FR Doc 05-24072

[Federal Register: December 19, 2005 (Volume 70, Number 242)]
[Rules and Regulations]
[Page 75319-75346]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19de05-23]

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Part III

Environmental Protection Agency

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40 CFR Parts 63, 70, and 71

Exemption of Certain Area Sources From Title V Operating Permit
Programs; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63, 70, and 71

[OAR-2004-0010; FRL-8008-5]
RIN 2060-AM31

Exemption of Certain Area Sources From Title V Operating Permit
Programs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing permanent exemptions from the title V
operating permit program for five categories of nonmajor (area) sources
that are subject to national emission standards for hazardous air
pollutants (NESHAP). The EPA is making a finding for these categories,
consistent with the Clean Air Act requirement for making such
exemptions, that compliance with title V permitting requirements is
impracticable, infeasible, or unnecessarily burdensome on the source
categories. The five source categories are dry cleaners, halogenated
solvent degreasers, chrome electroplaters, ethylene oxide (EO)
sterilizers and secondary aluminum smelters. The EPA declines to make a
finding for a sixth category, area sources subject to the NESHAP for
secondary lead smelters. A previous deferral from permitting for this
category expired on December 9, 2004, subjecting all such sources to
the title V program.

DATES: This final rule is effective on December 19, 2005.

ADDRESSES: Docket. Docket No. OAR-2004-0010, containing supporting
information used to develop the proposed and final rules, is available
for public inspection and copying between 8 a.m. and 4:30 p.m., Monday
through Friday (except government holidays) at the Air and Radiation
Docket (Air Docket) in the EPA Docket Center, (EPA/DC) EPA West
Building, Room B102, 1301 Constitution Avenue, NW., Washington, DC
20004.

FOR FURTHER INFORMATION CONTACT: Mr. Jeff Herring, U.S. EPA,
Information Transfer and Program Implementation Division, C304-04,
Research Triangle Park, North Carolina 27711, telephone number (919)
541-3195, facsimile number (919) 541-5509, or electronic mail at
herring.jeff@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

The entities affected by this rulemaking are area sources subject
to a NESHAP promulgated under section 112 of the Clean Air Act (Act)
since 1990, listed in the table below. An ``area source'' under the
NESHAP regulations is a source that is not a ``major source'' of
hazardous air pollutants (HAP). A ``major source'' under the NESHAP
regulations is ``any stationary source or group of stationary sources
located within a contiguous area and under common control that emits or
has the potential to emit considering controls, in the aggregate, 10
tons per year or more of any [HAP] or 25 tons per year or more of any
combination of [HAP] * * *'' See definitions of ``area source'' and
``major source'' at 40 CFR 63.2.
This final rule affects only whether area sources regulated by
certain NESHAP are required to obtain a title V operating permit and
whether title V permits may be issued to these and other area sources
once EPA has promulgated exemptions from title V for them. It has no
other effect on any requirements of the NESHAP regulations, nor on the
requirements of State or Federal title V operating permit programs.
The affected categories are:

------------------------------------------------------------------------
Estimated
Category NESHAP number of
sources \1\
------------------------------------------------------------------------
Perchloroethylene dry cleaning.... Part 63, Subpart M.. \2\ 28,000
Hard and decorative chromium Part 63, Subpart N.. 5,000
electroplating and chromium
anodizing.
Commercial ethylene oxide Part 63, Subpart O.. 100
sterilization.
Halogenated solvent cleaning...... Part 63, Subpart T.. 3,800
Secondary aluminum production..... Part 63, Subpart RRR 1,316
Secondary lead smelting........... Part 63, Subpart X.. 3
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B. How Can I Get Copies of This Document and Other Related Information?

1. Docket. The EPA has established an official public docket for
this action under Docket ID No. OAR-2004-0010. The official public
docket consists of the documents specifically referenced in this
action, any public comments received, and other information related to
this action. Although a part of the official docket, the public docket
does not include confidential business information (CBI) or other
information whose disclosure is restricted by statute. Documents in the
official public docket are listed in the index list in EPA's electronic
public docket and comment system, EDOCKET. Documents are available both
electronically and in hard copy. Electronic documents may be obtained
through EDOCKET. Hard copy documents may be viewed at the Air Docket in
the EPA Docket Center, (EPA/DC) EPA West Building, Room B102, 1301
Constitution Ave., NW., Washington, DC 20004. This docket facility 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. A reasonable fee may be charged for copying docket materials.
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\1\ This estimated number includes both major and area sources,
even though only area sources will be affected by this rulemaking.
Almost all dry cleaners are area sources. Also, EPA believes less
than half of EO sterilizers are area sources (see docket item 106).
For other categories listed here, EPA does not have information on
the number of area sources.
\2\ The proposal of March 25, 2005 estimated up to 30,000 dry
cleaners would be affected by this rulemaking. Based on new
information available to EPA, we now believe up to 28,000 dry
cleaners are potentially affected by this rulemaking.
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2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/ or the federal-wide eRulemaking site at http://www.regulations.gov.

An electronic version of a portion of the public docket is
available through EDOCKET at http://www.epa.gov/edocket/. To view

public comments, review the index listing of the contents of the
official public docket, and access those documents in the public docket
that are available electronically. Publicly available docket materials
that are not available electronically may be

[[Page 75321]]

viewed at the docket facility identified above. Once in the system,
select ``search,'' then key in the appropriate docket identification
number.

C. Where Can I Obtain Additional Information?

In addition to being available in the docket, an electronic copy of
today's notice is also available on the World Wide Web through the
Technology Transfer Network (TTN). Following signature by the EPA
Administrator, a copy of today's 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. If more
information regarding the TTN is needed, call the TTN HELP line at
(919) 541-5384.

D. How Is This Preamble Organized?

The information presented in this preamble is organized as follows:

I. General Information
A. Does This Action Apply to Me?
B. How Can I Get Copies of This Document and Other Related
Information?
1. Docket
2. Electronic Access
C. Where Can I Obtain Additional Information?
D. How Is This Preamble Organized?
II. Background
III. What Does Today's Action Involve?
A. What Revisions Are Being Made to Part 63?
B. What Revisions Are Being Made to Parts 70 and 71?
IV. What Are the Reasons for Title V Exemptions?
A. General Approach
B. Dry Cleaners
C. Chrome Electroplaters
D. Solvent Degreasers
E. EO Sterilizers
F. Secondary Aluminum
V. What Is EPA's Decision for Secondary Lead Smelters?
VI. May Title V Permits Be Issued To Exempt Area Sources?
VII. May General Permits Be Issued as an Alternative to Title V
Exemptions?
VIII. What Are EPA's Responses to Significant Comments?
A. Is EPA's General Approach to Exemptions Consistent With the
Act?
B. Does the First Factor Acknowledge Key Title V Requirements?
C. Does This Rulemaking Adequately Address Title V Costs?
D. What Is our Analysis of Factor Four for the Final Rule?
E. Are These Exemptions Consistent With the Legislative History
of the Act?
F. Is It Reasonable for EPA to Rely on the Information Cited in
Support of the Proposal?
G. Are Permits Necessary To Define Monitoring for Chrome
Electroplaters?
H. May Degreasers Be Exempted When There Are Multiple Applicable
Requirements?
I. Are the Compliance Requirements of the EO Sterilizer and
Secondary Aluminum NESHAP Substantially Equivalent to Title V?
J. Are the Proposed Revisions to EO Sterilizer NESHAP
Appropriate?
K. Are Title V Permits Allowed for Area Sources Exempted From
Title V?
L. Does This Rulemaking Disregard Cost Estimates for General
Permits?
IX. Effective Date of Today's Final Rule Under the Administrative
Procedure Act
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act (RFA), as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 ( SBREFA), 5
U.S.C. 601 et seq.
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Covering Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act

II. Background

Section 502(a) of the Clean Air Act (Act) sets forth the sources
required to obtain operating permits under title V. These sources
include: (1) Any affected source subject to the acid deposition
provisions of title IV of the Act; (2) any major source; (3) any source
required to have a permit under Part C or D of title I of the Act; (4)
``any other source (including an area source) subject to standards or
regulations under section 111 [new source performance standards] or 112
[NESHAP)]'' and (5) any other stationary source in a category
designated by regulations promulgated by the Administrator. See 40 CFR
70.3(a) and 71.3(a). The requirements of section 502(a) are primarily
implemented through the operating permit program rules: Part 70, which
sets out the minimum requirements for title V operating permit programs
administered by State, local, and tribal permitting authorities (57 FR
32261, July 21, 1992), and part 71, the federal operating permit
program requirements that apply where EPA or a delegate agency
authorized by EPA to carry out a Federal permit program is the title V
permitting authority (61 FR 34228, July 1, 1996). The area sources
subject to NSPS under section 111 or NESHAP under section 112
[addressed in category (4) above] are identified in Sec. Sec.
70.3(a)(2) and (3) and Sec. Sec. 71.3(a)(2) and (3) as among the
sources subject to title V permitting requirements.
Section 502(a) of the Act also provides that ``the Administrator
may, in the Administrator's discretion and consistent with the
applicable provisions of [the Clean Air Act], promulgate regulations to
exempt one or more 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 on such categories, except that the Administrator may not
exempt any major source from such requirements.''
In the part 70 final rule of July 21, 1992, EPA permanently
exempted from title V two categories of area sources that are subject
to section 111 and 112 standards established prior to the part 70 rule
(pre-1992 standards): New residential wood heaters subject to subpart
AAA of part 60 (NSPS), and asbestos demolition and renovation
operations subject to subpart M of part 61 (NESHAP). See Sec. Sec.
70.3(b)(4) and 71.3(b)(4). The EPA also allowed permitting authorities
under part 70 the option to defer permitting for other area sources
subject to pre-1992 standards, while for part 71 purposes, we simply
deferred issuing permits to them. See 57 FR 32261-32263 (July 21,
1992), and Sec. Sec. 70.3(b)(1) and 71.3(b)(1).
The post-1992 standards, including the NESHAP for area sources that
are the subject of today's final rule, previously have been addressed
in Sec. Sec. 70.3(b)(2) and 71.3(b)(2), which state that EPA will
determine whether to exempt from title V permitting any or all area
sources subject to post-1992 NSPS or NESHAP at the time each new
standard is promulgated. Subsequently, EPA issued title V exemptions
for several area sources subject to NESHAP in final rules under part
63:
All area sources within the NESHAP for publicly owned
treatment works (POTW), Subpart VVV. See Sec. 63.1592 (63 FR 64742,
October 21, 2002).
Those area sources conducting cold batch cleaning within
the NESHAP for halogenated solvent cleaning, Subpart T. See Sec.
63.468(j) (59 FR 61802, December 2, 1994).
Three types of area sources within the NESHAP for hard and
decorative chromium electroplating and chromium anodizing tanks,
Subpart T. See Sec. 63.340(e)(1) (61 FR 27785, June 3, 1996).

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The EPA has issued three post-1992 NESHAP that defer the
requirement for area sources to obtain title V permits:
Area sources subject to the NESHAP for perchloroethylene
dry cleaning, subpart M; chromium electroplating and anodizing, subpart
N; commercial ethylene oxide sterilization, subpart O; and secondary
lead smelting, subpart X. See 61 FR 27785, June 3, 1996;
Area sources subject to the NESHAP for halogenated solvent
cleaning, subpart T. See 59 FR 61801, December 2, 1994, as amended by
60 FR 29484, June 5, 1995; and
Area sources subject to the NESHAP for secondary aluminum
production, subpart RRR. See 65 FR 15690, March 23, 2000.

The first two rules established deferrals of area source permitting,
which expired on December 9, 1999. The expiration date for these
deferrals was extended to December 9, 2004 in another final rule (64 FR
69637, December 14, 1999). The third rule provided deferrals for
secondary aluminum area sources, which also expired on December 9,
2004. Thus, today's final rule addresses all six categories of area
sources subject to a post-1992 NESHAP that were subject to deferrals
from permitting that expired on December 9, 2004.
The EPA published a notice of proposed rulemaking on March 25, 2005
(70 FR 15250), where we proposed to exempt from title V five categories
of area sources subject to NESHAP: Dry cleaners, halogenated solvent
degreasers, chrome electroplaters, ethylene oxide (EO) sterilizers and
secondary aluminum smelters. As support for the proposed exemptions, we
discussed why compliance with title V appeared to be impracticable,
infeasible, or unnecessarily burdensome on the area sources, consistent
with the exemption criteria of section 502(a) of the Act. Also, we
discussed a sixth category, area sources subject to the NESHAP for
secondary lead smelters, but we did not propose to exempt them.
Today's final rule is unchanged from the proposal, except for a
revision to Sec. 63.360(f), which sets forth the title V exemption for
area sources subject to the NESHAP for EO sterilizers. The change to
the EO sterilizer rule is needed to clarify which sources under the
NESHAP are subject to today's title V exemptions, and it is discussed
further in section VIII.J of this preamble.

III. What Does Today's Action Involve?

A. What Revisions Are Being Made to Part 63?

Today's final rule exempts five categories of area sources from
title V by revising certain language in the NESHAP rules under part 63,
as we proposed on March 25, 2005 (70 FR 15250). This is achieved
through two types of changes to the NESHAP rules.
First, we have revised each of the five NESHAP to say that area
sources subject to the NESHAP are exempt from the obligation to obtain
permits under parts 70 or 71, unless the source would be required to
obtain these permits for another reason, as defined in the part 70 or
71 rules, such as when the source triggers another applicability
provision of Sec. Sec. 70.3(a) or 71.3(a). For example, if an exempt
area source increases its HAP emissions such that it becomes a major
source, the former area source will be required to get a title V permit
because it is a major source, consistent with Sec. Sec. 70.3(a)(1) and
71.3(a)(1). Consequently, when a former area source becomes a major
source, the major source permit must include all NESHAP requirements
that apply to the major source, including the requirements of the
NESHAP that formerly provided for the title V exemption.\3\ This is so
because Sec. Sec. 70.3(c)(1) and 71.3(c)(1) require permits for major
source to include ``all applicable requirements for all relevant
emissions units in the major source.'' Also, we added a second sentence
to each NESHAP to say ``notwithstanding the previous sentence,'' the
source ``must continue to comply with the provisions of this subpart
applicable to area sources.'' The purpose of this sentence is to
explain that area sources that are exempted from title V are not
exempted from any emission limitations, standards, or any other
requirements of the NESHAP.
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\3\ Note that when an area source becomes a major source,
depending on the specific requirements of the NESHAP, the emissions
standards may change from generally achievable control technology
(GACT), which may be established for area sources, to maximum
achievable control technology (MACT), which is required for major
sources, but also may be established for area sources. Also, see
Sec. 63.1(c)(5).
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Second, we have revised the table in each NESHAP that shows how the
general provisions of subpart A of part 63 apply to that particular
NESHAP, except for the dry cleaning NESHAP, which has no such table.
For sources other than dry cleaners, the ``comment'' column for the
Sec. 63.1(c)(2) entry in the tables simply states that area sources
subject to the subpart are exempt from title V permitting obligations.
We have made one change to the rule language of the proposal. In
the final rule, we have revised the regulatory language of Sec.
63.360(f), which sets forth the title V exemption for EO sterilizers.
For more discussion of the proposed regulatory language and why we are
changing it in the final rule, see section VIII.J below.
Also, we are not making any changes to the NESHAP for secondary
lead smelters, consistent with our proposal, because we are not
establishing a title V exemption for area sources subject to it. See
section V below for a more detailed explanation of our decision
regarding lead smelters.

B. What Revisions Are Being Made to Parts 70 and 71?

Today's final rule also revises parts 70 and 71, as we proposed, to
make the rules more consistent with our interpretation that State and
local agencies, tribes, and EPA (permitting authorities) may not issue
title V permits to area sources after we promulgate title V exemptions
for them. In the proposal, we explained that section 502(a) of the Act
provides that only those area sources required to get permits, and not
exempted by EPA through notice and comment rulemaking, are properly
subject to title V requirements. Also, we explained that section 506(a)
of the Act, which provides that permitting authorities ``may establish
additional permitting requirements not inconsistent with this Act,''
does not override the more specific language of section 502(a). We also
explained that section 506(a) preserves the ability for permitting
authorities to establish additional permitting requirements, such as
procedural requirements, for sources properly covered by the program,
and that section 116 of the Act allows State and other non-federal
permitting agencies (State agencies) to issue non-title V permits to
area sources that have been exempted from title V. See section VI below
for further discussion of our interpretations of the Act in this
regard.
First, we proposed to delete the ``at least'' language of Sec.
70.3(a) that has been interpreted to allow State agencies to require
permits from area sources, once we have exempted the area sources from
title V, because this language is inconsistent with section 502(a) of
the Act. No similar changes are necessary for part 71. Second, we
proposed to delete language in Sec. 70.3(b)(3) and Sec. 71.3(b)(3)
that allows exempt sources to ``opt to apply for a permit under a part
70 program,'' as it is inconsistent with section 502(a) to let exempted
area sources volunteer for a title V permit.

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Third, we proposed to delete the prefatory phrase of Sec. 70.3(b)(4),
``Unless otherwise required by the state to obtain a part 70 permit,''
because it suggests that States agencies may require title V permits
for exempted area sources, such as for residential wood heaters and
asbestos demolition and renovation, which would be inconsistent with
section 502(a) of the Act. Today's rule makes these revisions final,
unchanged from the proposal.

