[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Rules and Regulations]
[Pages 522-551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30498]
[[Page 521]]
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Part II
Environmental Protection Agency
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40 CFR Part 63
National Emission Standards for Hazardous Air Pollutants: Area Source
Standards for Prepared Feeds Manufacturing; Final Rule
Federal Register / Vol. 75, No. 2 / Tuesday, January 5, 2010 / Rules
and Regulations
[[Page 522]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2008-0080; FRL-9095-2]
RIN 2060-AO98
National Emission Standards for Hazardous Air Pollutants: Area
Source Standards for Prepared Feeds Manufacturing
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is issuing national emission standards for control of
hazardous air pollutants (HAP) for the Prepared Feeds Manufacturing
area source category. The emissions standards for new and existing
sources are based on EPA's determination as to what constitutes the
generally available control technology or management practices for the
area source category.
DATES: This final rule is effective on January 5, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2008-0080. All documents in the docket are listed in the
Federal Docket Management System index at http://www.regulations.gov.index. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, will
be publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the EPA Docket Center, Public
Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Ms. Jan King, Outreach and Information
Division, Office of Air Quality Planning and Standards (C404-05), U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina
27711, telephone number: (919) 541-5665; fax number: (919) 541-7674; e-
mail address: [email protected].
SUPPLEMENTARY INFORMATION: The supplementary information in this
preamble is organized as follows:
I. General Information
A. Does This Action Apply to Me?
B. Where Can I Get a Copy of This Document?
C. Judicial Review
II. Background Information for This Final Rule
III. Summary of Changes Since Proposal
A. Applicability
B. Standards and Compliance Requirements
C. Reporting and Recordkeeping Requirements
D. Definitions
IV. Summary of Final Standards
A. What Are the Applicability Provisions and Compliance Dates?
B. What Are the Final Standards?
C. What Are the Compliance Requirements?
D. What Are the Notification, Recordkeeping, and Reporting
Requirements?
V. Summary of Comments and Responses
A. Rulemaking Process
B. Applicability
C. Emission Standards
D. Inspections and Compliance Provisions
E. Reporting and Recordkeeping Requirements
F. Definitions
G. Impacts Assessment
H. Title V Requirements
VI. Impacts of the Final Standards
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. General Information
A. Does This Action Apply to Me?
The regulated categories and entities potentially affected by the
final standards are prepared feeds manufacturers who add chromium
compounds or manganese compounds to their product. In general, the
facilities potentially affected by the rule are covered under the North
American Industrial Classification System (NAICS) code listed in the
following table.
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Examples of regulated
Category NAICS code \1\ entities
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Industry:
Other Animal Foods 311119 Animal feeds, prepared
Manufacturing. (except dog and cat),
manufacturing.
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\1\ North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. To determine whether your facility would be regulated by this
action, you should examine the applicability criteria in 40 CFR
63.11619 of subpart DDDDDDD (NESHAP for Area Sources: Prepared Feeds
Manufacturing). If you have any questions regarding the applicability
of this action to a particular entity, consult either the air permit
authority for the entity or your EPA regional representative as listed
in 40 CFR 63.13 of subpart A (General Provisions).
B. Where Can I Get a Copy of This Document?
In addition to being available in the docket, an electronic copy of
this final action will also be available on the Worldwide Web (WWW)
through EPA's Technology Transfer Network (TTN). A copy of this final
action will be posted on the TTN's policy and guidance page for newly
proposed or promulgated rules at the following address: http://www.epa.gov/ttn/oarpg. The TTN provides information and technology
exchange in various areas of air pollution control.
C. Judicial Review
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of this final rule is available only by filing a petition for review in
the United States Court of Appeals for the District of Columbia Circuit
by March 8, 2010. Under section 307(b)(2) of the CAA, the requirements
established by this final rule may not be challenged separately in any
civil or criminal proceedings
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brought by EPA to enforce these requirements.
Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review.'' This section also
provides a mechanism for EPA to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to EPA that it was impracticable to raise such objection within [the
period for public comment] or if the grounds for such objection arose
after the period for public comment (but within the time specified for
judicial review) and if such objection is of central relevance to the
outcome of the rule.'' Any person seeking to make such a demonstration
to us should submit a Petition for Reconsideration to the Office of the
Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200
Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the
person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT
section, and the Associate General Counsel for the Air and Radiation
Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200
Pennsylvania Ave., NW., Washington, DC 20460.
II. Background Information for This Final Rule
Section 112(d) of the CAA requires EPA to establish national
emission standards for hazardous air pollutants (NESHAP) for both major
and area sources of HAP that are listed for regulation under CAA
section 112(c). A major source emits or has the potential to emit 10
tons per year (tpy) or more of any single HAP or 25 tpy or more of any
combination of HAP. An area source is a stationary source that is not a
major source.
Section 112(k)(3)(B) of the CAA calls for EPA to identify at least
30 HAP which, as the result of emissions from area sources, pose the
greatest threat to public health in the largest number of urban areas.
EPA implemented this provision in 1999 in the Integrated Urban Air
Toxics Strategy, (64 FR 38715, July 19, 1999). Specifically, in the
Strategy, EPA identified 30 HAP that pose the greatest potential health
threat in urban areas, and these HAP are referred to as the ``30 urban
HAP.'' Section 112(c)(3) requires EPA to list sufficient categories or
subcategories of area sources to ensure that area sources representing
90 percent of the emissions of the 30 urban HAP are subject to
regulation. We implemented these requirements through the Integrated
Urban Air Toxics Strategy (64 FR 38715, July 19, 1999). A primary goal
of the Strategy is to achieve a 75 percent reduction in cancer
incidence attributable to HAP emitted from stationary sources.
Under CAA section 112(d)(5), we may elect to promulgate standards
or requirements for area sources ``which provide for the use of
generally available control technologies or management practices (GACT)
by such sources to reduce emissions of hazardous air pollutants.''
Additional information on GACT is found in the Senate report on the
legislation (Senate Report Number 101-228, December 20, 1989), which
describes GACT as:
* * * methods, practices and techniques which are commercially
available and appropriate for application by the sources in the
category considering economic impacts and the technical capabilities
of the firms to operate and maintain the emissions control systems.
Consistent with the legislative history, we can consider costs and
economic impacts in determining GACT. This is particularly important
when developing regulations for source categories, like this one, that
have many small businesses, as defined by the Small Business
Administration.
Determining what constitutes GACT involves considering the control
technologies and management practices that are generally available to
the area sources in the source category. We also consider the standards
applicable to major sources in the same industrial sector to determine
if the control technologies and management practices are transferable
and generally available to area sources. In appropriate circumstances,
we may also consider technologies and practices at area and major
sources in similar categories to determine whether such technologies
and practices could be considered generally available for the area
source category at issue. Finally, as noted above, in determining GACT
for a particular area source category, we consider the costs and
economic impacts of available control technologies and management
practices on that category.
We are promulgating these national emission standards in response
to a court-ordered deadline that requires EPA to sign final rules
establishing emission standards for two source categories listed
pursuant to section 112(c)(3) and (k) by December 16, 2009 (Sierra Club
v. Johnson, no. 01-1537, D.D.C., March 2006). We intend to publish a
separate rulemaking in the Federal Register for the other source
category due in December 2009.
III. Summary of Changes Since Proposal
This final rule contains several changes to the proposed rule as a
result of public comments. The following sections present a summary of
the changes to the proposed rule. We explain the reasons for these
changes in detail in the summary of comments and responses (section V
of this preamble).
A. Applicability
The final rule applies to any prepared feeds manufacturing facility
that produces animal feed products (not including cat and dog feed
products) and uses a material containing chromium or a material
containing manganese. In light of questions raised concerning the scope
of sources covered by this area source rule, we revised several
definitions in the rule and added other definitions. The prepared feeds
manufacturing area source category is identified by NAICS code 311119,
``Other Animal Food Manufacturing.'' This NAICS code includes
establishments primarily engaged in manufacturing animal feed (except
dog and cat) from ingredients, such as grains, oilseed mill products,
and meat products. The NAICS definition also contains a list of over 40
specific animal feed processes that are included in the NAICS code.
