[Federal Register Volume 70, Number 244 (Wednesday, December 21, 2005)]
[Rules and Regulations]
[Pages 75924-75927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24300]
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Part V
Environmental Protection Agency
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40 CFR Part 63
National Emission Standards for Hazardous Air Pollutants: Miscellaneous
Coating Manufacturing; Final Rule
Federal Register / Vol. 70, No. 244 / Wednesday, December 21, 2005 /
Rules and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[OAR-2003-0178; FRL-8011-6]
RIN 2060-AM72
National Emission Standards for Hazardous Air Pollutants:
Miscellaneous Coating Manufacturing
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; amendments.
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SUMMARY: On May 13, 2005 (70 FR 25676), EPA issued direct final rule
amendments and a parallel proposal to provide additional compliance
options for the national emission standards for hazardous air
pollutants (NESHAP) for Miscellaneous Coating Manufacturing. One
proposed amendment specified that compliance with the weight percent
hazardous air pollutant (HAP) limit in coatings products may be
demonstrated based on formulation data. However, the proposed amendment
did not include de minimis limits for HAP in formulation data as
allowed in other surface coating NESHAP. Due to adverse comment, we
withdrew that provision of the direct final, and we are now issuing
final amendments to specify that certain raw material formulation data
as supplied to coating manufacturers may be used to demonstrate
compliance with the weight percent HAP limit.
DATES: Effective Date: December 21, 2005.
ADDRESSES: Docket ID No. OAR-2003-0178 contains supporting information
used in developing the NESHAP. All documents in the docket are listed
in the EDOCKET index at http://docket.epa.gov/edkpub/index.jsp.
Although listed in the index, some information is not publicly
available, i.e., Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
EDOCKET or in hard copy at the Air and Radiation Docket, EPA/DC, EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is (202) 566-1744, and the telephone number for the
Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Mr. Randy McDonald, Organic Chemicals
Group, Emission Standards Division (Mail Code C504-04), Office of Air
Planning and Standards, EPA, Research Triangle Park, North Carolina
27711, telephone number (919) 541-5402, electronic mail address
[email protected].
SUPPLEMENTARY INFORMATION: Regulated Entities. The regulated category
and entities affected by this action include:
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Examples of regulated
Category NAICS* entities
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Industry....................... 3255, 3259 Manufacturers of
paints, coatings,
adhesives, or inks.
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*North American Industrial Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers likely to be interested in the revisions to the rule
affected by this action. To determine whether your facility, company,
business, organization, etc., is regulated by this action, you should
carefully examine all of the applicability criteria in 40 CFR 63.7985
of the rule, as well as in today's amendment to the definitions
sections. If you have questions regarding the applicability of the
amendments to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of the final rule amendments will also be available
on the WWW through EPA's Technology Transfer Network (TTN). Following
signature by the EPA Administrator, a copy of the final rule amendments
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.
Judicial Review. Under section 307(b)(1) of the Clean Air Act
(CAA), judicial review of the final rule amendments is available only
by filing a petition for review in the U.S. Court of Appeals for the
District of Columbia by February 21, 2006. Under section 307(d)(7)(B)
of the CAA, only an objection to the final rule amendments that was
raised with reasonable specificity during the period for public comment
can be raised during judicial review. Moreover, under section 307(b)(2)
of the CAA, the requirements established by the final rule amendments
may not be challenged separately in any civil or criminal proceedings
brought by EPA to enforce these requirements.
Outline. The information presented in this preamble is organized as
follows:
I. Background
II. Response to Comments
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children for
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
I. Background
On December 11, 2003, we issued the NESHAP for miscellaneous
coating manufacturing (40 CFR part 63, subpart HHHHH). Subpart HHHHH
applies to equipment and processes involved in the manufacturing of
coatings, such as paints, inks, and adhesives.
On May 13, 2005, we issued direct final rule amendments (70 FR
25676) and a parallel proposal (70 FR 25864) to amend subpart HHHHH. We
stated in the direct final rule that if we received adverse comment by
June 13, 2005, we would publish a timely withdrawal in the Federal
Register.
We subsequently received adverse comments from two commenters on
one provision and, accordingly, withdrew paragraph (b)(4) in 40 CFR
63.8055 (70 FR 38780). The remaining provisions, for which we did not
receive any adverse comments, became effective on July 12, 2005. After
consideration of the comments, we are promulgating the final rule
amendments based on the parallel proposal published on May 13, 2005.