IV. What Are the Reasons for the Title V Exemptions?

A. General Approach

In the proposal of March 25, 2005 (70 FR 15250), we explained our
general approach to implementing the exemption criteria of section
502(a) of the Act. Section 502(a) of the Act provides, in part, that
the Administrator may ``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 impracticable, infeasible, or unnecessarily burdensome
on such categories, except that the Administrator may not exempt any
major source from such requirements.'' In addition, EPA explained that
the legislative history of Section 502(a) suggests that EPA should not
grant exemptions where doing so would adversely affect public health,
welfare, or the environment. See Chafee-Baucus Statement of Senate
Managers, Environment and Natural Resources Policy Division 1990 CAA
Leg. Hist. 905, Compiled November, 1993 (in that ``[t]he Act requires
EPA to protect the public health, welfare and the environment, * * *
this provision of the permits title prevents EPA from exempting sources
or source categories from the requirements of the permit program if
such exemptions would adversely affect public health, welfare, or the
environment'').
In developing this rulemaking, EPA sought and relied on information
from State and local agencies on the level of oversight they perform on
these area sources. They responded with information on whether they
issue permits, perform routine inspections, provide compliance
assistance, and on compliance rates for them. We also received input
from State small business ombudsmen and several trade associations
representing dry cleaning, metal finishing, solvent cleaning, and the
aluminum industry, including information on the sources and the
compliance assistance programs currently available for them. In
addition, the proposal provided a 60-day public comment period and
public citizens, non-profit organizations, State agency
representatives, and affected industry representatives responded with
comments, which are included in the docket.
In the proposal, we discussed on a case-by-case basis the extent to
which one or more of the four factors supported title V exemptions for
a given source category, and then we assessed whether considered
together those factors demonstrated that compliance with title V
requirements would be ``unnecessarily burdensome'' on the category,
consistent with section 502(a) of the Act. See 70 FR 15253, March 25,
2005.
One commenter said we should have evaluated and discussed all four
factors for each category of area sources, suggesting that we ignored
factors that did not support title V exemptions for each category of
area sources. In response, we have considered, and discuss in this
preamble, all four factors for each category of area sources for
today's final rule. See the explanation below for an overview of our
analysis of each factor. Also, see section IV.B through F for detailed
discussion of the four factors for each category of area sources,
section VIII.A for detailed EPA response to this comment, and section
VIII.D, which provides detailed EPA response to this comment, and other
comments, on proposed factor four.
The first factor discussed in the proposal is whether title V would
result in significant improvements to the compliance requirements,
including monitoring, recordkeeping, and reporting, that are already
required by the NESHAP. This preamble refers to this evaluation as
probing whether title V is ``unnecessary'' to improve compliance for
these NESHAP requirements at area sources. Thus, a finding that title V
does not result in significant improvements to compliance, as compared
to operating subject to the NESHAP without a title V permit, is
described as supporting a conclusion that title V permitting is
``unnecessary'' for area sources in that category, consistent with the
``unnecessarily burdensome'' criterion of section 502(a) of the Act.
Title V provides authority to add monitoring requirements in permits in
appropriate circumstances, and also imposes a number of monitoring,
recordkeeping and reporting requirements that are designed to enhance
compliance. We analyze below the extent to which Title V could improve
compliance for the area sources covered by today's rule.
Part 70 and 71 set forth, in three principal sections, monitoring
requirements that may be included in title V permits for area sources.
Section 70.6(a)(3)(i)(A) requires that title V permits include ``[a]ll
monitoring and analysis procedures or test methods required under
applicable monitoring and testing requirements.'' This means, for
example, that monitoring required by a NESHAP must be included in a
title V permit issued to a source covered by a NESHAP. Second, Sec.
70.6(a)(3)(i)(B) goes further, and provides that ``[w]here the
applicable requirement does not require periodic testing or
instrumental or noninstrumental monitoring (which may consist of
recordkeeping designed to serve as monitoring), periodic monitoring
sufficient to yield reliable data from the relevant time period that
are representative of the source's compliance with the permit'' may be
included in a title V permit. Importantly, however, where periodic
monitoring exists in the underlying requirement, such as a NESHAP,
permit writers are not authorized by this regulation to add additional
periodic monitoring in a permit. See Appalachian Power Co. v. EPA, 208
F.3d 1015, 1028 (D.C. Cir. 2000). Finally, Sec. 70.6(c)(1), provides
that permits must contain ``consistent with [the periodic monitoring
rule in Sec. 70.6(a)(3)], compliance certification, testing,
monitoring, reporting, and recordkeeping requirements sufficient to
assure compliance with the terms and conditions of the permit.'' \4\
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\4\ Similar provisions appear in EPA regulations in Part 71
stipulating monitoring provisions for federally-issued title V
permits.
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The EPA's interpretation of Sec. 70.6(c)(1) has evolved over time.
In November and December 2000, EPA partially granted two petitions for
objections to State-issued part 70 permits. See In the Matter of
Pacificorp, Petition No. VIII-00-1 (November 16, 2000); In the Matter
of Fort James Camas Mill, Petition No. X-19999-1 (December 22, 2000).
In both decisions, EPA held that Sec. 70.6(c)(1) empowers State
permitting authorities to review, on a case-by-case basis, the
sufficiency of each permittee's monitoring requirements, independent of
the authority provided by the periodic monitoring rule. On September
17, 2002, EPA published a proposed rule that would have codified this
interpretation of Sec. 70.6(c)(1). See 67 FR 58561. After considering
comments, however, EPA issued a final rule (the ``umbrella monitoring
rule'') providing that Sec. 70.6(c)(1) does not allow permit writers
to add monitoring requirements beyond those that are authorized by the
periodic monitoring rule. See 69 FR

[[Page 75324]]

3202, 3204 (January 22, 2004). This rule was the subject of litigation
in the United States Court of Appeals for the District of Columbia
Circuit (DC Circuit), and the Court recently vacated and remanded the
rule on the basis that EPA failed to provide adequate notice in its
proposal of the option that it adopted in its final rule. See
Environmental Integrity Project v. EPA, 205 U.S. App. LEXIS 21930 (D.C.
Cir. 2005).
In EPA's March 25, 2005 proposal to exempt five categories of area
sources from title V requirements, EPA explained that ``under the
umbrella monitoring rule and the periodic monitoring rule, title V
permits would not typically add any new monitoring requirements for
post-1992 NESHAP, including the NESHAP addressed in today's proposal.''
See 70 FR 15254. The recent decision in Environmental Integrity Project
vacating the umbrella monitoring rule does not change our view that
subjecting these area sources to title V will not likely lead to
monitoring beyond that required by the underlying NESHAP. All of the
NESHAP were issued after the 1990 amendments to the Act, and were
therefore designed to meet all of the Act's current monitoring
requirements. Interested parties that believed those regulations failed
to provide for sufficient monitoring had an opportunity to comment on
the proposed NESHAP and to challenge EPA's rulemaking decisions in
court. Any such opportunity has now passed. Thus, even if Sec.
70.6(c)(1) is interpreted to allow ``sufficiency'' monitoring
independent of the authority that exists through the periodic
monitoring rule, EPA is confident that no such additional monitoring
would appropriately be added in title V permits issued to the five
categories of area sources we exempt from title V today.\5\ Therefore,
the monitoring component of the first factor favors title V exemptions
for all of the categories of sources for which exemptions are provided
in this rule, because title V is ``unnecessary'' to provide adequate
monitoring for them. Also, see EPA response to comment that title V
permits are needed to define monitoring for electroplaters, in section
VIII.G.
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\5\ It has been EPA's consistent position that post-1990 NESHAP
include all monitoring required under the Act. See, e.g., the
preamble to EPA's compliance assurance monitoring rule, 64 FR 54940
(October 22, 1997) and EPA's advance notice of proposed rulemaking
soliciting comments on Clean Air Act requirements that may include
inadequate monitoring requirements, 70 FR 7905 (February 16, 2005)
(specifically not soliciting comment on standards promulgated after
1990 because they contain adequate monitoring under the Act).
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As part of the first factor, we have also considered the extent to
which title V could potentially enhance compliance for area sources
covered by today's rule through recordkeeping or reporting
requirements, including requirements for a six-month monitoring report,
deviation reports, and an annual compliance certification. See
Sec. Sec. 70.6(a)(3) and 71.6(a)(3), Sec. Sec. 70.6(c)(1) and
71.6(c)(1), and Sec. Sec. 70.6(c)(5) and 71.6(c)(5). In the proposal,
we stated that the recordkeeping and reporting requirements of the
NESHAP for electroplaters, EO sterilizers, and secondary aluminum
smelters are substantially equivalent to those of title V. After
considering comments received on the proposal, we continue to believe
the compliance requirements for these NESHAP are substantially
equivalent to those of title V. Also, see EPA response to comments on
issues related to factor one, including section VIII.I, concerning
comment that the compliance requirements for EO sterilizers and
secondary aluminum are not substantially equivalent to those of title
V.
In the proposal, we did not discuss recordkeeping and reporting in
the context of factor one for dry cleaners or degreasers, but we do so
in today's final rule in response to comment. As mentioned above, these
NESHAP have monitoring requirements consistent with the title V
monitoring requirements. However, they do not contain reporting
requirements that are identical to the title V requirements for
deviation reports, six-month monitoring reports, and annual compliance
certification. [See Sec. Sec. 70.6(a)(3)(iii) and 71.6(a)(3)(iii).]
The NESHAP for dry cleaners requires a log to be keep on-site to
document the dates that weekly leak detection and repair activities are
conducted, the results of weekly monitoring of temperature and
perchloroethylene concentrations, and a rolling monthly calculation of
annual perchlorethylene consumption. It does not require a 6-month
monitoring report, ``prompt'' deviation reports, or annual compliance
certification, directly comparable to the compliance requirements of
Sec. 70.6(a)(3)(iii)(A) and (B), and Sec. 70.6(c)(5).
The NESHAP for degreasers requires exceedances of monitoring
parameters to be reported at least semiannually and it requires an
annual compliance report, which for most sources, is composed of a
statement that operators have been trained on operation of cleaning
machines and their control devices and an estimate of solvent
consumption on an annual basis, but it does not require a 6-month
monitoring report, ``prompt'' deviation reports, or annual compliance
certification, directly comparable to the requirements of Sec.
70.6(a)(3)(iii)(A) and (B), and Sec. 70.6(c)(5).
Although the reporting requirements of these two NESHAP are not
directly comparable to those of title V, this does not mean that the
reporting requirements of these two NESHAP are inadequate to achieve
compliance on their own. Indeed, in issuing the NESHAP for these
sources, EPA determined that the recordkeeping and reporting
requirements contained therein were adequate, and EPA continues to
believe that this is the case. The EPA acknowledges these additional
title V reporting measures may provide some marginal compliance
benefits. However, EPA believes that they would not be significant.
Because the monitoring required by the two NESHAP is consistent with
the monitoring requirements of title V, and because each NESHAP has
adequate recordkeeping and reporting requirements tailored to the
NESHAP, we conclude that the first factor supports a title V exemption
for these sources. [See additional explanation for dry cleaners and
degreasers in sections IV.B and D below.]
The second factor considered in determining whether title V is
``unnecessarily burdensome'' for these categories is whether title V
permitting would impose significant burdens on these area sources and
whether these burdens would be aggravated by difficulty they may have
in obtaining assistance from permitting agencies. We used this factor
to assess whether title V satisfies the ``burdensome'' component of the
``unnecessarily burdensome'' criterion of section 502(a) of the Act. We
discussed this factor in the proposal as supporting our exemption
findings for dry cleaners, chrome electroplaters, solvent degreasers,
and secondary aluminum smelters, but we did not specifically discuss it
with respect to EO sterilizers. However, in the proposal, we stated a
belief that title V burdens and costs would be significant for all five
categories of area sources, and this statement included EO sterilizers.
See discussion of the second factor in the proposal, 70 FR 15254.
To help us assess factor two, we collected information on the
burdens and costs of title V and economic data for the area sources,
and we placed this information in the docket prior to our proposal. See
economic information for the five industry groups (docket item 04), and
information on burdens and costs of title V in the information

[[Page 75325]]

collection requests (ICRs) for part 70 and 71 (docket items 80 and 81).
Note that the economic information is for the broad industry group,
which includes both area sources and major sources under title V.
However, despite this, certain assumptions about their economic
characteristics are possible because almost all of them are small
businesses with limited resources. For example, many dry cleaners are
small ``mom-and-pop'' retail establishments, which will have greater
difficulty in meeting regulatory demands than large corporations with
trained environmental staffs and greater resources. The ICRs for part
70 and 71 describe title V burdens and costs in the aggregate, they are
not designed for use in estimating title V burdens and costs for any
particular sources. The ICRs do not include specific estimates of
burdens and costs for area sources because area sources were subject to
title V deferrals at the time the ICRs were approved. However, the ICRs
describe in detail various activities undertaken at title V sources,
including activities for major sources with standard permits, and
certain activities for major sources with general permits, and area
sources may be issued either standard or general permits, so many of
the same burdens and costs described in the ICRs will also apply to
these area sources. See general permit rules, Sec. Sec. 70.6(d) and
71.6(d). In the proposal, we included a list of source activities
associated with part 70 and 71 that impose title V burdens and costs,
whether the source has a standard or general permit, and we described
how permits for area sources may have a somewhat reduced scope, based
on Sec. Sec. 70.3(c)(2) and 71.3(c)(2), compared to major source
permits. Despite the potential for reduction of burdens for area
sources, we proposed finding that the burdens and costs of title V
would be significant for these area sources, similar to those for major
sources. Thus, we proposed finding that V is ``burdensome'' for these
area sources, consistent with the ``unnecessarily burdensome''
criterion of section 502(a) of the Act.
Our review of comments and further consideration of these issues
has not led us to a different view for all categories of area sources.
For EO sterilizers, as in the proposal, EPA has no reliable information
on the economic resources of area sources but, as described below,
believes that a number of area sources are small businesses with
limited economic resources. See section IV.E. Given the lack of
specific economic information for EO sterilizers, EPA is not making a
specific finding as to whether factor two supports an exemption for
this source category. Thus, we find today that factor two supports
title V exemptions for all categories of area sources, except for EO
sterilizers, where other factors support the exemption. See 70 FR
15258-15259 for more on the burdens of general permitting for area
sources. Also, see sections VII and VIII.K below for more on our
alternative proposal to require general permits for area sources in
lieu of exempting them, section VIII.C below for more on title V cost
estimates for area sources, and section VIII.L below for more on title
V costs estimates for sources with general permits.
EPA's general belief, stated in the proposal, that title V burdens
and costs would be significant for EO sterilizers was not based on any
particular study or docket support, but instead on a general assessment
of the types of smaller establishments likely to meet the ``area
source'' definition of part 63 and conduct EO sterilization activities,
e.g., small contract sterilization businesses, conducting off-site
sterilization services for manufacturers of medical equipment and
supplies, pharmaceuticals, spices, and cosmetics. See docket items 88
and 106.
In response to the comment that we should consider all four factors
in evaluating each category of area sources for exemptions, we note
that the docket does not contain reliable information on the economic
resources of area sources in this category, but EPA reaffirms the
general belief that there are area sources in the EO sterilizer
category that would be small businesses or other small establishments
with limited economic resources. Nevertheless, because specific
information on the economic resources of EO sterilizers is lacking, EPA
is basing its decision to exempt this category from title V on its
assessment of the other three factors and additional rationale noted in
its evaluation of the legislative history of title V. [See section
IV.D.] Also, see section VIII.A for more detailed EPA response to the
comment that we should consider all four factors in evaluating each
category of area sources for exemptions.
The third factor, which is closely related to the second factor, is
whether the costs of title V permitting for these area sources would be
justified, taking into consideration any potential gains in compliance
likely to occur for such sources. We discussed factor three in the
proposal as supporting our exemption findings for dry cleaners, but we
did not discuss it with respect to the other four categories of area
sources we proposed for title V exemption. See more discussion on
factor three in the proposal, including a detailed listing of many of
the mandatory activities imposed by title V for area sources, 70 FR
15254. As described above in the context of our discussion of factor
two, we find that costs of title V are significant for all categories
except for EO sterilizer, where sufficient economic data are lacking
for such a finding. Nevertheless, the types of enterprises within the
EO sterilizer category are strongly suggestive that title V would be an
economic burden for some, if not all, of the area sources. Also,
through factor one and/or revised factor four for each category of area
sources in the proposal, both of which examine the ability of title V
permits to improve compliance over that required by the NESHAP, we
established that title V is ``unnecessary'' for NESHAP compliance.
Although there may be some compliance benefits from title V for some
area sources, we believe they will be small, and not justified by title
V costs and burdens for them.
Accordingly, for all categories of area sources we exempt today, we
conclude that title V costs are not justified considering the potential
for gains in compliance from title V, and thus, factor three supports
title V exemptions for all five categories of area sources, consistent
with section 502(a) of the Act. See economic data for all industry
groups, docket item 04, and information on title V burdens and costs,
docket items 80 and 81. See section VIII.A for more detailed EPA
response to the comment that we should consider all four factors in
evaluating each category of area sources for exemptions.
The fourth factor considered in the proposal is whether oversight,
outreach, and compliance assistance programs by the EPA, or a delegate
State or local agency, primarily responsible for implementing and
enforcing the NESHAP, could achieve high compliance with particular
NESHAP, without relying on title V permitting. We used this factor to
help examine whether title V is ``unnecessary'' for NESHAP compliance
for these area sources. See the discussion of factor four in the
proposal, 70 FR 15254, March 25, 2005. We discussed this factor as
supporting our exemption findings of the proposal for dry cleaners,
solvent degreasers and EO sterilizers, but we did not discuss it for
electroplaters and secondary aluminum.
To help us assess this factor we collected information from State
and local air pollution control agencies (State agencies), summarized
in the ``State survey'' which we placed in the docket for this
rulemaking (docket item

[[Page 75326]]