First, we added a definition of ``animal feed,'' and defined that term
to include all of the products in NAICS code 311119. This definition
also clarifies that dog and cat feed products are not considered animal
feed, consistent with the NAICS definition. The final rule, therefore,
applies not only to ``traditional'' feed products, but also to animal
feed ingredients, supplements, premixes, concentrates, and other
products included in the definition of NAICS code 311119. Second, we
revised the definition of a ``prepared feed manufacturing facility'' to
include the concept of ``primarily engaged.'' To meet the definition of
a prepared feeds manufacturing facility, a facility must be ``primarily
engaged'' in the production of animal feed. We identified that
primarily engaged in the production of animal feed means that the
animal feed makes up at least half of the facility's annual production
of all products. The definition of prepared feed manufacturing facility
explicitly states that facilities primarily engaged in feeding animals
are not prepared feed manufacturing facilities. We also added
definitions for ``a material containing chromium'' and ``a material
containing
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manganese.'' ``A material containing chromium'' is defined as any
material that contains chromium in an amount greater than 0.1 percent
by weight, and ``a material containing manganese'' is defined as any
material that contains manganese in an amount greater than 1 percent by
weight. We added a requirement to provide for the situation where a
facility starts using a material containing chromium or manganese after
the applicable compliance date. Specifically, facilities that are not
subject to the rule but start adding materials containing chromium or
manganese in the future become subject to the rule at the time they
begin adding these HAP. While the rule does not apply to prepared feeds
manufacturing facilities that do not use any materials containing
chromium or manganese, we added provisions that make it clear that
facilities that stop using all materials containing chromium and
manganese at a later date are no longer subject to the rule.
B. Standards and Compliance Requirements
The final rule retains the specific housekeeping management
practices discussed in the proposed rule. Those management practices
must reduce dust (use industrial vacuum, remove dust from walls and
ledges, keep doors shut). The only change we made to these provisions
was to require that doors be kept shut except during normal ingress and
egress, rather than the proposed requirement to keep doors shut ``as
practicable.''
The final rule requires that a device be installed and operated at
the loadout end of each bulk loader that loads products containing
chromium or manganese to lessen fugitive emissions by reducing the
distance between the loading arm and the truck or railcar. This is a
change from the proposed requirements, which specified that ``drop
filter socks'' be used on bulk loaders.
The final rule requires that emissions from the pelleting process
at facilities with an average daily feed production level exceeding 50
tons per day (tpd) be collected and routed to a cyclone designed to
achieve 95 percent or greater reduction in particulate matter (PM)
emissions. This is a change from the proposed rule, which required a
cyclone designed to achieve a 95 percent reduction in particulate
matter emissions less than 10 microns in diameter (PM10). To
demonstrate that your cyclone is designed to achieve a 95 percent
reduction in PM emissions, the final rule provides three different
options: (1) Manufacturer's specifications certifying that the cyclone
is designed to achieve 95 percent PM reduction, (2) certification by a
professional engineer or responsible official that the cyclone is
designed to achieve a 95 percent reduction in PM emissions, or (3) a
Method 5 performance test to demonstrate that the cyclone can achieve a
95 percent reduction in PM emissions.
The proposed rule required that the pressure drop across the
cyclone be monitored to demonstrate that the device was in good
condition and operating properly. The final rule expands the monitoring
options to include other measures that indicate proper flow through the
cyclone. Specifically, the final rule allows monitoring of inlet flow
rate, inlet velocity, pressure drop, or fan amperage.
C. Reporting and Recordkeeping Requirements
The final rule requires that all sources that have an average daily
feed production level of 50 tpd or less to keep production records.
These facilities must also submit their initial average daily feed
production level in the Notification of Compliance Status report.
We added recordkeeping and reporting requirements associated with
the new options on demonstrating cyclone performance efficiency
(certification by professional engineer or responsible official, or
testing). We also added provisions that require facilities that
discontinue the use of all materials containing chromium and manganese
to notify the Agency that they are no longer subject to the rule.
D. Definitions
As discussed above, definitions for animal feed, a material
containing chromium, a material containing manganese, and prepared
feeds manufacturing facility were added or modified. The definition of
filter drop sock was removed, as this term is no longer used in the
final rule.
IV. Summary of Final Standards
A. What Are the Applicability Provisions and Compliance Dates?
Subpart DDDDDDD standards apply to each new or existing prepared
feeds manufacturing facility that is an area source and uses a material
containing chromium or a material containing manganese. A prepared
feeds manufacturing facility is a facility where animal feed (as
defined in the rule) makes up at least half of the facility's annual
production of all products. A material containing chromium is any
material that contains chromium in an amount greater than 0.1 percent
by weight, and a material containing manganese is any material that
contains manganese in an amount greater than 1 percent by weight.
All existing area source facilities subject to this rule are
required to comply with the rule requirements no later than January 5,
2012. A new source is any affected source that commenced construction
or reconstruction after July 27, 2009. All new sources are required to
comply with the rule requirements by January 5, 2010 or upon startup,
whichever is later.
Prepared feeds manufacturing facilities that do not use any
materials containing chromium or manganese are not subject to this
rule. If a facility starts using a material containing chromium or
manganese after the applicable compliance date, they will be required
to comply at the time that they start using such materials. Also, if a
facility stops using all materials containing chromium and manganese,
they are no longer subject to the rule and should notify EPA or the
delegated authority of the change.
B. What Are the Final Standards?
The final requirements, which apply to all new and existing
sources, consist of equipment standards and management practices. There
are two general management practices that apply in all areas where
materials containing chromium or manganese are stored, used, or
handled. The first is to perform housekeeping measures to minimize
excess dust that could contain chromium or manganese. The specific
measures required by the rule are: (1) Use either an industrial vacuum
system or manual sweeping to reduce the amount of dust, (2) at least
once per month, remove dust from walls, ledges, and equipment using low
pressure air or by other means, and then sweep or vacuum the area, and
(3) keep doors shut except during normal ingress and egress.
The second general management practice is the requirement to
maintain and operate all process equipment that stores, processes, or
contains chromium or manganese in accordance with manufacturers'
specifications and in a manner to minimize dust creation.
There are also requirements that are specific to certain areas of
the plant or processes at all new and existing sources. These
requirements are:
For the storage area, all raw materials containing
chromium or manganese must be stored in closed containers.
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For mixing operations, materials containing chromium or
manganese must be added to the mixer in a manner to reduce emissions,
and the mixer must be covered at all times when mixing is occurring,
except when materials are being added.
For bulk loading processes where prepared feeds products
containing chromium or manganese are loaded into trucks or railcars,
you must use a device at the loadout end of each bulk loader to lessen
fugitive emissions by reducing the distance between the loading arm and
the truck or railcar.
In addition to the above requirements that apply to all facilities,
new and existing facilities with average daily feed production levels
exceeding 50 tpd are required to install and operate a cyclone to
reduce emissions from pelleting and pellet cooling operations. The
average daily feed production level means the average amount of
prepared feed product produced each operating day over an annual
period. The initial determination of the average daily feed production
level is based on the one-year period prior to the compliance date for
existing sources, or the design rate for new sources. Subsequent
average daily feed production levels are then determined annually and
are based on the amount of animal feed product produced in the calendar
year divided by the number of days in which the production processes
were in operation. Facilities with average daily feed production levels
of 50 tpd or less are required to submit production information in
their Notification of Compliance Status report and keep records
documenting their animal feed production levels.
For the pelleting operations at facilities with daily pelleting
production levels exceeding 50 tpd, the final rule requires that PM
emissions be collected and routed to a cyclone that is designed to
achieve 95 percent or greater reduction in PM. There are three ways you
can demonstrate that your cyclone is designed to achieve 95 percent
reduction in PM: (1) Manufacturer specifications that certifying the
cyclone is designed to achieve 95 percent reduction in PM emissions;
(2) certification by a professional engineer or responsible official
that the cyclone is designed to achieve a 95 or greater percent
reduction in PM emissions; or (3) a one-time Method 5 performance test
to demonstrate that the cyclone can achieve a 95 percent or greater
reduction in PM emissions.
In addition, the final rule requires that you establish an
operating parameter range that indicates proper operation of the
cyclone and then monitor this parameter at least once per day. The
specific parameters allowed to be monitored are inlet flow rate, inlet
velocity, pressure drop, or fan amperage. The range that represents
proper operation of the cyclone must be provided by the manufacturer,
determined as part of the engineering calculations demonstrating the
design efficiency, or determined based on monitoring conducted during
the performance test.
The final rule also requires that you maintain the cyclone in
accordance with manufacturer specifications. If manufacturer
specifications are not available, you must develop and follow standard
maintenance procedures.
C. What Are the Compliance Requirements?
For all new and existing sources, compliance with the final
regulation is demonstrated through installation of the required
equipment, adherence to the management practices specified in the rule,
and keeping the required records and submitting the required
notifications and reports described below.
To ensure that the cyclone for the pelleting and pellet cooling
process is operated properly at facilities with average daily feed
production levels exceeding 50 tpd, the final rule requires that the
cyclone be inspected quarterly for corrosion, erosion, or any other
damage that could result in air in-leakage, and that the inlet flow
rate, inlet velocity, pressure drop, or fan amperage be monitored and
recorded daily to ensure that it is being operated in accordance with
specified proper operating range.
The final rule also requires that the devices required at the
loadout end of a bulk loader to lessen fugitive emissions by containing
the unloaded product within the device be inspected monthly to ensure
that they are in good condition.
D. What Are the Notification, Recordkeeping, and Reporting
Requirements?
