) (finding that EPA's decision to consider costs on a per ton of emissions removed basis is reasonable because CAA section 213 did not mandate a specific method of cost analysis).

The commenter also failed to provide any information indicating that our costeffectiveness determinations were unreasonable and, likewise, failed to provide any information concerning the
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economic impacts associated with requiring the standards that the commenter suggests represent GACT. The commenter appears to take issue with the manner in which the Agency establishes GACT but provides no alternative approach, instead only attacking the Agency's consideration of cost (i.e., costeffectiveness) as a consideration in the establishment of GACT. The Agency proposed GACT standards for the chemical preparations area source category that were established consistent with the requirements of CAA section 112(d)(5).

Finally, even though not required, EPA did provide a rationale for why it set a GACT standard in the proposed rule. In the proposal, we explained that the facilities in the chemical preparations area source category at issue here are already well controlled for the urban HAP for which the source category was listed pursuant to section 112(c)(3). See 74 FR 39018 through and 39019. Consideration of costs and economic impacts is especially important for the wellcontrolled area sources at issue in this final action. Given the current, wellcontrolled emission levels, a MACT floor determination, where costs cannot be considered, could result in only marginal reductions in emissions at very high costs for the area source category.

D. Initial Compliance

Comment. Several commenters contended that EPA proposed a very short compliance deadline for existing sourcesonly one year from issuance of the final rule. The commenters argue that the proposed one year compliance deadline is premised upon EPA's assumption, which they do not agree with, that sources will not have to install or modify air pollution control or monitoring equipment to meet the standards.

Response. We generally disagree, particularly when additional flexibilities included in the final rule are considered. The comment appears to be premised on an incorrect assumption that new control devices will need to be installed to comply with the PM emission limits. We continue to believe that additional addon controls will not be needed to comply with the final GACT standards, particularly since we revised the proposed GACT limits by providing an alternative PM concentration limit. Likewise, we have revised the proposed monitoring requirements by providing compliance alternatives for existing and new facilities. Sources may use a CPMS, a bag leak detection system or a parameter monitor alarm system that notifies the operator when the device is operating outside the manufacturer's recommended range. A bag leak detection system or parameter monitor alarm systems are significantly less complicated to install and operate than a CPMS and provide a comparable level of assurance that the source is operating in compliance with applicable requirements. Sources that already operate CPMS have the option of continuing to use their existing system to demonstrate compliance. Consequently, we believe that the proposed compliance deadline of 1 year is adequate.

E. Continuous Monitoring, Inspections and Reporting

Comment. One commenter stated that CEMS are not applicable to small chemical preparations operations.

Response. We agree with the commenter that current permit data do not support requiring CEMS for existing sources. The final rule does not contain any CEMS requirements.

Comment. Several commenters contended that the use of CPMS was uncommon at existing chemical preparations facilities, and that the costs of installing these systems were not accounted for in the proposed rule.

Response. We agree that requiring CPMS installation and operation for existing sources that do not already utilize such a system to monitor their control device's performance may not be economically feasible based upon data from the commenters. As a result, we have revised the rule so that existing and new sources can demonstrate continuous compliance through the use of any of the following: (1) A CPMS; (2) a bag leak detection system that notifies operators when a leak is detected; or (3) a parameter monitor with an audible alarm that notifies operators when a monitored control device parameter, such as pressure drop or scrubber liquid flow rate, is outside of the control device manufacturer's recommendations. Note that neither the bag leak detection system nor the parameter monitor alarm systems require a data acquisition and handling system to function properly, which, according to commenters, is the predominant portion of the cost of a CPMS.

Comment. Several commenters contended that the inspection requirements were too burdensome, arguing that the vent collection system may be difficult to access or inspect and that inspections are unnecessary because the vent collection systems are induced draft systems.

Response. We disagree that the proposed requirements are too burdensome. The required inspections are simple external visual assessments of the integrity of the collection system. This should be easily accomplished by sources. While these may be induced draft systems, we believe that they still warrant inspection. For example, an inspection can identify points along the ductwork where PM may be building up inside the duct and consequently falling out of leaks in the ductwork, indicating not only the existence of a possible leak, but that the amount of vacuum that the system was designed to induce is not being achieved. We do, however, recognize the need for inspection safety and have added provisions to the final rule that reduce inspection requirements for sections of ductwork that are deemed to be unsafe or difficult to inspect.

Comment. Several commenters contended that semiannual reporting is too burdensome for area sources and is more appropriate for major source requirements.