02). The State survey shows that many State agencies have compliance
oversight programs that result in high compliance for the dry cleaners,
solvent degreasers and EO sterilizers, and that high compliance for
them does not necessarily depend on title V. This point was repeated by
State and local agencies who submitted comments on the proposal, all of
which are in support of the proposed exemptions for the five categories
of area sources, see docket items, 11, 16, 59, 61, and 65.
One commenter opined that factor four is inconsistent with
Congressional intent concerning the ``unnecessarily burdensome''
criterion of section 502(a) of the Act, because it examines the future
possibility that a State might adopt alternatives to title V that are
sufficient to achieve compliance with the NESHAP, without title V,
rather than examining whether actual programs are in place to achieve
compliance with the NESHAP, without title V permits. In response, we
have revised factor four in the final rule, and we have analyzed all
five categories of area sources based on the revised factor. Revised
factor four is whether there are implementation and enforcement
programs in place that are sufficient to assure compliance with the
NESHAP for area sources, without relying on title V permits. As further
described in section VIII.D below, there are implementation and
enforcement programs in place sufficient to assure compliance with the
NESHAP for all five categories of area sources addressed in today's
final rule, in all parts of the nation, without title V permits. These
programs take several forms, including programs of implementation and
enforcement conducted by EPA under the statutory authority of sections
112, 113, and 114, and State delegation of this responsibility under
section 112(l) of the Act, implemented through subpart E of part 63.
Second, section 507 of the Act requires a small business assistance
program (SBAP) for each State and for EPA, and these programs are in
place, and they may be used to assist area sources subject to NESHAP
that have been exempted from title V permitting. Third, States and EPA
often conduct voluntary compliance assistance, outreach, and education
programs (compliance assistance programs), which are not required by
statute. The statutory requirements for implementation and enforcement
of NESHAP in section 112 apply to NESHAP that regulate all sources,
including area sources. Thus factor four is satisfied for each of these
categories of area sources by the statutory requirements alone.
However, additional voluntary programs conducted by State and local
agencies supplement the mandated programs and enhance the success of
the programs.
We used the compliance rate information in the State survey as a
check on our assumption that the statutory programs for implementation
and enforcement of NESHAP, together with other efforts by State
agencies would result in adequate compliance for these sources, without
relying on title V permits. The State survey lists various State
oversight programs, without indicating whether they are conducted
voluntarily or under statutory authority. Also, the compliance rate
information in the survey suggests that adequate compliance is being
achieved in practice for all of these categories of area sources (with
more than half of the agencies that responded reported high compliance
for each category). [See the State survey, docket item 02.]
However, for secondary aluminum, fewer State and local agencies
responded with examples of compliance oversight programs and
information on compliance rates, compared to other categories. We
believe these data are explained by the timing of the State survey
relative to the effective date of the secondary aluminum standard,
rather than suggesting any deficiencies in State implementation and
enforcement for the NESHAP. The earliest date that compliance with the
secondary aluminum NESHAP was required for sources was about the same
time as the data collection phase of the State survey, and thus, State
and local agencies did not have much experience with compliance
oversight for them, or much compliance data upon which to base their
survey responses for secondary aluminum. The secondary aluminum NESHAP
did not require sources to be in compliance until March 24, 2003 (all
other NESHAP were effective much earlier than this), while the majority
of State and local input for the State survey occurred from March to
June of 2003. [See the final rule for secondary aluminum, 65 FR 15690,
March 23, 2000, docket item 77, and documentation of the data
collection phase of the State survey, docket items 93 and 94.] We
believe that State agencies are implementing this NESHAP in the same
manner as others and, based on that belief, the statutory program, and
the information in the State survey, we conclude that factor four
supports title V exemptions for area sources subject to the secondary
aluminum NESHAP.
The analysis of factor four we performed for the final rule
continues to support title V exemptions for dry cleaners, degreasers,
and EO sterilizers, as we proposed, and it additionally supports
exemptions for electroplaters and secondary aluminum smelters. Thus,
for the final rule, factor four helps to demonstrate that title V is
``unnecessary'' for NESHAP compliance, consistent with the
``unnecessarily burdensome'' criterion of section 502(a) for all area
sources we exempt today. Also, see section VIII.A for more detailed EPA
response to the comment that we should consider all four factors in
evaluating each category of area sources for exemptions, and section
VIII.D for additional EPA responses to comments on proposed factor
four.
In the proposal, we stated our belief that exempting these five
categories of area sources from title V permitting would not adversely
affect public health, welfare, or the environment, consistent with the
legislative history of section 502(a). The reasons EPA explained in the
proposal were the factors supporting exemptions discussed above and two
other reasons: (1) That placing all requirements for these sources in
permits would do little to help improve their compliance with the
NESHAP, because of the simplicity of the sources and the NESHAP, and
the fact that these sources are not typically subject to more than one
NESHAP, and few other requirements under the Act, and (2) because
requiring permits for them could, at least in the first few years of
implementation, potentially adversely affect public health, welfare, or
the environment by shifting State agency resources away from assuring
compliance for major sources with existing permits to issuing new
permits for these area sources, potentially reducing overall air
program effectiveness. For the final rule, we continue to believe that
title V exemptions for these five categories of area sources will not
adversely affect public health, welfare, or the environment for the
same reasons discussed in the proposal. See the proposal, 70 FR 15254-
15255, and EPA response to comments on this issue in section VIII.E
below.
In conclusion, the four factors and other rationale of the final
rule are appropriate to analyze whether title V permitting is
``unnecessarily burdensome'' for these five categories of area sources,
and we finalize title V exemptions for them based on our analyses of
these four factors and other rationale. The clarification of the
factors we did not discuss in the proposal, including the revision of
factor four, contained in today's final rule, does not change our view,
as stated in the

[[Page 75327]]

proposal, that title V is ``unnecessarily burdensome'' for the five
categories of area sources we exempt today. Thus, for these reasons we
are exempting from title V area sources subject to the part 63 NESHAP
for dry cleaners, halogenated solvent degreasers, chrome
electroplaters, EO sterilizers and secondary aluminum smelters. See
sections IV.B through F, below for more detail on our analysis of the
four factors for each category of area sources we exempt today.

B. Dry Cleaners

In the proposal, we described how factors two, three, and four
support title V exemptions for area sources subject to the NESHAP for
perchlorethylene dry cleaners, subpart M. We did not discuss factor one
for dry cleaners, other than to note that title V would not result in
additional monitoring for these sources, but we do so today below in
response to comment. See the general discussion of monitoring and the
specific discussion of dry cleaners in the proposal, 70 FR 15254-15256,
March 25, 2005.
First, in the proposal, we explained that title V burdens and costs
are significant for dry cleaners (factor two), and thus title V will be
``burdensome'' for them. Dry cleaners are typically small ``mom and
pop'' retail establishments employing only five people on average, with
extremely limited technical and economic resources, and low profit
margins, and title V costs would represent an excessively high
percentage of sales for them. See the economic profile for dry
cleaners, docket item 04. In addition, concerning factor two, the
burdens of title V for dry cleaners would not likely be mitigated by
assistance from permitting authorities because the authorities would
likely not be able to meet the high demand caused by title V permitting
for up to 28,000 dry cleaners nationally. Thus, we believe title V
costs are significant for dry cleaners, and that title V is
``burdensome'' for them, because most are small businesses with limited
resources, that would be subject to numerous mandatory source
activities under part 70 or 71 that would represent significant costs
to them in light of their resources, whether they have standard or
general permits.
Second, as described in the proposal, factor four, whether adequate
oversight by State agencies could achieve high compliance with NESHAP,
without relying on title V permits, supports a conclusion that title V
will be ``unnecessary'' for NESHAP compliance, and thus, that title V
exemptions are appropriate for dry cleaners. However, in response to
comments, we have revised factor four (explained below), and revised
factor four continues to support the conclusion that title V is
``unnecessary'' for compliance with the NESHAP for dry cleaners.
Revised factor four is whether there are implementation and enforcement
programs in place that are sufficient to assure compliance with the
NESHAP for area sources, without relying on title V permits. As further
described in section VIII.D below, there are implementation and
enforcement programs in place sufficient to assure compliance with the
dry cleaning NESHAP, without title V, in all parts of the nation. Also,
the State survey (docket item 02) shows that most States and local
agencies report that they conduct State permitting programs, programs
of routine inspection, and provide different types of compliance
assistance tools to help assure compliance with the NESHAP, often in
combination, and that more than half of the agencies that reported
compliance rate information reported high compliance for dry cleaners
Also, many State and local agencies reported to us that compliance with
the dry cleaning NESHAP can best be achieved through compliance
assistance efforts, such as compliance outreach and education programs,
and compliance tools, including such tools as calendars designed to
schedule NESHAP compliance activities, and inspection checklists for
the NESHAP, rather than by using title V permits. See State and local
input on compliance assistance programs for area sources, including dry
cleaners (docket items 02, 03, 06, and 08); an example of a compliance
calendar for dry cleaners (docket item 90), and an inspection checklist
for dry cleaners (docket item 95); and State and local agency comments
in support of the proposed exemptions (docket items 11, 16, 59, 61, and
65). The EPA agrees with those commenters who stated that non-title V
compliance approaches are more likely to be successful for implementing
the dry cleaning NESHAP. Also, see section VIII.D below for more on our
decision to revise factor four.
Third, in the proposal, we explained that the costs of title V for
dry cleaners are not justified taking into consideration the potential
gains in compliance likely to occur from title V (the third factor).
Consistent with the explanation above of factor two for dry cleaners,
title V costs will be significant for them. Also, consistent with
revised factor four for dry cleaners, title V is ``unnecessary'' for
NESHAP compliance for them, so it follows that the potential for gains
in compliance is low. Thus, for dry cleaners, title V costs are high
and the potential for compliance gains from title V are low. Although
there may be some compliance benefits from title V for dry cleaners
(discussed below), we believe they will be small, and not justified by
title V costs and burdens for them. Accordingly, for dry cleaners, we
conclude that title V costs are not justified taking into consideration
the potential for gains in compliance from title V.
In addition, as we explained in the proposal, the large number of
dry cleaners that are area sources (up to 28,000 nationally) makes it
likely that permitting them would strain the resources of State
agencies, potentially reducing overall air program effectiveness, and
thus, potentially adversely affecting public health, welfare, or the
environment.
With respect to factor one for dry cleaners, we explained in the
proposal that title V would not result in additional monitoring for
these sources, and we have reaffirmed this conclusion today. See
section IV.A. We did not discuss the recordkeeping and reporting
component of factor one in the proposal, but we do so here in response
to comment. As discussed in section IV.A, the dry cleaning NESHAP does
not contain reporting requirements that are directly comparable to the
title V requirements for deviation reports, six-month monitoring
reports, and annual compliance certification. [See Sec. Sec.
70.6(a)(3)(iii) and 71.6(a)(3)(iii).] However, this does not mean that
the reporting requirements of the NESHAP are inadequate to achieve
compliance on their own. Indeed, in issuing the NESHAP for these
sources, EPA determined that the recordkeeping and reporting
requirements contained therein were adequate, and EPA continues to
believe that this is the case. [See 58 FR 49354, September 22, 1993.]
We acknowledge that the additional reporting requirements that would be
provided through title V may have some marginal compliance benefits,
however, we believe they would not be significant. Because the
monitoring required by the NESHAP is consistent with the monitoring
requirements of title V, and because the NESHAP itself has adequate
recordkeeping and reporting requirements tailored to the NESHAP, we
conclude that factor one supports an exemption for dry cleaners. Also
for dry cleaners, factor four (described above) independently supports
that title V is ``unnecessary'' for NESHAP compliance. Consequently,
our view of the appropriateness of a title V exemption for dry cleaners
is unaffected by our expanded analysis of

[[Page 75328]]

factor one for them, and we exempt them in today's final rule.
Thus, factors one, two, three, and revised factor four, support the
exemption findings of the proposal, and EPA concludes that title V
exemptions are appropriate for area sources subject to the NESHAP for
dry cleaners, consistent with the ``unnecessarily burdensome''
criterion of section 502(a) of the Act.

C. Chrome Electroplaters

In the proposal we described how factors one and two support title
V exemptions for area sources subject to the NESHAP for hard and
decorative chrome electroplating and chromic acid anodizing
(electroplaters), subpart N. We did not discuss factors three and four
for electroplaters in the proposal, but we do so below in response to
comment. See the discussion of electroplaters in the proposal, 70 FR
15256, March 25, 2005.
First, in the proposal, we stated that title V would impose
significant burdens (including costs) for electroplaters (the second
factor), and thus, title V will be ``burdensome'' for them. We based
this view on our review of economic information (docket item 04), and
information on title V burdens and costs (docket items 80 and 81).
After viewing the comments received, and upon further consideration we
continue to believe that title V burdens and costs are significant for
electroplaters that are area sources because most are small businesses
with limited resources, that would be subject to numerous mandatory
activities under parts 70 or 71, that would impose significant costs in
lights of their resources, whether they had a general or standard
permit. Also, see discussion of the second factor in section IV.A
above.
Second, in the proposal, we explained that the compliance
requirements of title V and the NESHAP for electroplaters are
substantially equivalent, so title V will not result in any new
significant compliance requirements over those already required by the
NESHAP (the first factor), and thus, title V will be ``unnecessary''
for NESHAP compliance. We reaffirm this finding today with respect to
monitoring, in section IV.A. See section VIII.B for response to a
comment that the interpretation of title V's monitoring requirements in
the proposal was flawed, and section VIII.G below for EPA response to a
comment that title V permits are needed to define monitoring
requirements for electroplaters. With respect to recordkeeping and
reporting, the electroplating NESHAP requires area sources to submit
on-going compliance status reports, including a description of the
NESHAP emission limitations or work practice standards, the operating
parameters monitored to show compliance, information about the results
of monitoring, including about excess emissions and exceedances of
monitoring parameters, and a certification by a responsible official
that work practices are followed. This report is required on an annual
or six-month basis, depending on the frequency of periods of excess
emissions. These reports result in information that is substantially
equivalent with respect to assuring compliance as that required in six-
month monitoring reports, deviation reports, and annual compliance
certification reports under title V.
In the proposal, we did not discuss factor three, whether title V
costs are justified, for electroplaters, taking into consideration any
potential gains in compliance likely to occur through title V, but our
analysis of factor three for the final rule is that it supports title V
exemptions for them. Consistent with the explanation above of factor
two, title V costs are significant for electroplaters. Also, for
electroplaters, consistent with factors one (discussed above) and
revised factor four (discussed below), both of which examine the
ability of title V permits to improve compliance over that required by
the NESHAP, title V is ``unnecessary'' for NESHAP compliance, so it
follows that the potential for gains in compliance from title V will be
low. Thus, for electroplaters, title V costs are high and the potential
for gains in compliance from title V is low. Although there may be some
compliance benefits from title V for electroplaters, we believe they
will be small, and not justified by title V costs and burdens for them.
Accordingly, for electroplaters, we conclude that title V costs are not
justified considering the potential for gains in compliance from title
V.
Also, in the proposal, we did not discuss factor four, whether
adequate oversight by State agencies could achieve high compliance with
NESHAP, without relying on title V permits, for electroplaters. In
response to comments, we have revised factor four, and revised factor
four supports the title V exemption findings of the proposal for
electroplaters. Revised factor four is whether there are implementation
and enforcement programs in place that are sufficient to assure
compliance with the NESHAP for area sources, without relying on title V
permits. As further described in section VIII.D below, there are
implementation and enforcement programs in place sufficient to assure
compliance with the electroplating NESHAP, in all part of the nation,
without title V. Also, the State survey (docket item 02) shows that
most States and local agencies report that they conduct State
permitting programs, programs of routine inspection, and provide
different types of compliance assistance tools to help assure
compliance with the electroplating NESHAP, often in combination, and
that more than half of the agencies that reported compliance rate
information reported high compliance for electroplaters. Also, many
State and local agencies reported to us that compliance with the NESHAP
for area sources, including for the electroplating NESHAP, can best be
achieved through compliance assistance efforts, such as compliance
outreach and education programs, and compliance tools, rather than by
using title V permits. See State and local input on compliance
assistance programs for area sources (docket items 02, 03, 06 and 08);
and State and local agency comments on the proposal, all of which are
in support of the proposed title V exemptions for the five categories
of area sources (docket Items, 11, 16, 59, 61, and 65). Also, see
section VIII.D below for EPA response to comments on factor four.
Thus, factors one, two, three, and revised factor four, support the
exemption findings of the proposal, and consequently, title V
exemptions are appropriate for area sources subject to the NESHAP for
electroplating, consistent with the ``unnecessarily burdensome''
criterion of section 502(a) of the Act.

D. Solvent Degreasers

In the proposal, we discussed how factors two and four support
title V exemptions for area sources subject to the NESHAP for
halogenated solvent degreasing, subpart T. With respect to factor one,
we explained that title V would not result in additional monitoring for
these sources, and we have reaffirmed this conclusion today. See
Section IV.A. We did not discuss the recordkeeping and reporting
component of factor one or factor three for degreasers, but we do so
below in response to comment. See the discussion of degreasers in the
proposal, 70 FR 15256-15257, March 25, 2005.
First, in the proposal, we explained that requiring title V permits
would impose a significant burden on degreasers that they will have
difficulty meeting with current resources (factor two), and thus, title
V will be ``burdensome'' for them. Area source degreasers are typically
small operations

[[Page 75329]]

employing only a few people, with limited technical and economic
resources, and little experience in environmental regulations. Also,
unlike the larger major sources, area source degreasing operations
typically have no staff trained in environmental requirements and are
generally unable to afford to hire outside professionals to assist them
with understanding and meeting the permitting requirements. See the
economic profile for degreasers, docket item 04. We received comment
supporting this view (see docket item 31), and now we conclude that
degreasers are small businesses with limited resources, subject to
numerous mandatory activities under parts 70 or 71, that will be
burdensome for them to meet, whether they have a general or standard
permit; and that this means title V is ``burdensome'' for them. Also,
see discussion of the second factor in section IV.A above.
Second, in the proposal, we explained that factor four, whether
adequate oversight by State agencies could achieve high compliance with
NESHAP, without relying on title V permits, supports title V exemptions
for degreasers. In response to comments, we have revised factor four
and revised factor four is whether there are implementation and
enforcement programs in place that are sufficient to assure compliance
with the solvent degreasing NESHAP for area sources, without relying on
title V permits. The EPA concludes that there are implementation and
enforcement programs in place sufficient to assure compliance with the
degreasing NESHAP, in all parts of the nation, without title V (further
described in section VIII.D below). Also, the State survey (docket item
02) shows that most States and local agencies report that they conduct
State permitting programs, programs of routine inspection, and provide
different types of compliance assistance tools to help assure
compliance with the degreasing NESHAP, often in combination, and that
more than half of the agencies that reported compliance rate
information reported high compliance for degreasers. In addition, many
State and local agencies reported to us that compliance with the
degreaser NESHAP can best be achieved through compliance assistance
efforts, such as compliance outreach and education programs, and
compliance tools, rather than by using title V permits. [For example,
see docket item 92, an inspection checklist for degreasers developed by
a local air pollution control agency.] Thus, for the final rule,
revised factor four supports that title V is ``unnecessary'' for NESHAP
compliance for degreasers. See State and local agency input on
compliance assistance programs (docket items 02. 03, 06, and 08), and
State and local agency comments submitted in support of the proposed
exemptions (docket items 11, 16, 59, 61, and 65). Also, see section
VIII.D below for more on our decision to revise factor four; and
section VIII.H below for EPA's response to comment on the
appropriateness of title V exemptions when multiple applicable
requirements apply to degreasers.
We did not thoroughly discuss factor one for degreasers in the
proposal, but we do so here in response to comment. For the reasons
explained in section IV.A, the degreasing NESHAP contains monitoring
requirements for area sources that satisfy the requirements of the Act,
and are sufficient to assure compliance with the NESHAP. However, as
discussed in section IV.A, the degreasing NESHAP does not contain
reporting requirements that are directly comparable to the title V
requirements for deviation reports, six-month monitoring reports, and
annual compliance certification. [See Sec. Sec. 70.6(a)(3)(iii) and
71.6(a)(3)(iii).] However, this does not mean that compliance
requirements of the NESHAP are inadequate to achieve compliance on
their own. Indeed, in issuing the NESHAP for these sources, EPA
determined that the recordkeeping and reporting requirements contained
therein were adequate, and EPA continues to believe that this is the
case. [See 59 FR 61801, December 2, 1994.] The EPA acknowledges these
additional title V reporting measures may provide some marginal
compliance benefits, however we believe they would not be significant.
Because the monitoring required by the NESHAP is consistent with the
monitoring requirements of title V, and because the NESHAP itself has
adequate recordkeeping and reporting requirements tailored to the
NESHAP, we conclude that the first factor supports a title V exemption
for degreasers. Also, factor four (described above) independently
supports the conclusion that title V is ``unnecessary'' for NESHAP
compliance for degreasers, and thus, that a title V exemption is
appropriate for them.
Also, in the proposal, we did not discuss factor three, whether
title V costs are justified, taking into consideration any potential
gains in compliance likely to occur for degreasers, but our analysis of
factor three for the final rule is that it supports title V exemptions
for them. Consistent with our analysis of factor two for degreasers
(discussed above), title V costs are significant for them. Also, for
degreasers, revised factor four (discussed above), which examines the
ability of title V permits to improve compliance over that required by
the NESHAP, supports that title V is ``unnecessary'' for NESHAP
compliance, so it follows that the potential for gains in compliance
from title V are low. Although there may be some compliance benefits
from title V for degreasers, we believe they will be small, and not
justified by title V burdens and costs for them. Accordingly, for
degreasers, title V costs are not justified taking into consideration
the potential for gains in compliance from title V, and thus, factor
three also supports title V exemptions for degreasers.
Thus, factors one, two, three, and four support the exemption
findings of the proposal, and EPA concludes that title V exemption is
appropriate for area sources subject to the NESHAP for solvent
degreasing, consistent with the ``unnecessarily burdensome'' criterion
of section 502(a) of the Act.