All new and existing sources are required to comply with some
requirements of the General Provisions (40 CFR part 63, subpart A),
which are identified in Table 1 of the final rule. The General
Provisions include specific requirements for notifications,
recordkeeping, and reporting. Each facility is required to submit an
Initial Notification and a one-time Notification of Compliance Status
according to the requirements in 40 CFR 63.9 in the General Provisions.
The Initial Notification, which is required to be submitted by affected
sources not later than May 5, 2010, or 120 days after you become
subject to the rule, whichever is later, must contain basic information
about the facility and its operations. The Notification of Compliance
Status, which is required to be submitted 120 days after the compliance
date, must contain a statement that the source has complied with all
relevant standards. The Notification of Compliance Status also must
include the inlet flow rate, inlet velocity, pressure drop, or fan
amperage range that constitutes proper operation of the cyclone used to
reduce emissions from the pelleting and pellet cooling operations.
Facilities not required to install and operate cyclones on their
pelleting operations are required to submit documentation of their
initial average daily feed production level.
The final rule requires that records be kept of all notifications
of compliance. The rule requires that records be kept documenting each
inspection of a cyclone and each inspection of a device at the loadout
end of a bulk loader. It also requires that the daily reading of
cyclone inlet flow rate, inlet velocity, pressure drop, or fan amperage
be recorded. In addition, records are required of any actions taken in
response to findings of the inspections or monitoring results outside
the proper operating range. Facilities with average daily feed
production levels of 50 tpd or less are required to keep records of the
annual production and the number of days of operation.
The final rule includes the requirement to prepare, by March 1 of
each year, and submit an annual compliance certification, a copy of
which will need to be maintained on site. This report must contain a
statement of whether the source has complied with all relevant
standards and other requirements of the final rule. If a deviation from
the standard occurred during the annual reporting period, or if an
instance occurred where the cyclone inlet flow rate, inlet velocity,
pressure drop, or fan amperage was outside of the proper operating
range submitted in the Notification of Compliance Status report, this
information is required to be included in the annual report and the
report needs to be submitted to the EPA Administrator or the designated
authority. All records are required to be maintained in a form suitable
and readily available for expeditious review, and kept for at least
five years, the first two of which must be onsite.
[[Page 526]]
V. Summary of Comments and Responses
EPA received 16 public comment letters on the proposed rule. Five
of these comment letters were requests for an extension to the comment
period,\1\ leaving 11 comment letters that provided comments on the
proposed rule. These comments were received from industry
representatives, trade associations, state agencies, and an
environmental organization. Sections V.A through V.G of this preamble
provide responses to the public comments received on the proposed
NESHAP.
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\1\ We denied the requests for extension by letter, copies of
which are in the docket. These letters explain the reasons for the
denial. These reasons are also provided in section V.A.
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A. Rulemaking Process
Comment: Several commenters requested that the comment period be
extended by 90 days. The commenters had concerns about the inputs to
the impacts analysis and requested additional time to collect and
provide factual information to the agency about the proposed rule's
provisions and their potential impact.
Response: Due to a court-ordered deadline for promulgation of this
rule (which at the time of proposal was November 16, 2009), we were
unable to extend the comment period in response to these requests.
Moreover, CAA section 307(d) requires that EPA provide a minimum of 30
days for public comment, and we provided that period for public
comment. Furthermore, consistent with section 307(d), the proposed rule
provided the public an opportunity to request a public hearing, and no
party requested such a hearing. See 307(d)(5) (record remains open 30
days after the date of the public hearing).
Comment: One commenter expressed their concerns about the process
that EPA used to develop its proposed national emission standard for
prepared feeds manufacturers. The commenter believes that EPA did not
provide ample due process in developing the proposed rule. The
commenter pointed out that they requested a 90-day extension to the
proposed rule's comment period so that accurate information could be
obtained to respond to the assumptions and estimates made by the
agency. In this request, the commenter indicated that they highlighted
five major areas of the proposed rule in which they believed EPA lacked
critical information that directly affects the provisions within the
proposed rule and its impact on prepared feeds manufacturers. Since EPA
denied their request for extension of the comment period, the commenter
indicated that they were left with what they believe was an
inappropriately short 30-day comment period to respond to a proposed
rule that, if promulgated as drafted, would have very significant
operational and economic impacts on prepared feeds manufacturers. While
cognizant of EPA's court-ordered mandate to issue this national
emission standard, the commenter believes that the agency's actions
related to gathering industry information, timing of the proposed rule
and its response to their request for extension of the comment period
are not indicative of a constructive or meaningful rulemaking process.
Response: EPA complied with the requirements of 307(d) during this
rulemaking process. We engaged industry prior to proposal by meeting
and by telephone to discuss our rulemaking process and the information
we intended to obtain through the 114 survey. EPA strongly disagrees
with the commenters' assertion that EPA did not provide ample due
process in developing the rule.
CAA 307(d) requires EPA to publish a notice of proposed rulemaking
and provide a minimum of 30 days for the public to comment on the
proposal, and EPA complied with this requirement. EPA also identified a
date for public hearing, if such hearing was requested by any member of
the public. No member of the public requested a hearing, and therefore,
a public hearing was not held.
In conclusion, we believe that lines of communication with the
industry were well established and open throughout the rulemaking
process, and that the commenters had ample opportunity to participate.
B. Applicability
Comment: Two commenters stated that the rule should clarify that a
prepared feeds manufacturing facility is a facility that produces
feeds, and not a facility that manufactures feed ingredients. One of
the commenters explained that although feed ingredient companies may
predominantly manufacture ingredients for animal feed and be classified
under the NAICS Code defining the Prepared Feeds Manufacturing source
category (NAICS 311119), they may also produce feed ingredients for
human and/or companion animal consumption.
Response: EPA would like to clarify that, in addition to facilities
that produce animal feed, facilities that manufacture feed ingredients
are part of the prepared feeds manufacturing area source category. The
category was identified in the original section 112(k) emissions
inventory through the use of the Standard Industrial Classification
(SIC) code 2048, Prepared Feeds Manufacturing, except cat and dog feed.
As noted by the commenter, the NAICS code that covers this area source
category is 311119, which is equivalent to the SIC code used in the
original source category definition. The SIC/NAICS code for the source
category includes many segments of the prepared feed industry,
including the production of feed ingredients. Specifically, in addition
to many other segments of the industry, NAICS code 311119, and thus the
prepared feeds manufacturing area source category, includes:
Feed concentrates, animal, manufacturing;
Feed premixes, animal, manufacturing;
Feed supplements, animal (except cat, dog), manufacturing;
Micro and macro premixes, livestock, manufacturing;
Mineral feed supplements (except cat, dog) manufacturing;
and
Mineral supplements, animal (except cat, dog),
manufacturing.
Therefore, since facilities that manufacture feed ingredients are
subject to the rule, we did not make the change suggested by the
commenter. We did, however, make changes to the applicability
provisions and definitions to clarify the various segments of the
prepared feeds industry that are included in the source category and,
therefore, subject to the rule (provided they use chromium or
manganese). These changes include adding a definition of ``animal
feed,'' which includes a list of all the products included under NAICS
code 311119. While we recognize that chromium and manganese are not
used in the production of many of the animal feed products in the
definition, we believe that a complete listing eliminates the confusion
of what types of processes are included in the source category. We
would point out, however, that, even if a facility produces a listed
animal feed product (e.g., earthworm feed and bedding), it is not
subject to the rule if no chromium or manganese is used.
One of the commenters raised the issue of a facility that produces
a product covered by the rule along with other similar products that
would not be covered by the rule. Specifically, the commenter mentions
a facility that produces animal feed ingredients along with feed
ingredients for humans and/or cats and dogs. First, the NAICS code only
includes establishments ``primarily engaged in'' manufacturing animal
feed.
[[Page 527]]
We have revised the definition of ``prepared feed manufacturing
facility'' to incorporate this concept. Specifically, the final rule
contains the following definition.
Prepared feeds manufacturing facility means a facility that is
primarily engaged in manufacturing animal feed. A facility is
primarily engaged in manufacturing animal feed if the production of
animal feed comprises greater than 50 percent of the total
production of the facility on an annual basis. Facilities primarily
engaged in raising or feeding animals are not considered prepared
feeds manufacturing facilities.
Thus, a facility would be a prepared feeds manufacturing facility
subject to the rule if the animal feed ingredients (not including
ingredients for dog, cat, or human feed) make up more than half of its
production. In addition, the final rule specifies that an affected
source at a prepared feeds manufacturing facility only includes the
collection of equipment and activities necessary to produce animal feed
containing chromium or manganese. Therefore, if the ingredients for
human and/or dog and cat feed at a facility primarily engaged in
manufacturing animal feed were produced in equipment that is never used
to produce ``animal feed,'' those production processes would not be
part of the affected source and would not be subject to the
requirements in the rule. While not specifically mentioned by the
commenters, consideration of these applicability issues, along with
comments related to the number of facilities in the source category,
caused us to clarify that prepared feeds manufacturing at farms and
animal feed lots is not part of this source category. Facilities
``primarily engaged'' in raising or feeding animals are listed under
different NAICS codes (e.g., 112210--Hog and Pig Farming, 112112--
Cattle Feedlots, 112111--Beef Cattle Ranching and Farming) and were not
part of the sources that formed the basis for the listing of the
prepared feed manufacturing area source category.