Response. We have revised the final rule reporting requirements so that sources must submit an annual report instead of semiannual reports if no deviations occur. If a deviation occurs, then a semi annual report must be submitted that summarizes the deviation and describes the corrective actions taken by the facility.

F. Title V Permitting

Comment. One commenter argued that the agency's proposal to exempt the chemical preparations area source category from title V requirements is unlawful and arbitrary. The commenter states that section 502(a) of the CAA authorizes EPA to exempt area source categories from title V permitting requirements if the Administrator finds that compliance with such requirements is ``impracticable, infeasible or unnecessarily burdensome.'' 42 U.S.C. section 7661a(a). The commenter notes that EPA did not claim that title V requirements are impracticable or infeasible for the chemical preparations area source category it proposes to exempt, but that EPA instead relied entirely on its claim that title V would be ``unnecessarily burdensome.''

Response. Section 502(a) of the CAA states, in relevant part, that: * * * [t]he Administrator may, in the Administrator's discretion and consistent with the applicable provisions of this chapter, promulgate regulations to exempt one or more source categories (in whole or in part) from the requirements of this subsection if the Administrator finds that compliance with such requirements is [[Page 69201]]
impracticable, infeasible, or unnecessarily burdensome on such categories, except that the Administrator may not exempt any major source from such regulations. See 42 U.S.C. section 7661a(a).

The statute plainly vests the Administrator with discretion to determine when it is appropriate to exempt nonmajor (i.e., area) sources of air pollution from the requirements of title V. The commenter correctly notes that EPA based the proposed exemptions solely on a determination that title V is ``unnecessarily burdensome,'' and did not rely on whether the requirements of title V are
``impracticable'' or ``infeasible,'' which are alternative bases for exempting area sources from title V.

To the extent the commenter is asserting that EPA must determine that all three criteria in CAA section 502 are met before an area source category can be exempted from title V, the commenter misreads the statute. The statute expressly provides that EPA may exempt an area source category from title V requirements if EPA determines that the requirements are ``impracticable, infeasible or unnecessarily burdensome.'' See CAA section 502. If Congress had wanted to require that all three criteria be met before a category could be exempted from title V, it would have stated so by using the word ``and,'' in place of ``or.'' For the reasons explained in the preamble to the proposed rule, we believe that it is appropriate to exempt sources in the chemical preparation area source category, which are not otherwise required to have a title V permit, from title V permitting and, on that basis, have retained the exemption in the final rule.

Comment. One commenter stated that in order to demonstrate that compliance with title V would be ``unnecessarily burdensome,'' EPA must show, among other things, that the ``burden'' of compliance is unnecessary. According to the commenter, by promulgating title V, Congress indicated that it viewed the burden imposed by its requirements as necessary as a general rule. The commenter maintained that the title V requirements provide many benefits that Congress viewed as necessary. Thus, in the commenter's view, EPA must show why, for any given category, special circumstances make compliance unnecessary. The commenter believed that EPA has not made that showing for the chemical preparations area source category it proposes to exempt.

Response. EPA does not agree with the commenter's characterization of the demonstration required for determining that title V is unnecessarily burdensome for an area source category. As stated above, the CAA provides the Administrator discretion to exempt an area source category from title V if he/she determines that compliance with title V requirements is ``impracticable, infeasible, or unnecessarily burdensome'' on an area source category. See CAA section 502(a). In December 2005, in a national rulemaking, EPA interpreted the term ``unnecessarily burdensome'' in CAA section 502 and developed a four factor balancing test for determining whether title V is unnecessarily burdensome for a particular area source category, such that an exemption from title V is appropriate. See 70 FR 75320, December 19, 2005 (``Exemption Rule''). In addition to interpreting the term ``unnecessarily burdensome'' and developing the four factor balancing test in the Exemption Rule, EPA applied the test to certain area source categories.

The four factors that EPA identified in the Exemption Rule for determining whether title V is unnecessarily burdensome on a particular area source category include: (1) Whether title V would result in significant improvements to the compliance requirements, including monitoring, recordkeeping, and reporting, that are proposed for an area source category (70 FR 75323); (2) whether title V permitting would impose significant burdens on the area source category and whether the burdens would be aggravated by any difficulty the sources may have in obtaining assistance from permitting agencies (70 FR 75324); (3) whether the costs of title V permitting for the area source category would be justified, taking into consideration any potential gains in compliance likely to occur for such sources (70 FR 75325); and (4) whether there are implementation and enforcement programs in place that are sufficient to assure compliance with the NESHAP for the area source category, without relying on title V permits (70 FR 75326).