E. EO Sterilizers

In the proposal, we described how factors one and four support a
title V exemption for area sources subject to the NESHAP for EO
sterilizers, subpart O. We did not discuss factors two and three for EO
sterilizers, but we do so below in response to comments. See the
discussion of EO sterilizers in the proposal, 70 FR 15256, March 25,
2005.
First, in the proposal, we compared the monitoring and reporting
requirements of the EO sterilizer NESHAP with those of title V, and we
stated that the requirements are substantially equivalent (the first
factor), when sources employ continuous monitoring methods to assure
proper operation and maintenance of control equipment, such as thermal
oxidizers. Also, we said that sources that use scrubbers employ
noncontinuous monitoring methods (e.g., weekly readings of glycol
levels in tanks), and thus, the recordkeeping and reporting
requirements for them would not be substantially equivalent to title V.
Although we were not certain of the number of area sources that employ
continuous monitoring methods under the NESHAP, we stated a belief that
most sources would employ such methods, and we asked for comment on the
percentage of sources that employ them. In addition, we noted that the
EO sterilizer NESHAP does not require an annual compliance
certification (as does title V), and we asked for comment on

[[Page 75330]]

the extent to which the lack of an annual compliance certification
report requirement in the NESHAP would negatively affect compliance
with the NESHAP.
For the final rule, we reviewed the EO sterilizer NESHAP once
again, and we now conclude that sources with scrubbers are required to
conduct ``continuous'' monitoring under the NESHAP, and therefore, that
the recordkeeping and reporting requirements of title V and the NESHAP
are substantially similar for all sources in the category. The EO
sterilizer NESHAP at Sec. 63.363(f) requires all sources to
demonstrate continuous compliance, and it sets forth the monitoring
requirements for demonstrating continuous compliance when the source
employs scrubbers as emissions controls at Sec. 63.364(b). [See Table
1 of Sec. 63.360, for a list of the general provisions, subpart A of
part 63, including definitions and reporting requirements, that apply
for this NESHAP.] Because they conduct ``continuous'' monitoring, they
are required to submit excess emissions and continuous monitoring
system performance report and summary reports, to assess their
compliance status on a semiannual basis, consistent with Sec.
63.10(e)(3), the same as sources that use thermal oxidizers as
emissions controls under the NESHAP. These reports provides compliance
information that is substantially equivalent to that of Sec. Sec.
70.6(a)(3)(iii) and 71.6(a)(3)(iii) for deviation reports and six-month
monitoring reports (see explanation below).
The EO sterilizer NESHAP requires sources to submit considerable
information to EPA, or its delegate agency, to assess compliance with
its emission limitations and standards. Section 63.366(a)(3) requires
an excess emissions and continuous monitoring system performance report
and summary report of all sources with a continuous monitoring system
(CMS), on a semiannual basis, consistent with Sec. 63.366(e)(3). The
excess emissions and continuous monitoring system performance report
requires information on periods when the CMS is inoperative, periods of
excess emissions and parameter monitoring exceedances, the nature and
cause of each malfunction, any corrective actions taken, including
repairs or adjustment made, and a certification of accuracy by a
responsible official. The summary report, consistent with Sec.
63.10(e)(3), is required to include an emissions data summary for
control system parameters and a CMS performance summary, which provides
detailed information on periods of monitoring system downtime and the
reasons the system was inoperative, including a certification of
accuracy by a responsible official. [See Sec. 63.10(c)(5) through
(13); and Table 1 of Sec. 63.360.]
As described above, the compliance information already required to
be reported by the EO sterilizer NESHAP is substantial, and it is
similar to that required for annual compliance certification under
title V [see Sec. Sec. 70.6(c)(5) and 71.6(c)(5)]. Also, the
compliance reports required by the NESHAP require certification by a
responsible official, which is defined similarly in the two programs
(see Sec. 63.2, and Sec. Sec. 70.2 and 71.2). For these reasons, we
conclude that the lack of an annual compliance certification report
under title V will not have a significant impact on compliance for the
EO sterilizer NESHAP. In addition, as described in section IV.A, title
V would not add any monitoring requirements for these sources.
Accordingly, we conclude that the EO sterilizer NESHAP provides
compliance information that is substantially equivalent to the
information required under title V. Thus, our analysis of factor one
for the final rule is that it supports that title V is ``unnecessary''
for NESHAP compliance for EO sterilizers. Also, see section VIII.I
below for EPA response to comments on EPA's analysis of the compliance
requirements of the EO sterilizer NESHAP.
Second, in the proposal, we explained that factor four, whether
adequate oversight by State agencies could achieve high compliance with
NESHAP, without relying on title V permits, supports title V exemptions
for EO sterilizers. In response to comment, we have revised factor four
(explained below), and revised factor four continues to support that
title V is ``unnecessary'' for compliance with the NESHAP for EO
sterilizers, and thus, it supports title V exemptions for them. In the
final rule, revised factor four is whether there are implementation and
enforcement programs in place that are sufficient to assure compliance
with the NESHAP for area sources, without relying on title V permits.
As further described in section VIII.D below, there are implementation
and enforcement programs in place sufficient to assure compliance with
the EO sterilizer NESHAP, in all parts of the nation, without relying
on title V permits. Also, the State survey (docket item 02) shows that
most States and local agencies report that they conduct State
permitting programs, programs of routine inspection, and provide
different types of compliance assistance tools to help assure
compliance with the EO sterilizer NESHAP, often in combination, and
that more than half of the agencies that reported compliance rate
information reported high compliance for EO sterilizers. Also, many
State and local agencies reported that compliance with the EO
sterilizer NESHAP can best be achieved through compliance assistance
efforts, such as compliance outreach and education programs, and
compliance tools, rather than by using title V permits. See State and
local input on compliance assistance programs (docket items 02, 03, 06,
and 08); and comments submitted by State and local agencies, all of
which are in support of the proposed exemptions for the five categories
of area sources (docket items 11,16, 59, 61, and 65). Also, see section
VIII.D below for more on our decision to revise factor four, and
section VIII.H and VIII.J below for EPA responses to comments on the
proposed exemption for EO sterilizers.
In the proposal, concerning factor two, whether title V is a
significant burden for these area sources, we stated a general belief
that title V burdens and costs would be significant for all five
categories of area source, and this statement included EO sterilizers.
For EO sterilizers, this general belief was not based on any particular
study or docket support, but instead on a general assessment of the
types of smaller establishments likely to meet the ``area source''
definition of part 63 and conduct EO sterilization activities, e.g.,
libraries and museums conducting fumigation of books and artifacts for
conservation purposes, and small contract sterilization businesses,
conducting off-site sterilization services for manufacturers of medical
equipment and supplies, pharmaceuticals, spices, and cosmetics. See
docket items 88 and 106.
In response to the comment that we should consider all four factors
in evaluating each category of area sources for exemptions, we note
that the docket does not contain reliable information on the economic
resources of area sources in the EO sterilizer category, but EPA
reaffirms the general belief that these types of sources are likely to
include relatively small businesses or other establishments with
limited economic resources. EPA is basing its decision to exempt EO
sterilizer area sources from title V on a consideration of the limited
information in the record on the types of establishments subject to the
area source rule, and on its assessment of the other three factors and
additional rationale noted in its evaluation of the legislative history
of title V. [See section

[[Page 75331]]

IV.D.] EPA believes title V would be ``unnecessarily burdensome'' for
EO sterilizer area sources, because title V would impose burdens that
EPA believes would significantly outweigh the small compliance benefits
expected from title V permitting for this category, satisfying the
exemption criterion in section 502(a).
Also, in the proposal, we did not discuss factor three, whether
title V costs are justified, taking into consideration any potential
gains in compliance likely to occur, for EO sterilizers, but we clarify
in today's final rule that factor three supports title V exemptions for
them. We described above in the context of factor one and revised
factor four, both of which examine the ability of title V permits to
improve compliance over that required by the NESHAP, why we believe
that title V is ``unnecessary'' for NESHAP compliance for them, so it
follows that the potential for gains in compliance is low. Although
there may be some compliance benefits from title V for EO sterilizers,
we believe they will be small, and not justified by title V costs and
burdens for them. Although we do not have reliable data on the economic
resources of EO sterilizers, the costs of title V will be the same for
these sources as other area sources addressed in this rule. In light of
the low compliance benefits provided by title V for these sources, we
do not believe that those costs are justified. Accordingly, for EO
sterilizers, we conclude that title V costs are not justified taking
into consideration the potential for gains in compliance from title V,
and thus, factor three supports title V exemptions for them.
Thus, factors one, three, and four support the title V exemption
findings of the proposal for area sources subject to the EO sterilizers
NESHAP. There is insufficient information to conclude that factor two
supports an exemption for EO sterilizers, but title V will impose some
burdens regardless of the financial resources of EO sterilizers, and
any burdens associated with title V compliance will be unnecessary,
since title V will not provide any significant compliance benefits for
them. Therefore, a title V exemption is appropriate for them,
consistent with the ``unnecessarily burdensome'' criterion of section
502(a) of the Act.

F. Secondary Aluminum

In the proposal, we described how factors one and two support title
V exemptions for area sources subject to the NESHAP for secondary
aluminum, subpart RRR. We did not discuss factors three and four for
them, but we do so below in response to comment. See the discussion of
secondary aluminum in the proposal, 70 FR 15258, March 25, 2005.
First, in the proposal, we compared the recordkeeping and reporting
requirements of the secondary aluminum NESHAP with those of title V,
and we stated that the requirements are substantially equivalent (the
first factor), when sources employ continuous monitoring methods to
assure proper operation and maintenance of control equipment, such as
when sources use thermal oxidizers for emission controls. Also, we said
that sources that use scrubbers as emissions control do not employ
continuous methods, and thus, the compliance requirements for them are
not substantially equivalent to title V. Although we were not certain
of the number of area sources that employ continuous monitoring methods
under the NESHAP, we stated a belief that most sources would employ
such methods, and we asked for comment on the percentage of sources
that employ them. In addition, we noted that the secondary aluminum
NESHAP does not require an annual compliance certification (as does
title V), and we asked for comment on the extent that the lack of an
annual compliance certification report requirement in the NESHAP would
negatively affect compliance with the NESHAP.
For the final rule, we reviewed the secondary aluminum NESHAP once
again and we now conclude that sources with scrubbers are required to
conduct ``continuous'' monitoring under the NESHAP. The secondary
aluminum NESHAP requires CMS for each add-on control device, including
for scrubbers, when they are approved as an alternative monitoring
method [e.g., Sec. 63.1510(w)]. [See Appendix A of subpart RRR, for a
list of the general provisions of subpart A of part 63, including
definitions and reporting requirements, that apply for this NESHAP; and
the preamble for the final secondary aluminum NESHAP, 65 FR 15693,
March 23, 2000, for more on the requirement for continuous compliance
under the NESHAP.] Because they conduct ``continuous'' monitoring, they
are required to submit excess emissions/summary reports to assess their
compliance status, on a semiannual basis, consistent with Sec.
63.10(e)(3), the same as other sources that use add-on controls, such
as thermal oxidizers, under the NESHAP. These reports provide
compliance information that is substantially equivalent to the
requirements of Sec. Sec. 70.6(a)(3)(iii) and 71.6(a)(3)(iii) for
deviation reports and six-month monitoring reports (see detailed
explanation below).
The secondary aluminum NESHAP requires sources to submit
considerable information to EPA, or its delegate agency, to assess
compliance with its emission limitations and standards. Section
63.1516(b) of the NESHAP requires an excess emissions/summary report
for all sources with a CMS, on a semiannual basis, consistent with
Sec. Sec. 63.10(e)(3) and 63.10(c). The excess emissions report
requires all monitoring data, information on periods when the CMS is
inoperative, periods of excess emissions and parameter monitoring
exceedances, the nature and cause of each malfunctions, any corrective
actions taken, including repairs or adjustment made, certifications by
a responsible official that certain work practices were performed, and
the results of any performance tests conducted during the reporting
period. The summary report, consistent with Sec. 63.10(e)(3), is
required to include an emissions data summary for control system
parameters and a CMS performance summary, which provides detailed
information on periods of monitoring system downtime and the reasons
the system was inoperative, including a certification of accuracy by a
responsible official. [See Sec. Sec. 63.1516(b)(2) and (3); and Sec.
63.1518].
As described above, the compliance information already required to
be reported by the secondary aluminum NESHAP is substantial, and
similar to that required for annual compliance certification under
title V [see Sec. Sec. 70.6(c)(5) and 71.6(c)(5)]. Also, the
compliance reports required by the NESHAP require certification by a
responsible official, which is defined similarly in the two programs
(see Sec. 63.2; and Sec. Sec. 70.2 and 71.2). Because of the
substantial information concerning compliance required to be reported
by the secondary aluminum NESHAP, the lack of an annual compliance
certification report under title V will not have a significant impact
on compliance for the NESHAP, and we are satisfied that the
recordkeeping and reporting component of factor one supports an
exemption for area sources subject to this NESHAP. [Also, see docket
item 89, a summary in tabular form of the monitoring, recordkeeping,
reporting, and other compliance requirements of the secondary aluminum
NESHAP.] As discussed in Section IV.A, the monitoring component of
factor one also supports a title V exemption for secondary aluminum
smelters.
Accordingly, we conclude that the secondary aluminum NESHAP
provides compliance information that is