Comment: Five commenters stated that the rule should only apply to
prepared feeds manufacturing facilities that use or emit chromium
compounds or manganese compounds above a specified threshold. The
commenters claimed that such an approach would focus attention on
facilities that are more significant emitters of chromium and manganese
and will avoid requiring extremely small facilities to comply with the
rule with little environmental benefit. The commenters suggested
several different threshold levels. One commenter recommended a
threshold based on established Superfund Amendments and Reauthorization
Act of 1986 (SARA) Tier II threshold quantities (10,000 pounds per
year), while another suggested 2,000 pounds per year based on levels
determined to be insignificant under the title V program. Another
commenter noted that Toxics Release Inventory (TRI) regulations require
a covered facility to report only if it manufactures or processes non-
exempt chromium and/or manganese compounds in quantities exceeding
25,000 pounds per year, and suggested that a threshold be established
at this 25,000 pounds per year level. Still another commenter suggested
a level of 1,000 pounds per day. One of the commenters recommended
that, if such a threshold is established, compounds having a
concentration of less than 1 percent of the chromium compounds or
manganese compounds need not be counted by a facility when determining
whether it has used a sufficient quantity to reach the threshold use
level that establishes whether a facility is subject to the rule's
provisions.
Response: Although several commenters advocated for a usage
threshold for chromium compounds and manganese compounds, below which a
facility would be exempt, we are not adopting any exemptions. Prepared
Feeds Manufacturing is one of the area source categories needed to meet
the section 112(c)(3) requirement that we subject to regulation, (i.e.,
area source categories representing 90 percent of the emissions of
chromium and manganese). We reviewed the listing decision for this area
source category and did not identify any information suggesting that
small sources were not included in the listing decision. As such, we do
not believe we can satisfy our requirement to regulate sources
representing 90 percent of the emissions of Prepared Feeds
Manufacturing urban HAP unless we subject all sources that emit those
HAP to the rule.
We recognize that the Prepared Feeds Manufacturing source category
is comprised of a large number of relatively small facilities. Although
area sources individually may be considered low-emitting sources,
collectively, they are not. The commenter's suggestion fails to address
the requirement of section 112(c)(3), and, as discussed above, we
previously determined that we need to subject the Prepared Feeds
Manufacturing area source category to regulations in order to meet the
requirement that EPA regulate area sources accounting for 90 percent of
the emissions of the 30 urban HAP.
Comment: One commenter suggested that the applicability be changed
to only include facilities that utilize pelletizing operations. The
commenter noted that this would more adequately match the original
group of prepared feeds manufacturers who were surveyed and those in
the same class. The commenter also pointed out that the pelleting and
pellet cooling process is the most significant source of pollutants, as
it is estimated to emit 90 percent or more of the total chromium and
manganese.
Response: The basis for the listing of the area source category was
not limited to emissions from pelleting. Thus, we conclude that the
applicability should remain as proposed.
C. Emission Standards
1. General
Comment: One commenter stated that EPA based the proposed standard
on erroneous and misguided assumptions and estimates of emissions of
chromium compounds and manganese compounds. This commenter had numerous
objections to the impacts analyses (see section V.G) and how these
analyses impacted EPA's decision to regulate this category and specific
emission points.
Response: In section 112(c)(3) of the CAA, EPA is required to list
``sufficient categories or subcategories of area sources to ensure that
area source representing 90 percent of the emissions of the 30 urban
HAP are subject to regulation.'' An area source emissions inventory was
compiled for each of the 30 urban HAP and the area source categories
identified that comprised 90 percent of the emissions of each of these
HAP. For the prepared feeds manufacturing source category, this
inventory was based on data from the 1990 TRI. The TRI is an EPA
inventory of annual emissions self-reported by industry. Based on this
information, EPA determined that chromium compounds emissions and
manganese compounds emissions from prepared feeds manufacturing area
sources needed to be regulated to achieve the 90 percent requirement in
CAA section 112(c)(3). Therefore, the decision to regulate emissions of
chromium compounds and manganese compounds from the prepared feeds
manufacturing industry was based on emissions data submitted directly
by the industry. The information and analyses referred to by the
commenter were prepared to evaluate potential impacts of regulatory
options. This information had no bearing on the basic decision to
develop regulations for the prepared feeds manufacturing area source
category.
The commenter is also incorrect with respect to how emission points
were identified for regulation. They assume that the information
compiled for the
[[Page 528]]
impacts analyses was used as the basis to identify emission points for
regulation. Rather, chromium and manganese emission points were
identified primarily based on information submitted directly by the
industry. Specifically, we conducted a survey of the industry, and
responses were received for over 100 prepared feeds manufacturing
facilities. In the responses to this survey, prepared feeds
manufacturing facilities identified potential emission sources and
reported controls and management practices that were being used. This
information formed the basis for the decisions regarding the emission
points and process areas for which standards were proposed.
In conclusion, the commenter raised several issues on the impacts
analyses (see section V.G below). However, the issues associated with
these analyses did not influence the basic decision to regulate this
source category or the decisions on the specific emission sources that
would be regulated.
Comment: One commenter asserted that, ``* * * The legislative
history of Sec. 112 explains that Congress intended GACT standards to
reflect `methods, practices and techniques which are commercially
available and appropriate for application by sources in the category
considering economic impacts and technical capabilities of the firms to
operate and maintain emission control systems'.''
The commenter also asserted that, although EPA used its discretion
to issue GACT standards and that Sec. 112(d)(5) authorizes EPA to do
so, that decision is subject to administrative law requirements. The
commenter asserted that EPA's decision is arbitrary and capricious
because that decision was not supported with a rational explanation.
Response: As the commenter recognizes, in CAA section 112(d)(5),
Congress gave EPA explicit authority to issue alternative emission
standards for area sources. Specifically, CAA section 112(d)(5), which
is entitled ``Alternative standard for area sources,'' provides:
With respect only to categories and subcategories of area
sources listed pursuant to subsection (c) of this section, the
Administrator may, in lieu of the authorities provided in paragraph
(2) and subsection (f) of this section, elect to promulgate
standards or requirements applicable to sources in such categories
or subcategories which provide for the use of generally available
control technologies or management practices by such sources to
reduce emissions of hazardous air pollutants.
See CAA section 112(d)(5) (Emphasis added).
There are two critical aspects to CAA section 112(d)(5). First, CAA
section 112(d)(5) applies only to those categories and subcategories of
area sources listed pursuant to CAA section 112(c). The commenter does
not dispute that EPA listed the area source category noted above
pursuant to CAA section 112(c)(3). Second, CAA section 112(d)(5)
provides that, for area sources listed pursuant to CAA section 112(c),
EPA ``may, in lieu of'' the authorities provided in CAA section
112(d)(2) and 112(f), elect to promulgate standards pursuant to CAA
section 112(d)(5). CAA Section 112(d)(2) provides that emission
standards established under that provision ``require the maximum degree
of reduction in emissions'' of HAP (also known as maximum achievable
control technology or MACT). CAA section 112(d)(3), in turn, defines
what constitutes the ``maximum degree of reduction in emissions'' for
new and existing sources. See CAA section 112(d)(3).\2\ Webster's
dictionary defines the phrase ``in lieu of'' to mean ``in the place
of'' or ``instead of.'' See Webster's II New Riverside University
(1994). Thus, CAA section 112(d)(5) authorizes EPA to promulgate
standards under CAA section 112(d)(5) that provide for the use of GACT,
instead of issuing MACT standards pursuant to CAA section 112(d)(2) and
(d)(3). The statute does not set any condition precedent for issuing
standards under CAA section 112(d)(5) other than that the area source
category or subcategory at issue must be one that EPA listed pursuant
to CAA section 112(c), which is the case here.\3\
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\2\ Specifically, CAA section 112(d)(3) sets the minimum degree
of emission reduction that MACT standards must achieve, which is
known as the MACT floor. For new sources, the degree of emission
reduction shall not be less stringent than the emission control that
is achieved in practice by the best controlled similar source, and
for existing sources, the degree of emission reduction shall not be
less stringent than the average emission limitation achieved by the
best performing 12 percent of the existing sources for which the
Administrator has emissions information. CAA Section 112(d)(2)
directs EPA to consider whether more stringent emission reductions
(so called beyond-the-floor limits) are technologically achievable
considering, among other things, the cost of achieving the emission
reduction.