In discussing the above factors in the Exemption Rule, we explained that we considered on ``a casebycase basis the extent to which one or more of the four factors supported title V exemptions for a given source category, and then we assessed whether considered together those factors demonstrated that compliance with title V requirements would be `unnecessarily burdensome' on the category, consistent with section 502(a) of the Act.'' See 70 FR 75323. Thus, we concluded that not all of the four factors must weigh in favor of exemption for EPA to determine that title V is unnecessarily burdensome for a particular area source category. Instead, the factors are to be considered in combination and EPA determines whether the factors, taken together, support an exemption from title V for a particular source category.

The commenter asserts that ``EPA must show that the ``burden'' of compliance is unnecessary.'' This is not, however, one of the four factors that we developed in the Exemption Rule in interpreting the term ``unnecessarily burdensome'' in CAA section 502, but rather a new test that the commenter maintains EPA ``must'' meet in determining what is ``unnecessarily burdensome'' under CAA section 502. EPA did not re open its interpretation of the term ``unnecessarily burdensome'' in CAA section 502 in the August 5, 2009 proposed rule for the chemical preparation area source category. Rather, we applied the four factor balancing test articulated in the Exemption Rule to this source category. Had we sought to reopen our interpretation of the term ``unnecessarily burdensome'' in CAA section 502 and modify it from what was articulated in the Exemption Rule, we would have stated so in the August 5, 2009 proposed rule and solicited comments on a revised interpretation, which we did not do. Accordingly, we reject the commenter's attempt to create a new test for determining what constitutes ``unnecessarily burdensome'' under CAA section 502, as that issue falls outside the purview of this rulemaking.

Moreover, had the comment been framed as a request to reopen our interpretation of the term ``unnecessarily burdensome'' in CAA section 502, which it was not, we would deny such request because we have a courtordered deadline to complete this rulemaking by December 16, 2009. In any event, although the commenter espouses a new
interpretation of the term ``unnecessarily burdensome'' in CAA section 502 and attempts to create a new test for determining whether the requirements of title V are ``unnecessarily burdensome'' for an area source category, the commenter does not explain why EPA's
interpretation of the term ``unnecessarily burdensome'' is arbitrary, capricious or otherwise not in accordance with law. We maintain that our interpretation of the term ``unnecessarily burdensome'' in section 502, as set forth in the Exemption Rule, is reasonable.

Comment. One commenter stated that exempting a source category from title V permitting requirements deprives both the public generally and individual members of the public who would obtain and use permitting information
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from the benefit of citizen oversight and enforcement that Congress plainly viewed as necessary. According to the commenter, the text and legislative history of the CAA provide that Congress intended ordinary citizens to be able to get emissions and compliance information about air toxics sources and to be able to use that information in enforcement actions and in public policy decisions on a State and local level.

The commenter stated that Congress did not think that enforcement by States or other government entities was enough; if it had, Congress would not have enacted the citizen suit provisions, and the legislative history of the CAA would not show that Congress viewed citizens' access to information and ability to enforce CAA requirements as highly important both as an individual right and as a crucial means to ensuring compliance. According to the commenter, if a source does not have a title V permit, it is difficult or impossibledepending on the laws, regulations and practices of the State in which the source operatesfor a member of the public to obtain relevant information about its emissions and compliance status. The commenter stated that likewise, it is difficult or impossible for citizens to bring enforcement actions.

The commenter continued that EPA does not claimfar less demonstrate with substantial evidence, as would be requiredthat citizens would have the same ability to obtain compliance and emissions information about sources in the categories it proposes to exempt without title V permits. The commenter also said that likewise, EPA does not claimfar less demonstrate with substantial evidencethat citizens would have the same enforcement ability. Thus, according to the commenter, the exemptions EPA proposes plainly eliminate benefits that Congress thought necessary. The commenter claimed that to justify its exemptions, EPA would have to show that the informational and enforcement benefits that Congress intended title V to conferbenefits which the commenter argues are eliminated by the exemptionsare for some reason unnecessary with respect to the categories it proposes to exempt.

The commenter concluded that EPA does not even acknowledge these benefits of title V, far less explain why they are unnecessary, and that, for this reason alone, EPA's proposed exemptions are unlawful and arbitrary.