[[Page 75332]]

substantially equivalent to the information required under title V.
Thus, our analysis of factor one for the final rule is that it supports
that title V is ``unnecessary'' for NESHAP compliance for secondary
aluminum. [Also, see section VIII.I below for EPA's response to
significant comments on the proposed exemption for secondary aluminum
smelters.]
Second, in the proposal, we discussed that title V permitting would
impose a significant burden on these area sources that would be
difficult for them to meet with current resources (the second factor).
In 2001, there were over 1,300 facilities in the secondary aluminum
industry. Half of these facilities employed fewer than 20 employees.
These small sources will likely lack the technical resources needed to
comprehend and comply with permitting requirements and the financial
resources needed to hire the necessary staff or outside consultants.
Accordingly, we conclude that title V is ``burdensome'' for them
because almost all of them are small businesses with limited resources,
and they will be subject to numerous mandatory sources activities under
part 70 and 71, that it will be burdensome for them to meet, whether
they have a standard or general permit. Thus, for the final rule, we
believe factor two supports title V exemptions for secondary aluminum
smelters.
We did not discuss factor three in the proposal, whether title V
costs are justified, taking into consideration any potential gains in
compliance likely to occur, for area sources subject to the NESHAP for
secondary aluminum, but we clarify in today's final rule that factor
three supports title V exemptions for them. We explained above that
title V imposes significant burdens and costs on these area sources
(factor two). Also, for secondary aluminum area sources, consistent
with factor one (described above) and revised factor four (discussed
below), both of which examine the ability of title V permits to improve
compliance over that required by the NESHAP, title V is ``unnecessary''
for NESHAP compliance, so it follows that the potential for gains in
compliance for them is low. Although there may be some compliance
benefits from title V for secondary aluminum area sources, we believe
they are small, and not justified by title V costs and burdens for
them. Accordingly, for secondary aluminum, title V costs are not
justified for area sources taking into consideration the potential for
gains in compliance from title V, and thus, factor three supports title
V exemptions for them.
In the proposal, we did not discuss factor four for secondary
aluminum smelters, whether adequate oversight by State agencies could
achieve high compliance with NESHAP, without relying on title V
permits, for secondary aluminum. In response to comments, we have
revised factor four, and revised factor four supports the conclusion
that title V is ``unnecessary'' for compliance with the NESHAP for
secondary aluminum, and thus, it supports a finding that title V
exemptions are appropriate for them. Revised factor four is whether
there are implementation and enforcement programs in place that are
sufficient to assure compliance with the NESHAP for area sources,
without relying on title V permits. As further described in section
VIII.D below, there are implementation and enforcement programs in
place sufficient to assure compliance with the secondary aluminum
NESHAP, in all parts of the nation, without relying on title V. These
programs take several forms, including programs conducted under the
statutory authority of sections 112, 113, and 114 of the Act, State
delegations under section 112(l), SBAP under section 507, and voluntary
compliance assistance, outreach, and education programs. Factor four is
satisfied for this category by the statutory requirement for
implementation and enforcement of NESHAP in section 112, which applies
to all NESHAP, including this one. For secondary aluminum, the State
survey confirms that adequate compliance is being achieved in practice
by States (more than half of the agencies that reported compliance rate
information reported high compliance), but there were fewer examples of
compliance oversight programs and fewer responses to the compliance
rate question for this category, compared to other categories. We
believe these data are explained by the timing of the State survey
relative to the effective date of the secondary aluminum standard,
rather than suggesting any deficiencies in State implementation and
enforcement for the NESHAP. The timing of the State survey explains the
response to questions concerning secondary aluminum because the
earliest date that compliance with the secondary aluminum NESHAP was
required was about the same time as the data collection phase of the
State survey. Thus, State and local agencies did not have much
experience with compliance oversight for secondary aluminum, or much
compliance data upon which to base their survey responses for this
category at the time the State survey was conducted. The secondary
aluminum NESHAP did not require sources to be in compliance until March
24, 2003 (all other NESHAP were effective much earlier than this),
while the majority of State and local input for the State survey
occurred from March to June of 2003. [See the final rule for secondary
aluminum, 65 FR 15690, March 23, 2000, docket item 77, and
documentation of the data collection phase of the State survey, docket
items 93 and 94.] Also, many State and local agencies reported to us
that compliance with the NESHAP for area sources, including for the
secondary aluminum NESHAP, can best be achieved through compliance
assistance efforts, such as compliance outreach and education programs,
and compliance tools, rather than by using title V permits. See State
and local input on compliance assistance programs for area sources
(docket items 02, 03, 06 and 08); and State and local agency comments
on the proposal, all of which are in support of the proposed title V
exemptions for the five categories of area sources (docket Items, 11,
16, 59, 61, and 65). For these reasons, we conclude in the final rule
that factor four supports title V exemptions for area sources subject
to the secondary aluminum NESHAP. [Also, see section VIII.D for EPA
response to comments on proposed factor four.]
Thus, factors one, two, three, and four support the title V
exemption findings, and, consequently, title V exemptions are
appropriate for area sources subject to the NESHAP for secondary
aluminum, consistent with the ``unnecessarily burdensome'' criterion of
section 502(a) of the Act.

V. What Is EPA's Decision for Secondary Lead Smelters?

In the proposal, we declined to make a finding that title V
permitting for area sources subject to the NESHAP for secondary lead
smelting would be impracticable, infeasible, or unnecessarily
burdensome, and we asked for comment to help us determine if we should
make such a finding. We considered the same factors for these area
sources as we did for other categories of area sources, but we did not
have a basis for finding that an exemption was warranted, as for the
other area sources addressed in this rulemaking. We did not receive any
information or data during the comment period sufficient to support a
finding that permitting these area sources would be ``impracticable,
infeasible, or unnecessarily burdensome'' on such sources or that
exemptions would ``not adversely affect public health, welfare,

[[Page 75333]]

or the environment,'' nor did we receive any comments in opposition to
our proposal not to exempt secondary lead area sources. For these
reasons, the final rule will not exempt these area sources from title V
requirements. See 70 FR 15259.
Any area source subject to the secondary lead NESHAP that has not
already applied for a title V permit is required to submit a title V
permit application by December 9, 2005, as provided in Sec. 63.541(c)
of subpart X. Also, as provided in Sec. 70.3(c)(2) and Sec.
71.3(c)(2), assuming the source is an area source and not subject to
title V for another reason, the permit must include the requirements of
subpart X and all other applicable requirements that apply to emissions
units affected by subpart X, while any units not subject to subpart X
may be excluded from the permit. (See 68 FR 57518, October 3, 2003,
footnote 7 on page 57534.)

VI. May Title V Permits Be Issued to Exempt Area Sources?

In the proposal, we explained and sought comment on our proposed
interpretation of the Act as allowing only those area sources required
to be permitted under section 502(a), and not exempted by EPA through
notice and comment rulemaking to be subject to title V requirements. We
are finalizing that interpretation in today's final rule. Thus, after
the effective date of today's final rule, permitting authorities,
including State and local agencies, tribes, and EPA, may not issue
title V permits, including general permits, to area sources we exempt
in today's final rule. This interpretation of the Act means that
permitting authorities must stop issuing new title V permits to area
sources we exempt today, unless they are subject to title V for another
reason. Also, this means that any existing title V permits for such
exempted area sources must be revoked or terminated after the effective
date of today's final rule. However, to avoid disruptions to State
programs, States may wait until renewal to end the effectiveness of
such permits, unless an area source requests that this be done
expeditiously. The EPA believes that State issuance of title V permits
to area sources that EPA has exempted from title V permitting
requirements would conflict with Congress's intent that EPA define the
universe of sources subject to title V, and through inappropriate focus
on sources that qualify for an exemption, would be an obstacle to
implementation of the title V program. Even if the statute were
ambiguous in this regard, EPA would exercise its discretion to
interpret it this way to promote effective title V implementation. The
proposal included a discussion of these issues, and in the final rule,
EPA's interpretation of the Act in this regard is unchanged from the
proposal. See section VI below for more on EPA's interpretation of
these Act provisions. Note, however, that EPA interprets Section 116 of
the Act to allow permitting authorities to issue non-title V permits to
area sources that we have exempted from title V permitting. Such
permits may include preconstruction permits, FESOPS or other State
operating permits, or other permits not issued pursuant to an approved
part 70 program.

VII. May General Permits Be Issued as an Alternative to Title V
Exemptions?

The EPA has decided not to adopt the alternative, discussed in the
proposal, of allowing permitting authorities to issue general permits
to these area sources. The proposal discussed general permitting as a
streamlined process for issuing title V permits to a large number of
similar sources, and it stated that these area sources may be good
candidates for such permits. The proposal also analyzed the factors and
other rationale we used for title V exemptions against the requirements
for general permits, and we stated our belief that potential reductions
in costs and burdens from requiring general permits would not be
sufficient to alter our findings. [See this discussion in the proposal
at FR 15258-15259.] With respect to the first factor, the proposal said
that general and standard permits are subject to the same permit
content requirements under Sec. Sec. 70.6 and 71.6, so title V would
affect units to which the NESHAP applies in the same manner for general
permits, as for standard permits. For the second factor, the proposal
stated that general permits would potentially simplify the permit
application process, but general permits would require area sources to
conduct many of the same mandatory activities as sources with standard
permits, and thus, impose many of the same title V burdens and costs as
standard permits. [See the list of source activities in the discussion
of factor two in the proposal, 70 FR 15254.] For the third factor, the
proposal observed that general permits may reduce the costs of applying
for a permit, but the remaining costs to meet the permit requirements
will continue to be a burden for these area sources. This is so because
general permits reduce some burdens, but other significant burdens
remain. And, we explained that EPA's outreach in recent years has shown
that most State agencies generally do not believe that implementing
NESHAP for area sources through permits will result in increased
compliance, and that this would be true for general permits, as with
standard ones. This point was also made in comments submitted by State
and local agencies, all of which are in support of the proposed title V
exemptions for the five categories of area sources, see docket items,
11, 16, 59, 61, and 65. For the fourth factor discussed in the
proposal, we said the permit content requirements of Sec. Sec. 70.6
and 71.6 are identical for general and standard permits, and the
ability of State agencies to ensure NESHAP compliance outside of the
title V programs will apply with equal force for general permits.
Nevertheless, we offered general permitting as an alternative to title
V exemptions in the proposal, and we sought comment on this
alternative.
Some commenters expressed the view that general permitting should
be required as an alternative to title V exemptions because they
believe title V is critical for compliance with the NESHAP. Today's
final rule does not require general permits for these area sources as
an alternative to exempting them for several reasons. First, through
factors one and revised factor four, which we use to examine the
ability of title V permits to improve compliance over that required by
the NESHAP, we established that title V is ``unnecessary'' for NESHAP
compliance for these area sources, whether they have a general or
standard permit. [See detailed analysis of the factors one and four in
sections IV.A, VIII.A, and VIII.D.] Second, under section 504(d) of the
Act, issuing general permits to sources subject to title V is an option
for State and local agencies; an EPA decision not to exempt these
sources does not provide a means of ensuring that they would then
receive general permits. Also, because general permits are an option,
State and local permitting authorities would not be required to issue
them to area sources that request them. Because of this, the best
course of action to avoid unnecessary burdens for these area sources,
and to promote a focus by regulatory agencies on the type of oversight
we believe will be most effective in achieving compliance, is to exempt
them from title V in today's final rule. See section VII below for more
on EPA's decision to not require general permits for these area
sources.

VIII. What Are EPA's Responses to Significant Comments?

This section of today's preamble discusses the more significant
comments received on our March 25, 2005 proposal that are not addressed
elsewhere in today's preamble, and

[[Page 75334]]

EPA's responses to these comments. The EPA's response to all comments
(significant comments and other comments) is included in a response to
comment document which is in the docket for this rulemaking.

A. Is EPA's General Approach to Exemptions Consistent With the Act?

Many commenters disagreed with the proposed title V exemptions
because they did not agree that the four factors and other rationale we
used to justify the exemptions were consistent with the Act. In
response, the four factors and other rationale referred to in the
proposal, and again in this final rule, are not intended to replace the
statutory criteria for a title V exemption, but instead assist EPA in
evaluating whether the statutory criteria are satisfied. Section 502(a)
of the Act gives EPA discretion to exempt from title V area sources
subject to NESHAP, if permitting them would be ``impractical,
infeasible or unnecessarily burdensome'' on the area sources, while the
legislative history for this provision suggests the EPA should also
consider whether an exemption would ``adversely affect public health,
welfare, or the environment.'' The EPA used the four factors to analyze
whether title V would be ``unnecessarily burdensome'' on the area
sources, consistent with section 502(a). (See the explanation of the
four factors and other rationale of the proposal at 70 FR 15253-15255,
March 25, 2005.)
Factor one was used to analyze whether title V is ``unnecessary''
for NESHAP compliance by examining whether title V would add
substantial compliance requirements over those already required by the
NESHAP. Factor two was used to analyze whether title V will impose
significant burdens on area sources and whether these burdens will be
aggravated by difficulties area sources will experience in obtaining
assistance from State agencies. Factor three was used to analyze
whether title V costs are justified considering potential gains in
compliance from title V. If the costs of title V are high, burdens are
also high because costs are burdens; and if potential compliance gains
derived from title V are low, title V is more likely to be considered
``unnecessary'' for NESHAP compliance. Factor four was used in the
proposal to analyze whether adequate oversight by State agencies could
achieve high compliance with NESHAP without title V permits. If high
compliance with NESHAP can be achieved without title V, title V will
more likely be considered ``unnecessary'' for NESHAP compliance. We
have revised factor four in response to comments received on the
proposal. See more on revised factor four below.
In addition to the four factors, the EPA considered whether
exempting these area source from the need for title V permits could
cause adverse effects on public health, welfare, or the environment, at
least on a temporary basis, or whether requiring title V permitting
could have such adverse effects because of shifts in the resources of
State agencies away from assuring compliance for major sources with
existing permits to issuing new permits for these area sources. We do
not believe that exemptions from title V permitting for these area
sources will have adverse effects on public health, welfare or the
environment. First, as we explained in section IV above, through our
analysis of factors one and/or four for each of the five categories of
area sources, we established that title V is ``unnecessary'' for
compliance with the NESHAP, for each category of area source. Second,
as we explained in the proposal, the vast majority of these area
sources are typically subject to no more than one NESHAP, and few other
requirements under the Act. Also, the area sources are simple sources
with few emissions units and the NESHAP are relatively simple in how
they apply to these area sources. Because of these characteristics, the
likelihood that multiple NESHAP apply to the same area source is low,
and thus the need for a title V permit to clarify multiple or
overlapping NESHAP is also low. (See docket item 08 for State input on
the likelihood that multiple requirements will apply and the relative
simplicity of these sources.) Also, see EPA response to comments on
whether title V permit are needed to define monitoring for
electroplaters, section VIII.G, and EPA response to comment on whether
degreasers should be exempted when there are multiple applicable
requirement that apply to them, section VIII.H. In sum, EPA believes
that the factors and additional rationale that it has considered in
evaluating whether title V exemptions should be issued for the area
sources covered by today's rule appropriately probe whether title V is
``unnecessarily burdensome'' for the area sources, and whether an
exemption could cause adverse effects on public health, welfare or the
environment.
Several commenters were concerned that title V exemptions for these
area sources would result in the loss of certain title V benefits with
respect to State implementation plan (SIP) requirements, and that this
would result in adverse affects on public health, welfare, and the
environment. We disagree with this comment because we do not believe
title V exemptions for these area sources will have the effects
suggested by the commenter to any significant extent for the reasons
explained below.
First, the majority of area sources we exempt today (all of the dry
cleaners and many solvent degreasers), emit HAP that are not a criteria
pollutant subject to regulation under a SIP, so such adverse effects
for SIP requirements could not occur for these sources. This is the
case because Sec. 51.100(s), which defines VOC for purposes of SIP,
specifically excludes perchloroethylene (also known as
tetrachloroethylene), methylene chloride (dichloromethane), and 1,1,1-
trichloroethane (methyl chloroform) from the definition of VOC. Because
the only HAP regulated by subpart M is perchloroethylene, all area
source dry cleaners regulated under the NESHAP (estimated at up to
28,000 area sources) do not emit VOC. Also, many degreasers subject to
subpart T use perchloroethylene, methylene chloride, or 1,1,1,-
trichloroethane (including any combination of these), and if they emit
no other HAP that are VOC, then they also would not be subject to SIP
requirements for VOC. We estimate that there are up to 3,800 area
source degreasers subject to the NESHAP, but we have no estimate of how
many of these solely emit HAP that is not VOC. Also, EPA has focused on
VOC in this discussion because we are unaware of any other criteria
pollutant definitions that would be met by these three HAP.
Second, title V permits for area sources are limited in scope by
Sec. Sec. 70.3(c)(2) and 71.3(c)(2), which only require the emission
units that cause the source to be subject to title V (in this case the
units subject to NESHAP) to be included in the permit. Under these
regulations, if SIP requirements apply to an emissions unit, and NESHAP
does not, the unit is not required to be included in the area source
permit. For example, for a dry cleaner, the permit would only address
dry cleaning equipment, not other emissions units that may be
collocated at the area source, such as comfort heating systems subject
only to SIP requirements. This is quite different than for major
sources because Sec. Sec. 70.3(c)(1) and 71.3(c)(1) requires major
source permits to include all emissions units at the source, even those
that would not be subject to NESHAP. Thus, the extent that title V
exemptions for area sources would result in loss of compliance benefits
for SIP requirements is quite limited by the permit content
requirements for area sources, as compared to major sources.
Third, in our experience the NESHAP are more stringent than typical
SIP

[[Page 75335]]

requirements that would apply to these area sources. Because of this,
if a SIP and NESHAP apply to the same unit, any deficiencies in the SIP
requirements are likely to be corrected by the more stringent NESHAP
requirements, without the need for title V permits. Also, these NESHAP
compliance requirements are consistent with the Act, such that title V
permits are not needed to improve the compliance requirements of NESHAP
(this is described in more detail in section VIII.B below).
The commenter submitted no specific examples where emission units
subject to NESHAP are also subject to SIP requirements, but two
scenarios may be helpful in analyzing their claims, which we believe
are without merit. Both examples involve the so-called ``generic
applicable requirements'' that we believe would most commonly apply to
these area sources. These are relatively simple requirements that apply
identically to all emissions units at a facility. Also, both are
examples where the HAP meets the definition of VOC under Sec.
51.100(s) and potentially is subject to regulation under a SIP
(although we are not sure all SIPs regulate such units). The first
scenario is where a HAP, such as carbon tetrachloride, is regulated by
the degreaser NESHAP, and it is also VOC regulated under the SIP by a
pound per hour limit.\6\ The second is where a HAP, such as dioxin/
furan, is regulated by the secondary aluminum NESHAP,\7\ and it is also
PM regulated under the SIP by a process weight limit. In both cases,
EPA believes the NESHAP will be far more stringent than the SIP
requirements in terms of emission controls and compliance requirements.
Because of this, the NESHAP requirements will ensure that the area
source also meets the SIP requirements, and the compliance requirements
of the NESHAP will be consistent with the compliance requirements of
the Act, including title V. In addition, EPA has previously advised
States that ``generic'' requirements of the SIP (described above), that
are less stringent than other applicable requirements addressing the
same units and pollutants may be omitted from title V permits, provided
that the resulting ``streamlined'' terms and conditions achieve
compliance with all the applicable requirements. [See discussion of
treatment of ``generic'' requirements in White Paper Number 2 for
Improved Implementation of the Part 70 Operating Permits Program, March
6, 1996, docket item 100; and discussion of factor one in section IV.A
of this preamble.]
---------------------------------------------------------------------------

\6\ Note that these are the same emissions under different
definitions, so if you control one, you control the other.
\7\ The secondary aluminum NESHAP only regulates dioxin/furan
emissions for a limited set of emission units for area sources,
while additional HAP are regulated at additional emission units for
major sources. [See Sec. 63.1500(c).]
---------------------------------------------------------------------------

In addition, we explained in the proposal that requiring permitting
of area sources will likely cause, at least in the first few years of
implementation, permitting authorities to shift resources away from
assuring compliance for major sources with existing permits, to issuing
new permits for area sources. This has the potential, at least
temporarily, to reduce the overall effectiveness of States' title V
permit programs, which could potentially adversely affect public
health, welfare, or the environment. See docket item 08, where State
officials explain that permitting all the area sources proposed for
exemption would triple the number of title V permits issued in the
State, and that it would be difficult for them to obtain approval to
obtain additional full-time employees. Although State title V programs
are required to have authority to raise title V fees as necessary to
cover the costs of the program, in most States the program must seek
budget and fee increases through the State legislature as part of the
State budget process, which can lead to significant delays in getting
approval to increase fees or resources to meet new demands. Also, see
EPA response to comments on the legislative history guidance that title
V exemptions for area sources should not cause adverse effects on
public health, welfare, or the environment, in section VIII.E below.
One commenter said we should have discussed all four factors for
each category of area sources, suggesting that we ignored factors that
did not support the proposed title V exemptions for each category of
area sources. In response, we did not discuss all four factors for each
category of area sources in the proposal because we thought those
factors we identified as present supported a finding that title V was
``unnecessarily burdensome,'' regardless of any determinations that
could be made regarding factors not analyzed. Nevertheless, in response
to this comment, and to provide a full discussion of all issues
potentially relevant to this rulemaking, we discuss the four factors
for each category of area sources elsewhere in the preamble for today's
final rule.