\3\ CAA Section 112(d)(5) also references CAA section 112(f).
See CAA section 112(f)(5) (entitled ``Area Sources'' and providing
that EPA is not required to conduct a review or promulgate standards
under CAA section 112(f) for any area source category or subcategory
listed pursuant to CAA section 112(c)(3), and for which an emission
standard is issued pursuant to CAA section 112(d)(5)).
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We disagree with the commenter's assertion that we must provide a
rationale for issuing GACT standards under section 112(d)(5), instead
of MACT standards. Had Congress intended that EPA first conduct a MACT
analysis for each area source category, Congress would have stated so
expressly in section 112(d)(5). Congress did not require EPA to conduct
any MACT analysis, floor analysis or beyond-the-floor analysis before
the Agency could issue a section 112(d)(5) standard. Rather, Congress
authorized EPA to issue GACT standards for area source categories
listed under section 112(c), and that is precisely what EPA has done in
this rulemaking.
Although EPA has no obligation to justify why it is issuing a GACT
standard for an area source category as opposed to a MACT standard, we
did explain at proposal that being able to consider costs and economic
impacts is important when establishing standards for a category like
this with many small sources. Furthermore, EPA must set a GACT standard
that is consistent with the requirements of CAA section 112(d)(5) and
have a reasoned basis for its GACT determination. As explained in the
proposed rule and below. The legislative history supporting section
112(d)(5) provides that GACT is to encompass:
``* * * methods, practices and techniques which are commercially
available and appropriate for application by the sources in the
category considering economic impacts and the technical capabilities
of the firms to operate and maintain the emissions control
systems.''
The discussion in the Senate report clearly provides that EPA may
consider costs in determining what constitutes GACT for the area source
category. Congress plainly recognized that area sources differ from
major sources, which is why Congress allowed EPA to consider costs in
setting GACT standards for area sources under section 112(d)(5), but
did not allow that consideration in setting MACT floors for major
sources pursuant to section 112(d)(3). This important dichotomy between
section 112(d)(3) and section 112(d)(5) provides further evidence that
Congress sought to do precisely what the title of section 112(d)(5)
states, i.e., provide EPA the authority to issue ``alternative
standards for area sources.''
Notwithstanding the commenter's claim, EPA properly issued
standards for the area source categories at issue here under section
112(d)(5), and in doing so provided a reasoned basis for its selection
of GACT for these area source categories. As explained in the proposed
rule, EPA evaluated the control technologies and management practices
that reduce HAP emissions at Prepared Feeds Manufacturing area source
facilities. In its evaluation, EPA used information on pollution
[[Page 529]]
prevention from industry trade associations, and reviewed operating
permits to identify the emission controls and management practices that
are currently used to control volatile and particulate HAP emissions.
We also considered technologies and practices at major and area sources
in similar categories.
Finally, even though not required, EPA did provide a rationale for
why it set a GACT standard in the proposed rule. In the proposal, we
explained that the facilities in the source categories at issue are
already well controlled for the urban HAP for which the source category
was listed pursuant to section 112(c)(3). Consideration of costs and
economic impacts proves especially important for the well-controlled
area sources at issue in this final action. Given the current, well
controlled emission levels, a MACT floor determination, where costs
cannot be considered, could result in only marginal reductions in
emissions at very high costs for modest incremental improvement in
control for the area source category.
Comment: One commenter questioned why EPA was not considering
regulation for all HAP emissions. The commenter explained that, as
documented in the record for this rulemaking, that Prepared Feed
Manufacturing facilities often generate emissions other than manganese,
such as arsenic and arsenic compounds, benzene, beryllium and beryllium
compounds, cadmium and cadmium compounds, chlorine, cobalt and cobalt
compounds, formaldehyde, hexane, hydrochloric acid, hydrogen fluoride,
lead and lead compounds, mercury and mercury compounds, naphthalene,
nickel and nickel compounds, polycyclic organic matter, selenium and
selenium compounds, and toluene. The commenter acknowledged that
management practices and PM controls required by the rule will likely
reduce other metal HAP emissions to some degree; however they indicated
that the Agency failed to quantify this benefit. The commenter also
indicated that EPA should consider controls for other HAPs that will
not be co-controlled with the manganese and chromium.
Response: Section 112(k)(3)(B) of the CAA requires EPA to identify
at least 30 HAP emitted from area sources that pose the greatest threat
to public health in the largest number of urban areas (the ``Urban
HAP'') and identify the area source categories emitting such pollutants
that are or will be listed pursuant to section 112(c)(3). Section
112(c)(3), in relevant part, provides:
The Administrator shall * * *, pursuant to subsection (k)(3)(B)
of this section, list, based on actual or estimated aggregate
emissions of a listed pollutant or pollutants, sufficient categories
or subcategories of area sources to ensure that area sources
representing 90 percent of the area source emissions of the 30
hazardous air pollutants that present the greatest threat to public
health in the largest number of urban areas are subject to
regulation under this section.
Thus, section 112(c)(3) requires EPA to list sufficient categories or
subcategories of area sources to ensure that area sources representing
90 percent of the area source emissions of the 30 urban HAP are subject
to regulation. Section 112(d)(1) requires the Administrator to
promulgate regulations establishing emissions standards for each area
source category of HAP listed for regulation pursuant to section
112(c).
EPA identified the 30 Urban HAP that posed the greatest threat to
public health in the Integrated Urban Air Toxics Strategy (Strategy).
In the Strategy and subsequent Federal Register notices, EPA listed the
area source categories necessary to meet the 90 percent requirement in
section 112(c)(3) and (k)(3)(B), and one of those categories was the
Prepared Feeds Manufacturing area source category.
We have interpreted sections 112(c)(3) and 112(k)(3)(B) together to
require EPA to regulate only those Urban HAP emissions for which an
area source category is listed pursuant to section 112(c)(3), not all
urban HAP or all section 112(b) HAP emitted from a listed area source
category. As stated above, section 112(k)(3)(B) addresses the strategy
to control HAP from area sources in urban areas and the focus of the
strategy as it relates to control of area sources is on the 30 HAP that
pose the greatest threat to public health in the largest number of
urban areas. Section 112(c)(3) specifically references section
112(k)(3)(B) as the basis for selecting area sources for listing to
satisfy the Agency's responsibility for regulating urban HAP emissions
from area sources. Under these provisions, area sources categories are
listed because they emit one or more of the 30 listed Urban HAP and the
Agency has identified the category as one that is necessary to satisfy
the requirement to subject area sources representing 90 percent of the
area source emissions of the 30 urban HAP to regulation.
EPA listed the Prepared Feeds Manufacturing area source category
pursuant to sections 112(c)(3) and 112(k)(3)(B). We must regulate only
the chromium and manganese emissions from the Prepared Feeds
Manufacturing area source category, as these are the urban HAP
emissions for which the category was listed to meet the 90 percent
requirement in sections 112(c)(3) and (k)(3)(B). See 112(c)(3) (EPA
must ``ensure that area sources representing 90 percent of the area
source emissions of the 30 hazardous air pollutants * * * are subject
to regulation.''). We recognize that the source category emits other
section 112(b) HAP, including other urban HAP; however, as stated
above, sections 112(c)(3) and 112(k)(3)(B) do not require the Agency to
regulate the area source category for any HAP other than those for
which the category was listed. As to the other urban HAP emitted from
this category, we have identified other area source categories that
emit these urban HAP and subjecting those area source categories to
regulation will satisfy the requirement to subject to regulation area
sources that account for 90 percent of the area source emissions of
those urban HAP.
While the Agency is not required to regulate all section 112(b) HAP
from area sources listed pursuant to section 112(c)(3) and
112(k)(3)(B), section 112 of the CAA does not preclude EPA from
regulating other HAP from these area sources at our discretion and in
appropriate circumstances. Section 112(d)(5) states that, for area
sources listed pursuant to section 112(c), the Administrator may, in
lieu of section 112(d)(2) ``MACT'' standards, promulgate standards or
requirements ``applicable to sources'' which provide for the use of
GACT or management practices ``to reduce emissions of hazardous air
pollutants.'' This provision does not limit EPA's authority to regulate
only those urban HAP emissions for which the category is needed to
achieve the 90 percent requirement in sections 112(k)(3)(B) and
112(c)(3). In fact, in two other area source rules, in addition to
regulating the urban HAP that were necessary to satisfy the 90 percent
requirement in sections 112(k)(3)(B) and 112(c)(3), we regulated
additional section 112(b) HAP. Specifically, in the chemical
manufacturing area source rule and the paint and allied products area
source rule, although not required, we exercised our discretion to
regulate other section 112(b) HAP beyond the urban HAP for which the
categories were listed under section 112(c)(3) and (k)(3)(B), including
non-urban section 112(b) HAP. The chemical manufacturing area source
rule and the paints and allied products area source rule both involve
specific circumstances which EPA believes justify regulating organic
and metal section 112(b) HAP in
[[Page 530]]
addition to the specific urban HAP needed to meet the 90 percent
requirement in section 112(c)(3) and (k)(3)(B), which served as the
basis for the listing of the categories. In the chemical manufacturing
area source rule, which establishes standards for 9 area source
categories, we regulated such HAP because the emission standards
designed to control the urban HAP for which the categories were listed
were equally effective at removing other urban and non-urban metal and
organic HAP, and demonstrating compliance for total HAP was less
burdensome than demonstrating compliance for speciated HAP for those
sources required to install add-on controls. In the paint and allied
products area source rule, we included emission standards for HAP
beyond the urban HAP for which the category was listed because the
emission standards designed to control those urban HAP would also
control other urban and non-urban metal and organic HAP.