[[Page 75925]]
II. Response to Comments
The direct final rule amendments published on May 13, 2005,
included amendments that allow formulation data to be used as an
alternative to test data for demonstrating compliance with the 5 weight
percent HAP limit in '63.8055 of 40 CFR part 63, subpart HHHHH. The
intent was to make the compliance options for the miscellaneous coating
manufacturing NESHAP consistent with options for other surface coating
rules. For example, 40 CFR part 63, subpart MMMM, the NESHAP for
surface coating of miscellaneous metal parts and products, has a
compliant materials option that requires the owner or operator of the
surface coating operation to determine the mass fraction of organic HAP
for each coating. One method of determining this mass fraction is to
use formulation data from the supplier or manufacturer. However, unlike
the option in the other surface coating rules, the formulation data
option in the direct final rule amendments to subpart HHHHH did not
have mass cutoffs of 0.1 percent for carcinogens as defined by
Occupational Safety and Health Administration (OSHA) or 1 percent for
other HAP because subpart HHHHH does not establish cutoffs for trace
materials or impurities.
The commenters objected to this direct final rule amendments and
pointed out that the amendments did not allow for mass cutoffs reported
in Material Safety Data Sheets (MSDS), which require reporting of
quantities of materials based on limits of 0.1 percent for carcinogens
and 1 percent for other HAP; and/or other technical reports supplied by
the coating manufacturers that use these reporting quantities. These
limits account for trace constituents and impurities in materials.
These reporting limits are used when raw material and product
formulations are supplied to paint and coating manufacturers and, in
turn, supplied to their customers. One of the commenters also pointed
out that to disallow the use of these de minimis reporting levels
effectively renders the option useless because raw material data and
manufacturer formulations are not reported below these limits. Further,
without this allowance, the miscellaneous coating manufacturing NESHAP
would create an inherent inconsistency between manufacturer=s
certifications under the surface coatings NESHAP (recordkeeping and
reporting for downstream users) and potential certification
(recordkeeping and reporting) for this option under the miscellaneous
coating manufacturing NESHAP.
We appreciate the commenter's request to minimize the compliance
burden and allow exemptions for impurities and trace constituents. We
agree that the proposed rule amendment allowing formulation data should
be a practical option that reduces the compliance burden on both the
regulated industry and the permitting authorities.
We do not agree with the commenter regarding consistency between
compliance with other surface coating NESHAP and the miscellaneous
coating manufacturing NESHAP. The formats of the standards in other
surface coating rules are different than the format of the standard in
the coating manufacturing rule. Although we considered formulation data
in development of the standards for the other surface coating NESHAP,
for coating manufacturing, we only considered emissions reduction
techniques in development of standards. The 5 percent HAP limit in the
miscellaneous coating manufacturing NESHAP was intended as a pollution
prevention option that provides a level of control more stringent than
the emissions standards. Nevertheless, we have considered lessons
learned in the development of surface coating rules and, in that light,
we tried to be consistent. In the other surface coating rules, we have
not required raw material providers to perform complete analyses of
their products to quantify impurities or trace constituents, nor have
we considered any requirements that might force raw material providers
to change their raw material specifications. We understand that use of
MSDS sheets as formulation data would mean that a HAP, such as toluene
at 0.5 percent of the material by mass, may be present in the raw
material yet not be considered in the 5 percent HAP limit compliance
demonstration. However, because a limited number of trace HAP are used
in coating manufacturing and trace compounds in raw materials will only
become more dilute in the final coating, we believe formulation data
with the MSDS de minimis limits for trace compounds are adequate to
conform with the intended pollution prevention alternative and
demonstrate compliance with the 5 percent HAP limit.
We do not agree, however, that the MSDS information for a coating
product provided by the coating manufacturer is a legitimate basis for
determining compliance with the 5 percent HAP limit. A manufacturer can
estimate the HAP content of the coating by formulation data from the
raw material supplier.
Therefore, we are promulgating a final rule amendment that allows
compliance with the 5 percent HAP limit using formulation data from
suppliers, if the formulation data represent each organic HAP that is
present at 0.1 percent by mass or more for OSHA-defined carcinogens,
and at 1.0 percent by mass or more for other HAP. Only formulation data
from raw material suppliers shall be used to demonstrate compliance
with the 5 percent HAP limit.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Executive Order
defines ``significant regulatory action'' as one that is likely to
result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that the final rule amendments are not a
``significant regulatory action'' under the terms of Executive Order
12866 and are, therefore, not subject to OMB review.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
This action gives a source owner or operator the option of using vapor
balancing to comply with the standards. Since it is only an option,
this action will not increase the information collection burden. The
OMB has previously approved the information collection requirements
contained in the existing regulations under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB
control number 2060-0535 (EPA ICR No. 2115.01).