B. Does the First Factor Acknowledge Key Title V Requirements?

One commenter thought the first factor, whether title V adds
significant compliance requirements beyond those required by a NESHAP,
was not appropriate for analyzing the exemption criterion of section
502(a) of the Act because it fails to acknowledge key title V
requirements that would be lost under a title V exemption, directly at
odds with sections 504(a) and 504(c) of Act.
In response, the proposal's discussion of factor one focused on the
key compliance requirements of title V that are most likely to add
significant compliance benefits for area sources subject to NESHAP. We
explained that title V imposes a number of monitoring, recordkeeping,
and reporting requirements for compliance. We focused our review on the
requirements for monitoring, and the recordkeeping/reporting
requirements for prompt reports of deviations from permit requirements
(deviation reports) and for reports of required monitoring every six
months (six-month monitoring reports) under Sec. Sec. 70.6(a)(3)(iii)
and 71.6(a)(3)(iii), and the requirement for an annual compliance
certification by a responsible official under Sec. Sec. 70.6(c)(5) and
71.6(c)(5). Nevertheless, to provide a more complete response to the
comment in the final rule, we describe below several other compliance
aspects of title V that we were silent on in the proposal, including
the requirements of section 504(a) for the permit to include ``a
schedule of compliance,'' and ``such other conditions as necessary to
assure compliance with applicable requirements of the Act, including
the requirements of the applicable implementation plan [e.g., SIP],''
and the requirement of section 504(c) for permits to contain
``inspection'' and ``entry * * * requirements to assure compliance with
the permit terms and conditions.''
Concerning the requirement of section 504(a) for schedules of
compliance, there is independent authority for establishing schedules
of compliance to bring noncompliant sources back into compliance under
the general enforcement authority of section 113 of the Act, which
applies to these NESHAP. Also, the approval criteria for delegation
requests for NESHAP requires the Attorney General's written finding to
say that the delegate agency has enforcement authorities that meet the
requirements of Sec. 70.11, which requires them to have authority to
obtain an order, pursue a suit in court, or seek injunctive relief for
violations, and this may result in a schedule of compliance, where
appropriate, equivalent to any that may be obtained through title V.
Thus, a title V permit is not necessary to establish a schedule of
compliance for any of the area sources

[[Page 75336]]

we exempt today, in the event of noncompliance with these NESHAP.
Concerning the requirement of section 504(a) that permits contain
``enforceable emission limitations and standards,'' the five NESHAP
addressed in today's final rule establish such emission limitations and
standards, and they are independently enforceable outside of title V
permits. Also, title V does not contain authority for creating new
emission limitations and standards under section 112 in title V
permits, so no such emission limitations or standards would be lost
through title V exemptions for these area sources.
Concerning the requirement of section 504(a) that permits include
conditions to assure compliance with the requirements of the applicable
implementation plan (the SIP, for example), we described in section
VIII.A above why exempting these area sources from title V would not
significantly affect compliance with SIP requirements that may also
apply to such area sources. Also, we add that these SIP requirements
are independently enforceable under the authority of section 110 of the
Act, so their implementation and enforcement does not depend on title
V.
Concerning the requirements of section 504(c) for permits to
contain inspection and entry requirements, when EPA is responsible for
implementation and enforcement of the NESHAP such requirements would be
met under the authority granted EPA by section 114 of the Act. State
and local agencies or tribes are required to have such authority as a
condition of approval for any delegation request they make, consistent
with section 112(l) of the Act. For example, agencies requesting
delegation of NESHAP are required to submit, as part of their
delegation request, a written finding by the State Attorney General (or
General Counsel for local agencies and tribes) that they have legal
authority ``to request information from regulated sources regarding
their compliance status,'' under Sec. 63.91(d)(3)(i)(B), and ``to
inspect sources and any records required to determine a source's
compliance status,'' under Sec. 63.91(d)(3)(i)(C). In addition, as
part of their delegation requests, agencies are required to submit a
plan that ``assures expeditious compliance by all sources,'' including
a description of ``inspection strategies.''
Also related to the comment and response above, several commenters
said our analysis of factor one in the proposal was inadequate because
we relied on an illegal interpretation of the Act's monitoring
requirements through our reliance on the ``umbrella monitoring'' rule
of January 22, 2004. These commenters argue that Sec. Sec. 70.6(c)(1)
and 71.6(c)(1) impose an additional case-by-case monitoring review
called ``sufficiency monitoring,'' that is independent from the
requirement for ``periodic monitoring'' under Sec. Sec.
70.6(a)(3)(i)(B) and 71.6(a)(3)(i)(B). Also, they believe that if EPA
conducted such a review, the result would be a determination that the
compliance requirements of title V and the NESHAP are not substantially
equivalent.
We disagree with this comment. As described more fully in section
IV.A, even if ``sufficiency monitoring'' were required, additional
monitoring requirements would not be imposed in title V permits for the
area sources addressed by today's rule, because the NESHAP for them
were all promulgated after the 1990 Clean Air Act amendments, and
therefore contain all monitoring necessary to meet current requirements
under the Act. In finalizing each of the NESHAP under part 63, EPA
solicited and responded to comments on the adequacy of the monitoring,
reporting, and recordkeeping provisions required by the NESHAP. Any
opportunity to challenge the compliance requirements imposed through
the five NESHAP has passed, and this rulemaking does not create new
grounds for such challenges.

C. Does This Rulemaking Adequately Address Title V Costs?

Several commenters thought the costs of title V permitting for
these area sources described in the proposal, relevant to factors two
and three, were inflated and not representative, and instead, that the
true costs of title V permitting for them would be much lower and not
significant for them. Also, these commenters stated that the costs for
title V for area sources would be a fraction of the costs for major
sources because area sources have fewer emissions units, their
operations are less complex, and they are simpler to permit.
In the discussion of factor two in section IV.A above, we described
the information we used for the proposal, including economic
information on the five industry groups (docket item 04) and
information on title V burdens and costs from the ICRs for part 70 and
71 (docket items 80 and 81), to evaluate the impact of title V on these
categories of area sources, including limitations on this information,
and the assumptions we made for them concerning title V burdens and
costs. Also, in the proposal, we acknowledged that these sources would
generally have fewer emissions units, that their operations are less
complex, and they would be simpler to permit, and we took these facts
into consideration in our analyses. During the public comment period,
no one submitted any information related to the area source categories
to substantiate their claims that title V burdens and costs would not
be significant for these area sources. Our review of comments and
further consideration of these issues has not led us to a contrary view
from the proposal. Thus, we find that factor two supports title V
exemptions for the categories of area sources addressed in today's
final rule.
Also relevant to factor two and three in the proposal, one
commenter said that the EPA ignored Clean Air Act provisions designed
to limit title V costs for small sources, while another commenter said
States agencies are expected to have resources to meet this workload
and fees to offset costs. Section 502(b)(3)(A) of the Act requires
title V sources to pay annual fees, while section 507(f) of the Act,
concerning SBAP, provides that the permitting authority may reduce any
fee required under this Act to take into account the financial
resources of small business stationary sources. In response, title V
fees vary greatly from State to State, but because area sources have
small emissions by definition and most State agencies charge emissions-
based fees (on a per ton basis), fees would not comprise a substantial
portion of the overall costs and burdens for these area sources. As the
EPA explained in the proposal, there are many other burdens and costs
of title V, unrelated to fees, such that whether fees are reduced or
not, significant burdens and cost of title V would remain for these
area sources. Section 502(b)(3)(A) of the Act requires fees to be
charged that are sufficient to cover all reasonable (direct and
indirect) costs required to develop and administer the title V program.
However, there are practical limitations on the ability of State
agencies, tribes, and EPA to increase fees and provide additional
resources for title V implementation, especially in a relatively short
period of time. In many States, fee increases must typically be
approved by the State legislature within the State budget process, and
this may lead to significant delays in implementing new fee schedules
to meet new demands. This limitation could lead to significant, albeit
temporary, impairment of the title V programs for major sources, given
the large workload a requirement to permit

[[Page 75337]]

these area sources would impose on State agencies. For example, if all
these area sources were required to be permitted, up to 38,000 title V
permit applications would be due by December 9, 2005, and title V
permits for these sources would have to be issued or denied within 18
months of receipt of the applications, as required by section 503(a)
and 503(c) of the Act.
Also relevant to factor two, one commenter pointed out that
difficulties in obtaining compliance assistance from State agencies
will be temporary. In response, EPA notes that even though such
difficulties may be temporary, they would come at a critical time for
sources and permitting authorities. For example, immediately upon
becoming subject to title V, an area source which does not typically
have employees trained in such matters, would need to quickly become
familiar with the critical and pressing step of completing and
submitting a permit application, required under Sec. 70.5 and Sec.
71.5. Since such applications are provided by individual permitting
agencies, access to the agency to obtain assistance and guidance on
completing the forms will be essential for area sources in order for
them to complete and submit them by the mandatory deadline, currently
December 9, 2005, in most jurisdictions. See 64 FR 69637, December 14,
1999, (setting the deadline of December 9, 2004 for deferrals to end).
In addition, before applications are distributed to area sources,
certain agencies may need to translate forms and other information into
foreign languages, which in the EPA's experience, is often needed for
small businesses, such as dry cleaners, in large urban communities, but
not typically necessary for major sources. [For example, see a fact
sheet developed for dry cleaners in Vietnamese, docket item 96 and the
equivalent form in English, docket item 97.]
Another commenter thinks the title V costs would not be significant
for area sources because they would merely be passed on to consumers.
In response, no economic data for these categories of area sources were
submitted by the commenter or otherwise available to the EPA to support
this point, and any such assertion is entirely speculative. Costs
cannot necessarily be passed on to consumers in highly competitive
industries, or where there are highly price-responsive consumers. EPA
believes that these situations may exist for these sources, and that
passing prices on to consumers may, therefore, not be feasible for
them. The commenter provided no information on competition in these
industries, or on price-responsiveness of their consumers to support
his assertions.

D. What Is Our Analysis of Factor Four for the Final Rule?

Commenters opposed to the EPA's reliance on the fourth factor in
the proposal, whether adequate oversight could achieve high compliance
with the NESHAP without title V, cited perceived flaws in the State
survey (docket item 02), including that it does not contain
representative data, that it has missing data, and that this missing
data means that existing compliance with the NESHAP is not high. The
proposal explained that information in the docket, including the State
survey, shows that many permitting authorities have alternative
compliance oversight programs that result in high NESHAP compliance
without title V. During the public comment period, the EPA received
comments from State and local agencies confirming this point. [See
docket items 11, 16, 59, 61, and 65]. The EPA undertook the survey to
collect information we thought would be relevant in our consideration
of possible title V exemptions, and we believe State and local agencies
made reasonable efforts to complete it. There is no definition for
``high'' compliance in the Act or EPA regulations, nor did the EPA
suggest one to State agencies. States are primarily responsible for
enforcement of the vast majority of Act requirements, including NESHAP,
through delegation of EPA responsibilities, approved State programs,
the SIP process, and other mechanisms, and we give considerable weight
to their judgement on questions concerning the compliance status of
sources. Moreover, even without such input from States, the EPA would
have reached the same conclusion regarding high compliance absent title
V because NESHAP are based on section 112 of the Act, which imposes
stringent compliance requirements, independent of title V, and because
States and EPA have adequate authority and actual implementation and
enforcement programs in place sufficient to assure compliance with
NESHAP, independent of title V.
Also concerning factor four of the proposal, one commenter said
they believe Congressional intent was that these exemptions would only
apply when a reasonable alternative to title V permitting is actually
in place and achieving results, specifically citing the 1990
legislative history that the EPA ``is authorized to exempt sources from
the new permit program if the exemption would be consistent with the
Act's purposes. For example, the EPA may exempt certain small but
numerous sources from the requirement to obtain a permit if a
reasonable alternative is developed.'' S. Rep. No. 101-228, at 349
(1990). In response, the plain wording of the Senate Report is that it
is an ``example'' of a justification for a title V exemption. Title V
does not require EPA to develop such alternative programs as a
prerequisite to granting exemptions. In any event, as described below,
we believe there is existing authority in the Act and actual
implementation and enforcement programs in place, as required under
section 112, that are sufficient to assure compliance with these
NESHAP, and thus, high compliance can be achieved with the NESHAP
without title V in all jurisdictions where such sources may reside in
the nation.
First. Statutory programs of implementation and enforcement of
NESHAP are conducted by EPA under the authority of sections 112, 113,
and 114 of the Act, while State and local agencies or tribes may be
granted delegation of this responsibility under section 112(l) of the
Act (implemented through subpart E of part 63). The EPA has primary
responsibility for implementation and enforcement of all NESHAP under
section 112 of the Act in all parts of the nation. Section 112(l)
allows EPA to delegate to State or local agencies or tribes certain of
its implementation and enforcement duties for NESHAP, based on a State
request to do so, and satisfaction of certain criteria. There are
several types of delegations, including ``straight delegation,'' which
is adoption of the NESHAP without change, or the delegate agency may
establish a program or rules to operate in place of the NESHAP,
provided the program or rules are ``no less stringent'' than the
NESHAP, and the delegate agency has adequate authority and resources to
implement and enforce the delegated NESHAP (under all delegation
options). Section 63.91(d) defines criteria that State and local
agencies or tribes are required to meet prior to approval of requests
for any type of NESHAP delegation, including that the request contain:
(1) Written findings from the Attorney General (or General Counsel for
local agencies and tribes) that they have certain legal authorities
concerning enforcement and compliance, (2) a copy of the State
statutes, regulations, and requirements that grant authority for them
to implement and enforce the NESHAP, (3) a demonstration that they have
adequate resources to implement and enforce all aspects of their NESHAP
program, except for authorities retained by EPA, and (4) a plan that
assures expeditious

[[Page 75338]]

compliance by all sources subject to the program. Also, depending on
the type of delegation requested, Sec. Sec. 63.92 through 63.95, and
Sec. 63.97 specify additional approval criteria. [Also, see section
112(l)(5), and the final rule for subpart E, 58 FR 62262, November 26,
1993, amended by 65 FR 55810, September 14, 2000]. In addition, under
section 112(l)(6) EPA has authority to withdraw its approval of a
delegation, or approval of an equivalent program or rule, if the
delegate agency is not adequately implementing or enforcing the NESHAP;
and under section 112(l)(7) EPA may enforce any NESHAP, including those
it has delegated. Thus, even if a State does not have adequate
authority to implement and enforce any NESHAP in their jurisdiction,
EPA does have such authority, consequently, there can be no gap in
implementation and enforcement for NESHAP that apply to area sources in
any jurisdiction. [For example, see EPA's final rule approving the
request of Indiana for delegation of all NESHAP for all sources not
covered by the State's part 70 program, 62 FR 36460, July 8, 1997,
docket item 98.]
Second. The EPA has general authority for enforcement of NESHAP
under section 113, including authority to (1) issue an order requiring
compliance or assessing an administrative penalty; (2) bring a civil
action seeking to enjoin violations or the assessment of penalties; or
(3) bring a criminal action to punish knowing violations. Section 114
allows the EPA to determine if violations have occurred through
inspection, auditing, monitoring, recordkeeping, reporting, and entry
onto premises.
Third. All States have established non-title V permitting programs,
which may include operating and preconstruction permitting programs for
minor sources, under section 110(a)(2)(C) of the Act. However, the EPA
notes that several States have reported that their non-title V permits
do not currently include NESHAP, so such permits would not always be
immediately available for this purpose. Although some State agencies
have established permitting programs under State law that include
NESHAP for area sources, some have not, either because they do not have
explicit State authority, or they have State authority, but they have
chosen to not implement such a program so far. See the State survey
(docket item 02), where States noted that they issue non-title V
permits for certain of these area sources.
Fourth. All States and EPA are required to establish a small
business assistance program (SBAP) under section 507 of the Act. These
programs are required to assist small business with technical and
environmental compliance assistance, and they are not limited to title
V sources. Any activities for non-title V sources conducted by a SBAP
may be funded by non-title V fees at State option, and EPA matching
grants under section 105 of the Act may also be used for this
purpose.\8\ State SBAP programs are required by section 507 to provide
information on compliance methods, to have a small business ombudsman,
to provide assistance in determining applicable requirements and
permitting requirements under the Act, and to refer sources to
compliance auditors, or at State option, provide auditors for small
sources. [For example, see docket item 91, a fact sheet concerning an
SBAP implemented by a local air pollution control district.]
---------------------------------------------------------------------------

\8\ For more on the use of matching grants, see a August 4, 1993
memorandum from John S. Seitz, Director, Office of Air Quality
Planning and Standards, U.S. EPA, ``Reissuance of Guidance on Agency
Review of State Fee Schedules for Operating Permit Programs under
Title V,'' and a July 21, 1994 memorandum from Mary D Nichols,
Assistant Administrator for Air and Radiation, U.S. EPA,
``Transition to Funding Portions of State and Local Air Programs
with Permit Fees Rather than Federal Grants.''
---------------------------------------------------------------------------

Finally. States may have voluntary compliance assistance programs
in place for NESHAP requirements, such as the environmental results
programs (ERP) or other similar programs. The EPA has encouraged States
to adopt voluntary programs in the past, and the ERP, in particular,
has been successful in assisting small sources with compliance in
fourteen States across nine business-dominated sectors, including dry
cleaners in Massachusetts and Michigan. See 70 FR 15260. In addition to
the State survey, which includes information concerning State
permitting programs, inspection, and compliance assistance programs,
several permitting agencies submitted comments to describe their
alternative programs for non-title V sources in additional detail. [See
State and local comments, docket items 11, 16, 59, 61, and 65.]
Importantly, no comments were received from State agencies saying that
they would not be able to ensure compliance for these area sources if
we promulgate title V exemptions for them.