In conclusion, we believe that we have appropriately exercised our
discretion in regulating only the chromium and manganese emissions from
the prepared feeds manufacturing area source category. Therefore, we
did not make any changes in the final rule based on this comment.
2. Housekeeping Management Practices
Comment: One commenter claimed that the Agency's proposed
housekeeping practices are ``overreaching,'' ``unfounded,'' and
``unnecessary.'' The commenter believed that EPA had no basis for
correlating housekeeping practices with ambient air concentrations of
chromium compounds or manganese compounds.
The commenter also had concerns with regard to two of the specific
plant-wide housekeeping requirements proposed. The commenter argued
that the requirement that dust be removed from walls, ledges and
equipment at least once per month is not performance-orientated and
fails to consider individual facility operations or existing management
practices. The commenter also disagreed with the Agency's assertion
that air flow through open doors `stirs-up' dust and causes chromium
compounds and manganese compounds to be emitted into the atmosphere.
Therefore, the commenter opposed the proposed requirement that affected
facilities keep doors shut, as practicable. In addition, the commenter
also expressed concern over the facilities ability to comply with this
requirement as they questioned what would be the parameters set/used to
determine that having a door shut is not practicable.
The commenter noted that prepared feeds manufacturing facilities
already comply with Occupational Safety and Health Administration's
(OSHA) Grain Handling Standard (29 CFR 1910.272) and the Food and Drug
Administration's (FDA's) Current Good Manufacturing Practices (CGMPs)
for Medicated Feeds (21 CFR part 225), and that they are regularly
inspected by Federal and State authorities. Because of this, the
commenter believed that EPA's proposed housekeeping practices are
unnecessary. The commenter provided more detailed descriptions of these
two programs.
Occupational Safety and Health Administration's (OSHA) Grain
Handling Standard (29 CFR 1910.272): This standard requires
facilities to ``develop and implement a written housekeeping program
that establishes the frequency and method(s) determined best to
reduce accumulations of fugitive grain dust on ledges, floors,
equipment and other exposed surfaces'' throughout the entire
facility. OSHA's housekeeping requirements are performance-oriented,
allowing facilities the flexibility to design housekeeping programs
to achieve compliance through methods that are most effective for
individual facilities and operations.
FDA's Current Good Manufacturing Practices (CGMPs) for Medicated
Feeds (21 CFR 225): The vast majority of prepared feed manufacturers
are mandated to comply with CGMPs that require buildings and
equipment be maintained and kept in a reasonably clean and orderly
manner to avoid the potential adulteration of feed products.
Regarding this provision, FDA's compliance program guidance states,
``Accumulated dust or residue will be considered objectionable when
there is a likelihood that the material could contribute to
significant contamination of animal feed.'' Similar to the OSHA
requirement, FDA's housekeeping standard also is performance-
orientated. The CGMP regulations allow facilities to implement those
housekeeping practices that are effective for their individual
operations and achieve compliance with the standard.
Another commenter recommended that instead of the specific
requirements, facilities be required to maintain a management plan to
minimize excess dust. The commenter said that this plan can be
maintained on site, available for review by the delegated authority.
Response: The commenter claimed that EPA has no basis for
correlating housekeeping practices with ambient air concentrations.
Under section 112(k)(3)(B) of the CAA, EPA determined that chromium and
manganese were 2 of the 30 HAP which, as the result of emissions from
area sources, pose the greatest threat to public health in the largest
number of urban areas. Section 112(c)(3) of the CAA requires EPA to
list sufficient categories or subcategories of area sources to ensure
that there are sources representing 90 percent of the emissions of each
of the 30 urban HAP are subject to regulation. We determined that the
chromium and manganese emissions from prepared feeds manufacturing area
sources need to be subject to regulation to meet this 90 percent
requirement for these two HAP. Additionally, under CAA section
112(d)(5), we may elect to promulgate standards that represent GACT. As
cited above, the legislative history supporting section 112(d)(5)
provides that GACT is to encompass:
``* * * methods, practices and techniques which are commercially
available and appropriate for application by the sources in the
category considering economic impacts and the technical capabilities
of the firms to operate and maintain the emissions control
systems.''
Section 112(d)(5) calls for EPA to establish GACT standards that are
designed to reduce HAP emissions. Nothing in these provisions requires
EPA to justify GACT regulations based on a correlation between ambient
concentrations and emissions from a specific emissions source.
We based our GACT determinations on methods, practices, and
techniques commonly employed in the prepared feeds manufacturing
industry. Based on the available information, we concluded that every
prepared feeds manufacturing facility performed general housekeeping
practices and maintained equipment in an effort to reduce dust and
thus, particulate emissions. We appreciate the information provided by
the commenter that confirms this conclusion, along with the details of
the regulatory programs that require these measures.
We disagree with the commenter that including GACT housekeeping
practices is unnecessary. As noted above, section 112(d)(5) requires
EPA to establish national standards. The fact that OSHA and FDA have
similar requirements has no relevance here, especially since they allow
facilities to establish individual (and potentially dissimilar)
standards. Therefore, the final rule maintains specific housekeeping
requirements to minimize dust and does not include a requirement to
develop site-specific management practices.
As noted above, we had information prior to proposal that made it
clear that housekeeping practices to minimize dust were widespread. We
concluded that GACT was ``continual housekeeping practices to reduce
dust that can contain chromium compounds
[[Page 531]]
and manganese compounds.'' (74 FR 36985) However, we did not have
information from a good cross section of the industry on specific
practices employed. We solicited information from one of the major
prepared feeds manufacturers to identify some specific practices
employed in the industry, and included them in the proposed rule. At
proposal, we acknowledged the potential limitations of the examples of
practices proposed, and specifically requested comment on these
measures. We also requested additional general management practices
commonly employed throughout the industry.
The commenter expressed concerns with regard to the proposed
housekeeping practices, but they were not responsive to our request for
additional practices used throughout the industry. While the commenter
did not provide any suggestions to address their concerns (other than
the suggestion to remove the practices entirely), we recognize the
issues raised in the comments provided on the specific management
practices and have considered them.
The commenter stated that the requirement that dust be removed from
walls, ledges and equipment at least once per month is not performance-
orientated and fails to consider individual facility operations or
existing management practices. It is clear that all prepared feeds
manufacturing facilities must remove dust from walls, ledges, and
equipment periodically in order to comply with the OSHA requirement.
The commenter did not provide any alternative to the monthly
requirement, and our follow-up calls to feed manufacturing facilities
indicated that monthly is a reasonable time frame. In fact, these calls
show that many areas of the plant are cleaned more frequently than
monthly. Therefore, the final rule retains the requirement to remove
dust from walls, ledges, and equipment on a monthly basis.
The proposed requirement to keep doors closed was the result of a
recommendation from a prepared feeds manufacturer. However, we
appreciate the concerns regarding potential compliance confusion with
the proposed requirement to keep doors closed ``as practicable.''
Therefore, the final rule states that doors must remain closed ``except
during normal ingress and egress.''
Comment: One commenter expressed concern that the general
housekeeping requirements would apply to all areas of the affected
facility, even though all areas of the affected facility may not be
involved with the storage and/or use of chromium compounds or manganese
compounds.
Response: We agree with the commenter that there is no need to
perform these management practices in areas where chromium or manganese
are never present. Therefore, we have changed this language in the
final rule to specify that the general management practices apply in
``all areas of the affected source where materials containing chromium
or manganese are stored, used, or handled.''
3. Mixers
Comment: One commenter urged the Agency to eliminate the
requirement that affected facilities cover the mixer where materials
containing chromium compounds or manganese compounds are added at all
times when mixing is occurring, except when the materials are being
added to the mixer. The commenter suggested that this requirement
implies that chromium compounds or manganese compounds are being
emitted into the atmosphere directly from the mixer when mixing occurs,
and they do not believe that this is true. The commenter stated that if
chromium and manganese are released from a mixer, they are captured
within the facility in which the mixer is operating and not directly
released to the atmosphere. The commenter explained that the facilities
themselves are control devices. The commenter claimed that there was a
lack of sufficient and compelling data to support a contention that
openings in mixers are a source of emissions of chromium compounds or
manganese compounds. The commenter believed that the technical
background information considered by EPA in this rulemaking produced an
unfounded correlation between mixer operation and chromium and
manganese emissions. The commenter cited EPA's 2002 National Emissions
Inventory (NEI) and noted that the data reviewed indicated no emissions
of chromium compounds or manganese compounds from source classification
codes 31227 through 31237, which encompass mixing/blending operations
at feed manufacturers.