Response. Once again, the commenter attempts to create a new test for determining whether the requirements of title V are ``unnecessarily burdensome'' on an area source category. Specifically, the commenter argues that EPA does not claim or demonstrate with substantial evidence that citizens would have the same access to information and the same ability to enforce under these NESHAP, absent title V. The commenter's position represents a significant revision of the fourth factor that EPA developed in the Exemption Rule in interpreting the term ``unnecessarily burdensome'' in CAA section 502. For all of the reasons explained above, the commenter's attempt to create a new test for EPA to meet in determining whether title V is ``unnecessarily burdensome'' on an area source category cannot be sustained. This rulemaking did not reopen EPA's interpretation of the term ``unnecessarily burdensome'' in CAA section 502. EPA reasonably applied the four factors to the facts of the chemical preparation area source category, and the commenter has not identified any flaw in EPA's application of the four factor test.

Moreover, as explained in the proposal, we considered implementation and enforcement issues in the fourth factor of the four factor balancing test. Specifically, the fourth factor of EPA's unnecessarily burdensome analysis provides that EPA will consider whether there are implementation and enforcement programs in place that are sufficient to assure compliance with the NESHAP without relying on title V permits. See 74 FR 39021.

In applying the fourth factor here, EPA determined that there are adequate enforcement programs in place to assure compliance with the CAA. As stated in the proposal, we believe that Statedelegated programs are sufficient to assure compliance with the NESHAP and that EPA retains authority to enforce this NESHAP under the CAA. See 74 FR 39021. We also indicated that States and EPA often conduct voluntary compliance assistance, outreach, and education programs to assist sources and that these additional programs will supplement and enhance the success of compliance with this NESHAP. See 74 FR 39021. The commenter does not challenge the conclusion that there are adequate State and Federal programs in place to ensure compliance with and enforcement of the NESHAP. Instead, the commenter provides an unsubstantiated assertion that information about compliance by the area sources with these NESHAP will not be as accessible to the public as information provided to a State pursuant to title V. In fact, the commenter does not provide any information indicating that States will treat information submitted under these NESHAP differently than information submitted pursuant to a title V permit.

Even accepting the commenter's assertions that it is more difficult for citizens to enforce the NESHAP absent a title V permit, which we dispute, in evaluating the fourth factor in EPA's balancing test, EPA concluded that there are adequate implementation and enforcement programs in place to enforce the NESHAP. The commenter has provided no information to the contrary or explained how the absence of title V actually impairs the ability of citizens to enforce the provisions of this NESHAP. Furthermore, the fourth factor is just one of the factors that we evaluated in determining if the title V requirements were unnecessarily burdensome. As explained above, we considered that factor together with the other factors and determined that it was appropriate to finalize the proposed exemption for the chemical preparation area source category.

Comment. One commenter explained that title V provides important monitoring benefits, and, according to the commenter, EPA assumes that title V monitoring would not add any monitoring requirements beyond those required by the regulations for the source category. The commenter said that in its proposal EPA proposed ``using parametric monitoring'' of either process changes or addon controls. 74 FR at 39020. The commenter further states that ``EPA argues that its proposed standard, by including these requirements, provides monitoring `sufficient to assure compliance' with the proposed rule. Id. At 39021. The commenter maintains that EPA made conclusory assertions and that the Agency failed to provide any evidence to demonstrate that the proposed monitoring requirements will assure compliance with the NESHAP for the exempt sources. The commenter stated that, for this reason as well, EPA's claim that title V requirements are ``unnecessarily burdensome'' is arbitrary and capricious, and the exemption is unlawful and arbitrary and capricious.

Response. The EPA used the four factor test to determine if title V requirements were unnecessarily burdensome for the chemical preparation area source category. In the first factor, EPA considers whether imposition of title V requirements would result in significant improvements to the compliance requirements that are proposed for the area source category. See 70 FR 75323. It is in the context of this first factor that
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EPA evaluates the monitoring, recordkeeping and reporting requirements of the proposed NESHAP to determine the extent to which those requirements are consistent with the requirements of title V.

The commenter asserts that ``EPA argues that its proposed standard, by including these requirements, provides monitoring `sufficient to assure compliance' with the proposed rule.'' EPA does in fact believe that the requirements in the proposed standard, which are carried forward in this final rule, provide monitoring ``sufficient to assure compliance.'' The commenter does not provide any evidence that contradicts this conclusion.

Based on the foregoing, we considered whether title V monitoring requirements would lead to significant improvements in the monitoring requirements in the proposed NESHAP and determined that they would not. We believe that the mon

FOR FURTHER INFORMATION CONTACT

Mr. Warren Johnson, Outreach and Information Division, Office of Air Quality Planning and Standards (C40405), Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number: (919) 5415124; fax number: (919) 5410242; email address: johnson.warren@epa.gov.