E. Are These Exemptions Consistent With the Legislative History of The
Act?

Several commenters expressed concern that exemptions from title V
would adversely affect public health, welfare, or the environment by
weakening air quality standards, increasing HAP emissions, and by
increasing morbidity in human populations, and that this would be
inconsistent with the legislative history of section 502(a).
In response, section 112 of the Act, which authorizes NESHAP, is
the primary vehicle under the Act for HAP reduction, not title V. See
sections 112(b)(2), 112(c)(3), 112(d), 112(f), and 112(k) of the Act.
For an overview of the EPA's national effort to regulate air toxics
under section 112, see a July 19, 1999 notice (64 FR 38705), which
includes a description of the EPA's integrated urban air toxics
strategy, a strategy to address public health risks posed by air toxics
from the large number of smaller area sources in urban areas. Today's
rulemaking is not exempting any area sources from any section 112
requirements, such as those described in the July 19 notice, and
section 112 gives the EPA, or its delegate agency, responsibility to
implement and enforce section 112 standards, independent of title V.
Thus, consistent with the legislative history and the EPA's analysis
for each category of area sources addressed in this rulemaking, title V
exemptions for these particular area sources will not thwart or in any
way interfere with the implementation and enforcement of section 112 of
the Act, and today's action should not adversely affect public health.
The EPA does not believe HAP increases will occur from title V
exemptions for these area sources. The Act does not require emission
reductions through title V permits. As we explained in the proposal (70
FR 15255), the EPA's outreach in recent years has shown that several
State agencies believe, in their experience, implementing emissions
standards for area sources through permits did not result in increased
compliance with the emissions standards. EPA has evaluated the extent
to which title V could improve compliance for these NESHAP, and EPA
believes that successful implementation at such sources is better
achieved through compliance assistance efforts, such as compliance
outreach and education programs, rather than title V permits.
One commenter asserted that title V permitting will not divert
resources from more significant sources because the Act requires State
and local agencies to charge adequate fees to cover the costs of the
title V program, including the costs of small business assistance
programs under section 507 of the Act, and adequate personnel to
administer the program, and because fees may be reduced for small
sources. This commenter apparently was taking issue with EPA's
statement in the proposal

[[Page 75339]]

that ``requiring permitting of area sources will likely cause, at least
in the first few years of implementation, permitting authorities to
shift resources away from assuring compliance for major sources with
existing permits to issuing new permits for area sources. This has the
potential, at least temporarily, to reduce the overall effectiveness of
the States' title V permit programs, which could potentially adversely
affect public health, welfare, or the environment.'' In response, EPA
notes that there are practical limitations on the ability of State
agencies, tribes, and EPA to increase fees and provide additional
resources for title V implementation, especially in a relatively short
period of time. As we described in the proposal (70 FR 15255), in many
States, fee increases must typically be approved by the State
legislature within the State budget process, and this may lead to
significant delays in implementing new fee schedules to meet new title
V demands. This limitation could lead to significant, albeit temporary,
impairment of the title V program for major sources, given the large
workload a requirement to permit these area sources would impose on
State agencies. For example, if all these area sources were required to
be permitted, up to 38,000 title V permit applications would be due by
December 9, 2005, and title V permits for these sources would have to
be issued or denied within 18 months of receipt of the applications, as
required by section 503(a) and 503(c) of the Act.

F. Is It Reasonable for EPA To Rely on the Information Cited in Support
of the Proposal?

Several commenters complained about the information EPA collected
to support the findings of the proposal, particularly the State survey,
concluding that it was so flawed that the findings are arbitrary and
capricious under the APA or otherwise inconsistent with administrative
rulemaking requirements. We disagree. In developing the proposal, EPA
sought and relied on information from State agencies on the level of
oversight and compliance rates for the area sources addressed in
today's proposal. The results are summarized for each category of area
sources in the State survey (docket item 02). The EPA also sought input
from State small business ombudsmen and several trade associations, and
they responded with information on the area sources and compliance
assistance programs currently available to them. This information is
also in the docket. See docket items 03, 06, and 08.
We have collected information we believe is useful and appropriate
under the statute to establish a rational basis for evaluating whether
the area sources addressed in today's rule satisfy the exemption
criteria of section 502(a) of the Act. We summarized our outreach
efforts and we collected cost and economic data, which we placed in the
docket prior to the proposal. We considered all information available
to us for this rulemaking, including that submitted during the public
comment period, in making our exemption findings. Also see section X
below for additional discussion of how this rulemaking satisfies
administrative rulemaking requirements.
As to comments that the State survey is not complete, we believe
much of the missing information can be explained by two factors: (1)
State agency participation was voluntary, and (2) some States have more
or less of these area sources, so experience with them varies. We did
not base our decisions on missing data but on the data we have and our
judgement as air quality experts, and we did not assume any particular
meaning for missing data. Commenters had an opportunity to submit what
they consider to be more complete or accurate information on compliance
rates and the oversight activities of State agencies for these area
sources during the comment period, but they did not do so.
Also, concerning information on burdens and costs of title V, for
the current ICR, we provided the public with our draft analysis of
burdens and costs under title V, including for general permits, and we
received no comments.

G. Are Permits Necessary To Define Monitoring for Chrome
Electroplaters?

One commenter stated that the monitoring requirements of the chrome
electroplating NESHAP vary based on the type of control technique
employed and the range of acceptable values, or a minimum and maximum,
for each monitoring parameter at each area source, and that it would be
useful for the public, regulatory agencies, and the source for its
specific obligations to be spelled out in a permit.
The chrome electroplating NESHAP has extensive requirements for
monitoring, recordkeeping, and reporting, including for monitoring
system performance tests, and a written report to document the results
of the performance test, which will document the monitoring techniques
employed and the parameter ranges that show compliance. The NESHAP
requires the source to conduct the performance tests needed to define
the monitoring parameters that assure compliance by the source with its
emissions limitations or standards, and this report is submitted to EPA
or a delegate agency with such responsibilities, as defined at Sec.
63.347(f), so neither the source or the regulatory agency will be
confused about the specific monitoring that applies to area sources,
absent a title V permit. Also, there is independent authority for
public disclosure of information related to compliance with NESHAP
under section 114(c) of the Act, which does not rely on title V for
implementation. Public disclosure authority under section 114(c) of the
Act extends to all information collected under NESHAP, even information
required to be kept on-site, rather than submitted directly, except for
trade secrets which may not be released to the public. Thus, if a
member of the public wants information on compliance with the NESHAP,
he or she may get it from the agency responsible for implementation and
enforcement of the NESHAP (either EPA, or the State or local agency, or
tribe), whether there is a title V permit or not. In addition, State or
local agencies, or tribes, are required to submit, as part of their
delegation request, a written finding by the State Attorney General (or
General Counsel for local agencies and tribes) that the State has legal
authority ``to request information from regulated sources regarding
their compliance status,'' under Sec. 63.91(d)(3)(i)(B), and legal
authority ``to inspect sources and any records required to determine a
source's compliance status,'' under Sec. 63.91(d)(3)(i)(C). Therefore,
title V is not necessary for State and local authorities to obtain
compliance information from regulated sources. While it is helpful for
the public, regulatory agencies, and the source for the specific
requirements to be defined in a permit, we do not believe it is
necessary for adequate compliance to occur, and we believe we have
shown in today's final rule that title V would be unnecessarily
burdensome on these area sources.

H. May Degreasers Be Exempted When There Are Multiple Applicable
Requirements?

One commenter supports an exemption for degreasers, but only when
they are not subject to other applicable requirements. They think the
compliance requirements of the NESHAP will be substantially equivalent
to title V only when the source is subject to only this NESHAP and the
source is not subject to other NESHAP. In response, the EPA does not
agree with this comment for the

[[Page 75340]]

following reasons. First, there are cases where more than one NESHAP
for which a title V exemption is being finalized applies to degreasers,
for example, where a degreaser is located at a chrome electroplater.
But the requirements of the chrome electroplating and degreasing NESHAP
do not significantly overlap for the emission units at such facilities,
so this would not present a significant problem of complexity that
would justify the burdens associated with issuing title V permits for
such sources. Second, such concerns are largely offset by the relative
simplicity of the emission control requirements of the degreaser
NESHAP, which involves primarily work practice standards. For example,
lids are required to be kept on containers at all times when not in
use. However, EPA notes that where a degreaser is otherwise subject to
title V, it will not be exempt from permitting. Thus, because
degreasers are often collocated with major sources, as an adjunct to
the primary activity occurring at the major source, many degreasers
will be included in the major source permit for the collocated major
source. This is so because, as we have clarified elsewhere in this
preamble, major source permits must include all applicable
requirements, and these exemptions are only for title V requirements at
area sources.

I. Are the Compliance Requirements of the EO Sterilizer and Secondary
Aluminum NESHAP Substantially Equivalent to Title V?

One commenter opined that the compliance requirements of the EO
sterilizer and secondary aluminum NESHAP are not substantially
equivalent to the compliance requirements of title V with respect to
our analysis of factor one for area sources subject to these NESHAP
because the EPA has no data to show how many sources employ continuous
monitoring methods, and even if continuous methods are used, the
reporting is not equivalent to title V reporting. Also, the commenter
pointed out that the EO sterilizer and secondary aluminum NESHAP do not
require an annual compliance certification (as does title V), and that
this is another reason why the compliance requirements of the NESHAP
and title V are not substantially equivalent as EPA proposed. Also,
responding to a specific request of the proposal for input on the value
of annual compliance certifications and the threat of enforcement for
false certification for area sources subject to these NESHAP, the
commenter said that completing a compliance certification will be
important in bringing about better compliance because the act of
signing one is not taken lightly and will produce positive results,
including greater compliance efforts, and the submittal of more
compliance plans.
In the proposal, we compared the compliance requirements of the EO
sterilizer and secondary aluminum NESHAP with those of title V, and we
stated for both that the recordkeeping and reporting requirements are
substantially equivalent (the first factor), when sources employ
continuous monitoring methods to assure proper operation and
maintenance of control equipment, such as when sources use thermal
oxidizers for emission controls. Also, we said that sources that use
scrubbers as emission controls under both of these NESHAP employ
noncontinuous monitoring methods, and thus, the recordkeeping and
reporting requirements for them would not be substantially equivalent
to the compliance requirements of title V. Although we were not certain
of the number of area sources that employ continuous monitoring methods
under either of the two NESHAP, we stated a belief that most sources
would employ such methods, and we asked for comment on the percentage
of sources that employ them. See the March 25, 2005 proposal's
discussion of EO sterilizers (70 FR 15256) and secondary aluminum (70
FR 15258).
For the final rule, we reviewed the EO sterilizer and secondary
aluminum NESHAP once again, and we now conclude that sources with
scrubbers are required to conduct ``continuous'' monitoring under the
NESHAP. Also, both of these NESHAP require sources that conduct
``continuous'' monitoring to submit excess emissions and continuous
monitoring system performance report and summary reports to assess
their compliance status on a semiannual basis, consistent with Sec.
63.10(e)(3). These NESHAP require these reports for sources that use
scrubbers for emissions controls, the same as they require them for
sources that use thermal oxidizers as emissions controls. Under the two
NESHAP, these reports provides compliance information that is
substantially equivalent to the requirements of Sec. Sec.
70.6(a)(3)(iii) and 71.6(a)(3)(iii) for deviation reports and six-month
monitoring reports (see explanation below). [Also, see discussion of
factor one for these area sources in sections IV.A, IV.E and IV.F, and
more on why title V monitoring and the monitoring in these NESHAP are
equivalent in section VIII.E.]
The compliance information already required to be reported by these
two NESHAP is substantial, and similar to that required in annual
compliance certifications under title V [see Sec. Sec. 70.6(c)(5) and
71.6(c)(5)]. Also, the compliance reports required by the two NESHAP
require certification by a responsible official, which is defined
similarly in the two programs [see Sec. 63.2, and Sec. Sec. 70.2 and
71.2]. For these reasons, we conclude that the lack of an annual
compliance certification report under title V will not have a
significant impact on compliance for these NESHAP.
Also, in response to the comment that the act of signing the
compliance certifications is valuable because it produces positive
compliance results and that these results will be lost if we exempt
these area sources from title V, we disagree that the title V
exemptions will have this effect for these NESHAP. We conclude this in
today's final rule because the EO sterilizer and secondary aluminum
NESHAP both require the excess emissions and continuous monitoring
system performance report and summary reports (described above) to be
certified by a responsible official, similar to how this is done for
title V. [See the requirements for certification by responsible
official of Sec. 63.363(a)(3) for EO sterilizers and Sec.
63.10(e)(3)(v) for secondary aluminum.]
In the final rule, we conclude that the overall differences in
compliance requirements, after considering all monitoring,
recordkeeping, and reporting requirements, including the lack of annual
compliance certification, are not great enough to have a significant
impact on compliance for the EO sterilizer and secondary aluminum
NESHAP, and we conclude that the compliance requirements of the NESHAP
and title V rules are substantially equivalent. Thus, our analysis of
factor one for the final rule is that it supports a finding that title
V is ``unnecessary'' for compliance for area sources subject to the EO
sterilizer and secondary aluminum NESHAP, consistent with the
``unnecessarily burdensome'' criterion of section 502(a) of the Act.

J. Are the Proposed Revisions to EO Sterilizer NESHAP Appropriate?

Several commenters were concerned that the proposed revision to
Sec. 63.360(f) would redefine what an ``area source'' is under the EO
sterilizer NESHAP, resulting in fewer area sources. Also, they stated
that the proposed rule change is inconsistent with the definition of
``major source'' and ``area source'' in section 112 of the Act, and

[[Page 75341]]

that it contradicts the proposed wording of Table 1 of Sec. 63.360,
which exempts ``area sources'' regardless of EO usage. Another
commenter recommended that the rule language be revised to be
consistent with parallel rule language for other subparts, which refers
to ``area sources.''
In the final rule, Sec. 63.360(f) has been revised to specify that
exemptions from title V are for ``area sources,'' rather than ``sources
using less than 10 tons [of EO],'' as we proposed. The intent of the
proposal was to exempt area sources subject to the NESHAP from title V,
not to change the applicability of the NESHAP. The EPA's March 2004
implementation guidance for this NESHAP (docket item 88) is clear that
the definition of ``area source'' is the definition of Sec. 63.2,
which is based on actual emissions or potential to emit, and this
definition should be used for title V purposes under the NESHAP.\9\
Also, the guidance explains that usage of EO is the basis for
applicability of the emission standards for various types of vents,
under the NESHAP. Nevertheless, we are changing the rule language today
to clarify that ``area sources'' subject to this standard are exempted
from title V, and this change will not affect the NESHAP requirements
that apply to any existing sources. With this change, Sec. 63.360(f)
is now also consistent with Table 1 of Sec. 63.360, in the same
subpart, and with the rule language of subparts M, N, T and RRR, that
also refers to ``area sources.''
---------------------------------------------------------------------------

\9\ U.S. EPA, Office of Air Quality Planning and Standards, EPA-
456/R-97-004, September 1997 (Updated March 2004), Ethylene Oxide
Commercial Sterilization and Fumigation Operations NESHAP
Implementation Document.
---------------------------------------------------------------------------

K. Are Title V Permits Allowed for Area Sources Exempted From Title V?

Several commenters disagreed with the EPA's proposed approach of
not allowing permitting authorities to issue title V permits to area
sources that EPA has exempted from title V. These commenters did not
agree with EPA's proposed reading of section 502(a), 506(a), and 116 of
the Act as requiring this result. Also, they did not agree that
existing title V permits for such sources should be terminated,
suspended, or revoked after exemptions from title V take effect.
Several commenters opined that EPA's proposed approach is
inconsistent with section 502(a) of the Act. The proposal explains that
section 502(a) of the Act grants the Administrator alone discretion to
define the universe of area sources subject to title V. It follows that
once the EPA exempts area sources through rulemaking, they may not be
permitted under title V. No other provision of the Act is more specific
on this matter than section 502(a). Similarly, an existing title V
permit for an area source that has been exempted from title V must be
revoked, terminated, or denied because the permit would conflict with
our interpretation of section 502(a) of the Act. We also believe
allowing title V permitting for area sources we have exempted would be
an obstacle to the implementation of title V both because of the
confusion and frustration such a situation would cause for the area
sources, based on the common sense meaning of the term ``exemption,''
and because State efforts at title V permitting would be better spent
addressing major sources and non-exempt area sources.
Several commenters were concerned that EPA's interpretation of
section 502(a) of the Act is illegal because it conflicts with section
506(a), which allows States to have ``additional permitting
requirements not inconsistent with this chapter.'' In light of the
structure of section 502(a), EPA believes that section 506(a) is best
read as allowing States to establish additional permitting requirements
for sources that are already subject to title V permitting. Thus, under
the EPA's interpretation, there is no conflict between the two sections
because section 502(a) of the Act defines what sources must get a
permit, while section 506(a) of the Act allows States flexibility in
establishing permit requirements for sources properly subject to the
program.
Several commenters stated that EPA's proposed reading of section
502(a) is illegal because it conflicts with section 116, which allows
States to issue title V permits to exempted area sources. We explained
in the proposal that section 116 of the Act allows State agencies to
issue non-title V permits to area sources that have been exempted from,
or are outside the scope of, the title V program. However, even if the
Act were ambiguous in this regard, EPA would exercise its discretion in
interpreting the Act to reach the same result. The EPA would do so to
avoid confusion for area sources, as described above, and to achieve
the policy benefits associated with having States direct their title V
efforts to major sources and non-exempt area sources.