Response: The commenter stated that when chromium compounds or
manganese compounds are released from the mixer they are not emitted to
the atmosphere because the facilities themselves are control devices.
We do not disagree that there may be situations where direct releases
to the atmosphere from the mixing operations do not occur. In fact, of
the facilities that reported information for mixing in response to our
industry survey, over 60 percent indicated that their processes are
``closed'' without direct vents to the atmosphere. However, the general
ventilation of the building can allow chromium- and manganese-
containing dust from the building to be emitted. Chromium and manganese
dust created in the mixer that accumulates in the building could be
emitted. Therefore, any measures to reduce the amount of dust in the
building impacts emissions. We believe that the proposed measures to
reduce dust generation from mixing will result in lower dust levels
and, thus, lower emissions.
The commenter further claimed that there was no evidence that
openings in mixers are a source of emissions of chromium compounds or
manganese compounds, and that the technical background information
considered by EPA in this rulemaking produced an unfounded correlation
between mixer operation and chromium and manganese emissions. However,
we identified mixers as a source of emissions due to information
submitted directly by the industry. Specifically, prepared feeds
manufacturing facilities identified mixing as a potential emission
source and reported associated add-on control devices and management
practices in response to our industry survey. We reviewed the material
submitted via this survey and agree that it is accurate and
representative.
Since some prepared feeds manufacturing facilities reported that
emissions from mixing were vented to a control device, we evaluated
whether add-on controls were GACT for mixing operations. The commenter
is correct that no emissions were assigned directly to mixing in the
2002 NEI. However, we would note that over 60 percent of the manganese
emissions in the 2002 NEI, and 90 percent of the chromium emissions,
were not assigned to any specific operation, thus raising the
possibility that some of these emissions are occurring from mixing
operations.
In order to evaluate whether it was cost effective to select add-on
control as GACT, it was necessary to make assumptions based on
engineering judgment to estimate emissions from mixing. While the
commenter may disagree with the assumptions that were used to estimate
these emissions, the result was the rejection of add-on control as GACT
for mixing.
To reiterate, the emission estimates that the commenter objects to
were not a factor in establishing the proposed management practices as
GACT. That determination was directly based on the information
submitted in response to the survey.
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In conclusion, the commenter provided no information to suggest
that the proposed measures were not generally available and commonly
used by the facilities to reduce chromium- or manganese-containing dust
from mixing operations at prepared feeds manufacturing facilities. The
commenter also provided no information challenging our conclusion that
the costs of the GACT standards in the final rule are reasonable.
Therefore, no changes were made to the proposed requirements for
mixing.
4. Pelleting and Pellet Cooling
Comment: One commenter supported requiring the option to select
add-on control (cyclones) as GACT for facilities that produce less than
50 tpd of prepared feeds. The commenter points out that EPA determined
that approximately 20 percent of existing facilities already had
cyclones installed, and that the agency estimated that the cost
effectiveness of requiring the remaining 80 percent to install controls
would be around $1 million per ton of chromium and manganese compound
emission reduction, $4,000 per ton of PM emission reduction, and
$20,000 per ton of PM2.5 reduction, and that the annual cost of
installing and operating a cyclone at one of these facilities would be
around $58,000 per year. The commenter recognizes that EPA performed an
economic impact assessment, which indicated that these annual costs
could represent over 5 percent of the total annual sales for a small
facility, and that EPA concluded that ``the adverse economic impacts do
not justify a determination requiring cyclones for the small prepared
feeds manufacturing subcategory.'' The commenter states that, although
this economic impact analysis is more instructive than mere reliance on
cost effectiveness figures, the 5 percent of total annual sales
threshold is arbitrary. The commenter states that EPA does not explain
why the benefits of further reductions in PM, PM2.5, manganese
compounds and chromium compounds, as well as other metal HAP emissions,
are not sufficient to justify the costs of the controls. The commenter
stated their belief that the GACT provision's requirement of cost
considerations does not preclude the need to consider the environmental
benefits of the proposed rule in determining whether those costs are
justified.
Response: As noted by the commenter, we performed an economic
impact assessment that indicated that the annual costs for fabric
filters for bagging could represent over 5 percent of the total annual
sales for a facility with less than 5 employees. We strongly disagree
that a decision to reject controls that would result in costs that
represent 5 percent of the total annual sales is arbitrary. This 5
percent value was a direct calculation of the small model plant cyclone
costs divided by the average shipments per facility for facilities with
less than 5 employees. While each GACT decision includes a variety of
factors to take into account, we generally consider costs in excess of
3 percent of sales to be significant and potentially economically
damaging. Further, since we believe all of the facilities in the small
facility subcategory are small businesses, we are even more sensitive
to potentially detrimental economic impacts. We also disagree that we
did not consider the environmental benefits. For this option, we
estimated and considered the emission reductions of chromium,
manganese, PM, and PM2.5. However, we determined that these emission
reductions are not justified given the economic impacts. In conclusion,
we believe our decision to reject the option to require add-on controls
for pelleting operations at prepared feed manufacturers with daily
production rates of 50 tpd or less is justified.
Comment: Two commenters recommended that, since the 50 tpd
production level determines if emissions must be controlled from the
pelleting and pellet cooling operations, this level should be related
to the amount of feed pelletized and not the total amount of feed
produced by the entire facility. One of the commenters indicated that
they are aware of several prepared feeds manufacturing facilities that
do not pelletize feed, or that only pelletize a small percentage of the
feed produced.
Response: Under section 112(d)(1) of the CAA, EPA ``may distinguish
among classes, types, and sizes within a source category or subcategory
in establishing such standards''. As discussed at proposal (74 FR
36985), we observed differences between prepared feeds manufacturing
facilities based on production levels and subcategorized the Prepared
Feeds Manufacturing source category into ``small'' and ``large''
facilities. The threshold used to distinguish between these
subcategories was an average feed production level of 50 tpd. We then
independently determined GACT standards for each subcategory.
Therefore, our subcategorization and GACT determinations were based on
the separation of facilities according to total feed production levels,
not pelleting feed production. Since the change suggested by the
commenter is inconsistent with our subcategorization decision and
analyses, we retained the proposed definition of the small and large
subcategories based on total feed production levels.
Comment: One commenter recommended that the 50 tpy threshold be on
an annual, rather than daily, basis. The commenter said that this could
be the production level in a calendar year or a rolling 12-month
production level. The commenter points out that an annual production
level of 13,000 tons per year would be equivalent to 50 tpd, assuming
an operating schedule of 260 days per year. The commenter noted that
the proposed daily rate did not appear to have any special
significance, as it was calculated as an average of annual production.
The commenter believed that an annual production rate would achieve the
same objectives and would be easier than a daily production rate for
facilities and for regulatory agencies to track.
Response: We did not incorporate the commenters' suggestion to
change the threshold to an annual basis. In our determination of GACT,
the data on the existence of controls were related to daily production
levels. To determine an annual threshold from these data would require
an assumption regarding the number of days of operation per year. We do
not believe that calculating an annual rate based on a ``typical''
production schedule is reflective of varying production schedules that
exist in the industry. Therefore, the final rule maintains the daily
production level concept. Requiring owners and operators to maintain
annual production data and the number of operating days, and then
dividing the annual production by the number of operating days is no
more difficult or burdensome for facilities or regulatory agencies than
the approach recommended by the commenter.
Comment: Two commenters maintained that the pelleting cyclones
would not be able to reach the proposed design efficiency of 95 percent
for PM10. The commenters believed that this level of efficiency would
not be attainable under the conditions of the pelleting process. One
commenter suggested the efficiency requirement be changed to 95 percent
for total PM (up to 35 micron). The commenter included a chart from a
cyclone manufacturer that showed the efficiency in removal of PM10 by a
cyclone estimated at 90 percent. The commenter continued that this
level would not be expected to be reached under the conditions of the
pelleting process with its high moisture and high temperature
conditions. The commenter stated that a second control
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device such as a baghouse or a wet scrubber would be necessary to reach
a capture efficiency of 95 percent for PM10.
Response: In the proposed rule, GACT for the pelleting operation
was determined to be the use of a cyclone to control emissions of
chromium and manganese. We did not specify GACT as a specific control
efficiency, concentration, or operating parameter. However, in order to
establish criteria that represent a properly designed, operated, and
maintained control device, it was necessary to establish requirements
in the proposed rule on how the cyclone is designed and operated. Many
respondents to the industry survey stated they use high efficiency
cyclones to control the pelleting operations. The result is reduced
emissions to the air and the capture of lost product that can be
returned to the manufacturing operation.