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Copies of the information collection request (ICR) document(s) may
be obtained from Susan Auby, by mail at the Office of Environmental
Information, Collection Strategies Division; U.S. EPA (2822T); 1200
Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at
[email protected], or by calling (202) 566-1672. A copy may also be
downloaded off the Internet at http://www.epa.gov/icr. Include the ICR
or OMB number in any correspondence.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal Agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
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 EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
C. Regulatory Flexibility Act
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with the direct final
rule amendments.
For purposes of assessing the impacts of today's direct final rule
amendments on small entities, a small entity is defined as: (1) A small
business in the North American Industrial Classification System (NAICS)
code 325 that has up to 500; (2) a small governmental jurisdiction that
is a government of a city, county, town, school district or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's amendments on
small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may conclude that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. The
final rule amendments will not impose any requirements on small
entities. The final rule amendments add a compliance option granting
greater flexibility to small entities subject to the final rule that
may result in a more efficient use of resources for them and,
therefore, impose no additional regulatory costs or requirements on
owners or operators of affected sources.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, the
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires the EPA to identify and consider a reasonable number of
regulatory alternatives and adopt the least-costly, most cost-
effective, or least burdensome alternative that achieves the objectives
of the rule. The provisions of section 205 do not apply when they are
inconsistent with applicable law. Moreover, section 205 allows the EPA
to adopt an alternative other than the least-costly, most cost
effective, or least-burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Before the EPA establishes any regulatory requirements
that may significantly or uniquely affect small governments, including
tribal governments, it must have developed under section 203 of the
UMRA a small government agency plan. The plan must provide for
notifying potentially affected small governments to have meaningful and
timely input in the development of EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
The EPA has determined that the final rule amendments do not
contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any 1 year. Therefore, the final
rule amendments are not subject to the requirements of sections 202 and
205 of the UMRA. In addition, the final rule amendments do not
significantly or uniquely affect small governments. The final rule
amendments provide a source owner or operator with additional options
to comply with the standards and contain no requirements that apply to
small governments. Therefore, the final rule amendments are not subject
to section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132 (64 FR 43255, August 10, 1999) requires the
EPA to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that 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.''
The final rule amendments do not have federalism implications. They
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. The final rule
amendments provide a source owner or operator with another option to
comply with the standards and, therefore, impose no additional burden
on sources. Thus, Executive Order 13132 does not apply to the final
rule amendments.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175 (65 FR 67249, November 9, 2000) requires the
EPA to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of
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regulatory policies that have tribal implications.'' The final rule
amendments do not have tribal implications, as specified in Executive
Order 13175. The final rule amendments provide a source owner or
operator with another option to comply with the standards and,
therefore, impose no additional burden on sources. Thus, Executive
Order 13175 does not apply to the final rule amendments.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant''; as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that the EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by the EPA.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the regulation. Today=s final rule
amendments are not subject to Executive Order 13045 because they are
based on technology performance, not health or safety risks.
Furthermore, the final rule amendments have been determined not to be
``economically significant'' as defined under Executive Order 12866.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
The final rule amendments are not subject to Executive Order 13211
(66 FR 28355, May 22, 2001) because they are not a significant
regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note), directs the EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs the
EPA to provide Congress, through OMB, explanations when the Agency
decides not to use available and applicable voluntary consensus
standards.
No new standard requirements are cited in the final rule
amendments. Therefore, the EPA is not proposing or adopting any
voluntary consensus standards in the final rule amendments.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing the final rule
and other required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the United States prior
to publication of the direct final rule in the Federal Register. The
final rule amendments are not a ``major rule'' as defined by 5 U.S.C.
804(2). The final rule amendments are effective on December 21, 2005.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: December 15, 2005.
Stephen L. Johnson,
Administrator.
0
For the reasons stated in the preamble, title 40, chapter I, part 63 of
the Code of the Federal Regulations is amended as follows:
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart HHHHH--[Amended]
0
2. Section 63.8055 is amended by adding paragraph (b)(4) to read as
follows:
Sec. 63.8055 How do I comply with a weight percent HAP limit in
coating products?
* * * * *
(b) * * *
(4) You may rely on formulation data from raw material suppliers if
it represents each organic HAP that is present at 0.1 percent by mass
or more for OSHA-defined carcinogens, as specified in 29 CFR
1910.1200(d)(4), and at 1.0 percent by mass or more for other
compounds. If the HAP weight percent estimated based on formulation
data conflicts with the results of a test conducted according to
paragraphs (b)(1) through (3) of this section, then there is a rebuttal
presumption that the test results are accurate unless, after
consultation, you demonstrate to the satisfaction of the permitting
authority that the test results are not accurate and that the
formulation data are more appropriate.
[FR Doc. 05-24300 Filed 12-20-05; 8:45 am]
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