L. Does This Rulemaking Disregard Cost Estimates for General Permits?

Several commenters were concerned that we disregarded prior
estimates of title V costs for general permits and they believe that
these estimates show that title V costs would be sufficiently low that
title V would not be ``unnecessarily burdensome'' for the area sources
addressed in the proposal.
In the discussion of burdens and cost of title V permitting in the
proposal (section II.A of the proposal), we stated that we did not have
specific estimates for the burdens and costs associated with general
permits for sources, but we described certain source activities
associated with the part 70 and 71 rules that would apply to sources,
whether they have a general or standard permit. Also, in section III of
the proposal we said that general permits would reduce burdens to some
extent for area sources but that the potential burden and cost
reductions would not be sufficient to alter our findings that title V
would be significant for area sources. To explain this last point in
more detail in the proposal, we reviewed each of the four factors we
used in our exemption analysis with respect to general permits, and we
concluded that title V will be ``unnecessarily burdensome'' for area
sources that are issued general permits, rather than standard permits.
(See 70 FR 15254 and 15258-15259.)
One commenter pointed to a regulatory impact analysis (RIA) for
operating permits issued in 1992, saying we should have used the
estimate of $154 per year in that document in analyzing the costs
associated with general permits. In response, the RIA (Regulatory
Impact Analyses and Regulatory Flexibility Act Screening for Operating
Permits Regulations, U.S. EPA, Office of Air Quality Planning and
Standards, EPA-450/2-91-011, June 1992) did contain an estimate of $154
for the total annual costs for general permits, but it is inaccurate
and outdated because it was not based on actual implementation
experience, such as the cost estimates contained in the more recent
2004 ICR, which is based on actual implementation experience, and which
suggests significantly higher costs for general permits, on the order
of half the cost of standard permits (see more on the 2004 ICR below).
The part 70 rule was not effective until July 21, 1992, and
consequently, no State title V programs were approved until December of
1994, and no part 70 permits were issued in any jurisdiction until late
1996. [Also, the part 71 rule was not effective until July 31, 1996].
One commenter said we disregarded information in the current ICR
for part 70 (issued in 2004), including ``re-application of general
permits'' at 2 burden hours for each title V source with a general
permit, compared to the estimate of ``permit renewal'' at 200 burden
hours for each title V source with a standard permit, which they
believe shows that title V costs for area

[[Page 75342]]

sources with general permits would not be significant (thus, not
``burdensome'' for them). In response, it was an oversight for us to
refer in the proposal to cost estimates in the 2000 ICR for part 70,
when an updated one, the 2004 ICR, was available; however, the 2004 ICR
does not support the commenter's claim that title V costs would not be
significant for these area sources. We referenced the 2000 ICR in our
proposal as indicating an average title V cost of $7,700 per source per
year, and noted that there were no specific estimates for general
permits. Similarly, the 2004 ICR indicates an average title V cost of
$7,300 per source per year, and, although it contains specific
estimates of title V costs for certain activities required for sources
with general permits, it does not provide specific estimates of title V
costs for all activities that would occur for such sources. For
example, the 2004 ICR lists twelve different activities that title V
sources would experience (see table 2, average source burden by
activity, page 16). The ICR lists all activities that may apply to a
typical source, not all that will necessarily apply to every source.
For example, there are burden hour estimates for three different types
of permit revisions, but not all sources may need any of these permit
revisions in any given year. The commenter is correct that the activity
of ``re-application of general permits'' at 2 burden hours per year
would only apply to sources with general permits, and that another
activity, ``permit renewal'' at 200 burden hours per year, would only
apply to sources with standard permits. Both of these activities
reflect the requirements of title V for sources to prepare permit
applications for permit renewals, which for general permits, may be
streamlined, compared to standard permits. [See Sec. 70.6(d)(2), which
allows applications for general permits, including permit renewal
applications, to ``deviate from the requirements of Sec. 70.5,'' which
applies for standard permits.] However, title V sources are subject to
many other activities the commenter did not acknowledge. For example,
another activity listed in the table, ``prepare monitoring reports'' at
80 hours per source per year, would apply to sources with general
permits and standard permits. [See the assumption section of the ICR
(page 36), which specifies that ``[a]ll sources with issued permits
(including those covered by general permits) will report monitoring
data semi-annually and compliance certifications annually.''] Also, the
2004 ICR is silent with respect to whether the remaining activities in
the table would be required of sources with general permits, but many
of them would apply to such sources because Sec. 70.6(d) requires
general permits to ``comply with all requirements applicable to other
part 70 permits.'' Certain of these remaining activities may be
streamlined or simplified for sources with general permits, compared to
sources with standard permits, but the ICR does not provide different
burden hour estimates to acknowledge these differences. For example,
sources with general permits would have to prepare an initial permit
application when they apply for coverage under the general permit,
consistent with Sec. 70.6(d)(2), but the ICR lists the activity of
``prepare application'' at 300 hours per source per year, without
estimating the potential reduction in burdens and costs that may occur
through streamlined permit applications for general permits. Although
the information in the 2004 ICR is more detailed, our analysis for the
final rule results in the same conclusion as our review of the 2000 ICR
for the proposal: That title V costs would be somewhat lower for
sources with general permits, compared to sources with standard
permits. Thus, the view of the commenter that title V costs would not
be significant for area sources with general permits is not supported
by the 2004 ICR.
Another commenter criticized our reference in the proposal of the
$7,700 average cost estimate for title V sources, taken from the 2000
ICR, because that value reflects an average from among all sources,
including the biggest industrial facilities in the country, and the
costs to a smaller source obtaining either an individual or general
permit should be less. In response, EPA agrees that costs for area
sources are likely to be lower than the average cost of issuing all
title V permits to all sources, for the reasons indicated by the
commenter. EPA referenced the average cost of title V for all sources
in the proposal because the cost estimates of the ICRs are the best
estimates of title V costs available, even though they suffer from the
limitations noted by the commenter. EPA's assessment of costs and
burdens of title V for area sources covered by today's rule assumed
that costs would be lower than the average for all sources, but still
significant in light of the characteristics of the area sources. The
2004 ICR estimates average annual title V costs for all sources at
$7,300, and it also does not provide all the information one would need
to determine specific costs for area sources, whether they have general
or standard permits.
Each ICR developed by EPA is based on the best information
available to the Agency at the time it is prepared, such that more
realistic estimates of burdens and costs for title V sources in general
would be found in more recent ICRs, as implementation experience is
gained. In addition, each ICR is approved by OMB for a set period of
time in the future (typically three years), until the next ICR is
approved, or the current ICR is extended.
EPA relied to some extent on the information in the ICRs for this
rulemaking because it is the best information available on title V
burdens and costs and no one submitted any better information to
analyze title V burdens and costs for these area sources. EPA has
conducted outreach and provided a 60-day public comment period to
collect information on the costs and burdens for these sources for this
rulemaking, and we provided a similar opportunity for the current ICR.
No one submitted, or cited to, any more accurate and complete cost
estimates for general permits under title V than those available to
EPA. See the notice of March 23, 2004 (69 FR 13524) soliciting comment
on the current ICR (Attachment 1 of the current ICR).

IX. Effective Date of Today's Final Rule Under the Administrative
Procedure Act

Section 553(d) of the Administrative Procedure Act (APA) generally
provides that rules may not take effect earlier than 30 days after they
are published in the Federal Register. However, section 553(d)(1) of
the APA, provides that a substantive rule which grants or recognizes an
exemption or relieves a restriction, may take effect earlier. Today's
final rule grants an exemption from title V permitting requirements for
a large number of area sources, so we make this final rule effective
immediately.

X. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether a regulatory action is ``significant'' and therefore
subject to Office of Management and Budget (OMB) review and the
requirements of the Executive Order. The Order defines a ``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,
adversely affecting in a material way the economy, a sector of the
economy,

[[Page 75343]]

productivity, competition, jobs, the environment, public health or
safety in 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 entitlement, grants,
user fees, or loan programs of 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.
Under Executive Order 12866, it has been determined that this rule
is a ``significant regulatory action'' because it raises important
legal and policy issues. As such, this rule was submitted to OMB for
review. Because this rule exempts area sources that would be subject to
title V requirements absent this final rule, this final rule reduces
burdens on area sources, and thus it is not economically significant.
Also, area sources subject to the secondary lead NESHAP are already
subject to title V (since their earlier deferral has expired) and this
final rule does not change this, so this final rule does not change
burdens for them. The final rule does not impose any burdens and
therefore a detailed economic analysis is unnecessary.

B. Paperwork Reduction Act

This action does not impose any new information collection burden.
Instead, it reduces such burdens by exempting a large number of area
sources from title V requirements. However, the information collection
requirements in the existing regulations (parts 70 and 71) were
previously approved by OMB under the requirements of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. The existing ICR for part 70 is
assigned EPA ICR number 1587.06 and OMB control number 2060-0243; for
part 71, the EPA ICR number is 1713.05 and the OMB control number is
2060-0336. A copy of the OMB approved Information Collection Request
(ICR) may be obtained from Susan Auby, Collection Strategies Division;
U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave.,
NW., Washington, DC 20004 or by calling (202) 566-1672. 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 in 40 CFR are listed in
40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

The RFA generally requires an Agency to conduct a regulatory
flexibility analysis of any rule subject to notice and comment
requirements 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 not-for-profit
enterprises, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business that meets
the Small Business Administration size standards for small businesses
found in 13 CFR 121.201; (2) a small governmental jurisdiction that is
a government of a city, country, 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 final rule on
small entities, I certify 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 rule on small entities.'' 5 U.S.C. 603 and 604.
Thus, an agency may certify 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.
This rule reduces economic impacts on small entities by exempting
certain categories of ``non-major'' industrial sources from the
permitting requirements under title V of the Clean Air Act (Act). These
sources tend to be smaller businesses and there are estimated at up to
38,000 small entities. They are currently subject to title V permitting
(40 CFR parts 70 and 71) under previous rulemaking actions, and they
will remain subject to these requirements until we exempt them. We have
therefore concluded that today's final rule will relieve regulatory
burden for these affected small entities.

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, 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 to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating a rule for which a written statement is
needed, section 205 of the UMRA generally requires 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 where they are inconsistent with applicable law. Moreover,
section 205 allows 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 EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, EPA must have developed
under section 203 of the UMRA a small government agency plan. The plan
must provide for notifying potentially affected small governments,
enabling officials of affected small governments to have meaningful and
timely input in the development of our regulatory proposals with
significant federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
Today's rule contains no federal mandates under the regulatory
provisions of title II of the UMRA for

[[Page 75344]]

State, local, or tribal governments or the private sector. Today's
final rule imposes no enforceable duty on any State, local or tribal
governments or the private sector. This final rule exempts a large
number of sources from title V operating permit programs, which will
reduce the duties government entities with title V programs would be
required to perform and it will remove the requirement for many private
sector entities to obtain operating permits under title V programs.
Therefore, today's action is not subject to the requirements of
sections 202 and 205 of the UMRA.
In addition, EPA has determined that this final rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. This final rule exempts a large number of area
sources from the requirement to obtain operating permits under title V.
As such it also removes the requirements for small governments with
approved operating permit programs to issue permits to those area
sources. Therefore, today's final rule is not subject to the
requirements of section 203 of the UMRA.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires 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, or on the distribution of power and
responsibilities among the various levels of government.''
This final rule 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. Today's rule will not impose any
new requirements under title V of the Clean Air Act, and it will not
affect the ability of States to issue non-title V permits to these area
sources, if they so choose. Accordingly, it will not substantially
alter the overall relationship or distribution of powers between
governments for the part 70 and part 71 operating permits programs.
Thus, Executive Order 13132 does not apply to this final rule.

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

Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments (65 FR 67249, November 6, 2000), requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.'' ``Policies that have tribal implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the federal government and the Indian tribes, or
on the distribution of power and responsibilities between the federal
government and Indian tribes.''
This final rule does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, 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.
Today's action does not significantly or uniquely affect the
communities of Indian tribal governments. As discussed above, today's
action imposes no new requirements on Indian tribal governments under
title V of the Clean Air Act. Accordingly, the requirements of
Executive Order 13175 do not apply to this rule.

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

Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (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 EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency 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 Agency.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866 and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

This final rule is not a ``significant energy action,'' as defined
in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (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. This
final rule exempts a large number of small sources from the obligation
to obtain an operating permit under title V of the Clean Air Act and is
not likely to have any adverse energy effects.

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, Section 12(d) (15 U.S.C.
272 note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
The NTTAA does not apply to this final rule because it does not
involve technical standards. Therefore, EPA did not consider the use of
any voluntary consensus standards.

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. We will submit a report containing this 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 rule in the Federal Register. A ``major rule''
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as

[[Page 75345]]

defined by 5 U.S.C. Sec. 804(2). This rule will be effective December
19, 2005.

List of Subjects

40 CFR Part 63

Administrative practice and procedure, Air pollution control,
Hazardous substances, Intergovernmental relations, Reporting and
recordkeeping requirements.

40 CFR Part 70

Administrative practice and procedure, Air pollution control,
Intergovernmental relations, Reporting and recordkeeping requirements.

40 CFR Part 71

Administrative practice and procedure, Air pollution control,
Reporting and recordkeeping requirements.

Dated: December 9, 2005.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as set forth below.

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 M--[Amended]

0
2. Section 63.320 is amended by revising paragraph (k) to read as
follows:

Sec. 63.320 Applicability.

* * * * *
(k) If you are an owner or operator of an area source subject to
this subpart, you are exempt from the obligation to obtain a permit
under 40 CFR part 70 or 71, provided you are not required to obtain a
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your
status as an area source under this subpart. Notwithstanding the
previous sentence, you must continue to comply with the provisions of
this subpart applicable to area sources.

Subpart N--[Amended]

0
3. Section 63.340 is amended by revising paragraph (e) to read as
follows:

Sec. 63.340 Applicability and designation of source.

* * * * *
(e) If you are an owner or operator of an area source subject to
this subpart, you are exempt from the obligation to obtain a permit
under 40 CFR part 70 or 71, provided you are not required to obtain a
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your
status as an area source under this subpart. Notwithstanding the
previous sentence, you must continue to comply with the provisions of
this subpart applicable to area sources.

0
4. Table 1 to Subpart N is amended by revising the entry for Sec.
63.1(c)(2) to read as follows:

Table 1 to Subpart N of Part 63.--General Provisions Applicability to
Subpart N
------------------------------------------------------------------------
Applies to
General provisions reference subpart N Comment
------------------------------------------------------------------------

* * * * * * *
Sec. 63.1(c)(2)............. Yes.............. Sec. 63.340(e) of
Subpart N exempts
area sources from
the obligation to
obtain Title V
operating permits.

* * * * * * *
------------------------------------------------------------------------

Subpart O--[Amended]

0
5. Section 63.360 is amended by:
0
a. Revising the entry for Sec. 63.1(c)(2) in Table 1; and
0
b. Revising paragraph (f).
The revisions read as follows:

Sec. 63.360 Applicability.

* * * * *

Table 1 of Section 63.360.--General Provisions Applicability to Subpart O
----------------------------------------------------------------------------------------------------------------
Applies to sources
Reference Applies to using 10 using 1 to 10 tons in Comment
tons in subpart O a subpart O a
----------------------------------------------------------------------------------------------------------------

* * * * * * *
63.1(c)(2)......................... Yes Sec. 63.360(f) exempts
area sources subject to
this subpart from the
obligation to obtain Title
V operating permits.

* * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
(f) If you are an owner or operator of an area source subject to
this subpart, you are exempt from the obligation to obtain a permit
under 40 CFR part 70 or 71, provided you are not required to obtain a
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your
status as an area source under this subpart. Notwithstanding the
previous sentence, you must continue to comply with the provisions of
this subpart applicable to area sources.
* * * * *

Subpart T--[Amended]

0
6. Section 63.460 is amended by adding paragraph (h) to read as
follows:

Sec. 63.460 Applicability and designation of source.

* * * * *
(h) If you are an owner or operator of an area source subject to
this subpart, you are exempt from the obligation to obtain a permit
under 40 CFR part 70 or 71, provided you are not required to obtain a
permit under 40 CFR 70.3(a) or 71.3(a) for a reason other than your

[[Page 75346]]

status as an area source under this subpart. Notwithstanding the
previous sentence, you must continue to comply with the provisions of
this subpart applicable to area sources.

Sec. 63.468 [Amended]

0
7. Section 63.468 is amended by removing and reserving paragraph (j).
0
8. Appendix B to Subpart T is amended by revising the entry for Sec.
63.1(c)(2) to read as follows:

Appendix B to Subpart T of Part 63.--General Provisions Applicability to Subpart T
----------------------------------------------------------------------------------------------------------------
Applies to subpart T
Reference ------------------------------------------------ Comment
BCC BVI
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Sec. 63.1(c)(2).................. Yes................... Yes................... Subpart T, Sec. 63.460(h)
exempts area sources
subject to this subpart
from the obligation to
obtain Title V operating
permits.

* * * * * * *
----------------------------------------------------------------------------------------------------------------

Subpart RRR--[Amended]

0
9. Section 63.1500 is amended by revising paragraph (e) to read as
follows:

Sec. 63.1500 Applicability.

0
10. Appendix A to Subpart RRR is amended by revising the entry for
Sec. 63.1(c)(2) to read as follows:

Appendix A to Subpart RRR of Part 63.--General Provisions Applicability to Subpart RRR
----------------------------------------------------------------------------------------------------------------
Citation Requirement Applies to RRR Comment
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Sec. 63.1(c)(2).................. ...................... Yes................... Sec. 63.1500(e) exempts
area sources subject to
this subpart from the
obligation to obtain Title
V operating permits.

* * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 70--[AMENDED]

0
1. The authority citation for part 70 continues to read as follows:

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

0
2. Section 70.3 is amended as follows:
0
a. By revising paragraph (a) introductory text.
0
b. By removing and reserving paragraph (b)(3).
0
c. By revising paragraph (b)(4) introductory text.

Sec. 70.3 Applicability.

(a) Part 70 sources. A State program with whole or partial approval
under this part must provide for permitting of the following sources:
* * * * *
(b) * * *
(4) The following source categories are exempted from the
obligation to obtain a part 70 permit:
* * * * *

PART 71--[AMENDED]

0
1. The authority citation for part 71 continues to read as follows:

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

Sec. 71.3 [Amended]

0
2. Section 71.3 is amended by removing and reserving paragraph (b)(3).

[FR Doc. 05-24072 Filed 12-16-05; 8:45 am]

BILLING CODE 6560-50-P