As a follow up to the industry survey responses, we contacted an
industry representative (Docket No. EPA-HQ-OAR-2008-0080-0010) that
responded to our survey for several prepared feeds manufacturing
facilities and asked about the level of efficiency that would be
expected with high efficiency cyclones reported to be used to control
the pelleting process. The representatives indicated that today's high
efficiency cyclones can be expected to get 99 percent control of
particulates, while older ones can be expected to achieve efficiencies
in the ``mid 90 percent'' range. While background material gathered
prior to proposal from vendors (Docket No. EPA-HQ-OAR-2008-0080-0034)
show that high efficiency cyclones should be able to reach the proposed
95 percent efficiency level for PM10, we understand that the conditions
of the pelleting process are not optimum. We contacted additional
cyclone manufacturers after proposal, and some agreed with the
commenters that cyclones designed to achieve 95 percent efficiency
level for PM10 for pelleting operations are not available. All of those
contacted indicated that many older cyclones still being used in the
industry would not meet the proposed 95 percent PM10 design
requirement. It was not our intent to force prepared feeds
manufacturers to replace older, well designed and properly operating
cyclones with new high efficiency cyclones, particularly since the
incremental emission reduction would be very low and the costs would be
high (our estimates are that the capital cost of a new cyclone is
between $50,000 to $100,000). The available information suggests that a
95 percent efficiency design requirement is achievable for total PM.
Therefore, we have changed the criterion in the final rule to require
cyclones designed to achieve a 95 percent efficiency level for total
PM, rather than for PM10.
Comment: A commenter recommended that the final rule provide
explicit compliance alternatives to the requirement to operate a 95
percent control efficient cyclone. The commenter cites that other area
source NESHAP, such as the Nonferrous Foundry NESHAP (Subpart ZZZZZZ),
establish a limit of either 99.0 percent control for PM or an emission
limit of 0.01 grains per dry standard cubic foot (gr/dscf). The
commenter is concerned that having 95 percent control efficient cyclone
as the only compliance option for pelletizing operations would unfairly
penalize a facility that has a pelletizing process with low
uncontrolled emissions or a facility that uses other control equipment
to achieve emissions reductions.
Response: The proposed rule required that emissions from pelleting
operations be captured and routed to a cyclone designed to reduce PM10
emissions by 95 percent. The format of the rule is an equipment
standard, and the 95 percent criterion is a design value, not an
emission limitation. Therefore, there is no penalty for a facility with
low uncontrolled emissions, provided that they have a cyclone designed
to achieve 95 percent reduction that is operated and maintained
properly.
Comment: A commenter requested clarification of whether PM or PM10
emissions is considered a surrogate for HAP emission in the proposed
rule. The commenter notes that the proposed rule requires that
pelletizing operations at feed preparation facilities with daily
production levels greater than 50 tpd be controlled by a cyclone
designed to reduce PM10 emissions by 95 percent or greater, and that in
several places in the preamble to the proposed rule that EPA indicates
that PM emissions will be considered the surrogate for chromium and
manganese. The commenter asked whether PM or PM10 is the surrogate
pollutant for the proposed rule. The commenter points out that several
other area source NESHAP consider PM to be the surrogate pollutant for
HAP emissions such as Subpart ZZZZZZ (Aluminum, Copper, Nonferrous
Foundries) and Subpart ZZZZZ (Iron and Steel Foundries). The commenter
recommends that EPA clarify in the final rule whether the surrogate
pollutant is PM or PM10 and include a justification for the choice of
surrogate. Further, the commenter recommends that, if EPA elects to use
PM10 as the surrogate, EPA evaluate the required control efficiency for
the cyclone control equipment.
Response: As stated in the preamble to the proposed rule, PM is the
surrogate for chromium and manganese emitted from this source category.
However, when specifying compliance conditions, the proposed rule used
the measure of collection efficiency of PM10. Due to other comments
received (see above), the final rule uses PM as the metric for cyclone
collection efficiency rather than PM10, which should remove any
confusion about the surrogate.
Comment: A commenter notes that the proposed rule requires the
owner of a cyclone at a feed preparation facility with a daily
production level of greater than 50 tpd to keep a record from the
cyclone's manufacturer of the control efficiency. The commenter asks
what EPA's expectations are for facilities if the manufacturer's
specifications are not available or do not show compliance with the
control efficiency? The commenter also asked whether an owner or
operator would have the option of demonstrating compliance with the
rule by testing the inlet/outlet concentrations of the cyclone for
determining the control efficiency. Finally, the commenter asked
whether other particulate control devices, such as a baghouse or fabric
filter, or control equipment in series, such as a cyclone and a
baghouse, would be allowed? The commenter indicated that if these
options are allowed that this should be made clear in the final rule.
Response: The commenter asked what EPA's expectations are for
facilities in showing compliance with the rule if the cyclone
manufacturer's design control efficiency and operating and maintenance
procedures are not available. We acknowledge that this could be a
problem, and have included in the final rule options for documenting
that the cyclone is designed to achieve 95 percent PM reduction. The
first option is to obtain certification from the manufacturer, as
proposed. Under Option 2, the owner or operator could have a registered
professional engineer or responsible official certify that the cyclone
is designed in a manner capable of achieving 95 percent or greater PM
reduction and keep a record of the information used to make this
determination. The third option is to conduct PM testing at the inlet
and outlet of the cyclone(s) to demonstrate that an efficiency of 95
percent or greater PM reduction is actually being achieved. If either
the certification or testing option is used, the owner or operator
would be required to identify
[[Page 534]]
a parameter (inlet flow rate, inlet velocity, pressure drop, or fan
amperage) operating range that constitutes proper operation of the
device, and develop site-specific cyclone maintenance procedures.
5. Bulk Loading
Comment: Several commenters objected to the proposed requirement
that emissions from bulk loading be reduced through the use of drop
filter socks. Two of the commenters believe that this is too costly and
should not be considered as GACT. One of the commenters explained that,
in order to meet the proposed requirements, one of their facilities
would need to redesign and purchase equipment for the entire bin and
bin loading system and potentially redesign the entire mill, which
could cost hundreds of thousands of dollars. Two commenters disagreed
with EPA's claim that every facility uses drop filter socks to reduce
dust and the loss of product during the loading of railcars and trucks.
One of the commenters argued that EPA's conclusion that every affected
facility already uses drop filter socks to reduce dust and the loss of
product during the loading of railcars and trucks contradicts the
background technical information in the docket, which indicates that
the use of drop filter socks was reported for around 70 percent of the
plants. The commenter noted that they conducted a survey of 41 prepared
feed manufacturing companies representing 306 plants to identify how
many facilities currently use drop filter socks. The commenter's survey
results were as follows:
1. The average number of loading-discharge points is 14.3 per
facility.
2. Only 53 percent of the responding industry facilities currently
have drop filter socks installed at discharge points where prepared
feed products are loaded into trucks or railcars.
3. The estimated average cost to install each drop filter sock is
$295.
4. The estimated average annual cost to maintain each drop filter
sock is $215.
The commenter indicated that, based on their survey results and the
assumption that there would be approximately 6,300 affected facilities,
the cost to install drop filter socks at loading discharge points would
be $12.5 million for the entire industry, with an annual cost of $9.1
million per year. The commenter notes the stark contrast in these
estimates and EPA's claim that the proposed requirement to install drop
filter socks would not create additional associated costs for
facilities.
Three of the commenters point out other alternative methods that
are equally effective in reducing emissions and should be allowed. One
commenter explained that many facilities have discharge-loading points
that already are designed to limit the distance between the feed-
discharge point and the conveyance, thereby minimizing potential dust
emissions. All three of these commenters note that many load-out
operations are conducted in enclosed areas, which minimizes emissions
and eliminates the need for drop filter socks. One of the commenters
asked that, if the requirements did not apply to truck load-outs that
occur inside a building, EPA should clarify this in the final rule.
Response: At proposal, we determined that filter drop socks (or
drop filter socks, as we inadvertently used the terms interchangeably)
represented GACT for bulk loading. As evident in the definition of
``filter drop sock,'' we intended that this term represent any ``device
at the loadout end of a bulk loader that lessens fugitive emissions by
containing the unloaded product within the device thus preventing
windblown and drop caused fugitive emissions.'' We are confident in our
assumption that every prepared feeds manufacturing facility uses some
device that meets the proposed broad definition of filter drop sock.
However, these comments make it apparent that the industry recognizes
one specific technology as filter drop socks, or drop socks, and that
it would not be accurate to assume that every facility utilizes this
technology. Therefore, in order to avoid confusion, we have removed the
definition of filter drop sock and revised the standard to require
that, for the bulk loading process where prepared feeds products
containing chromium or manganese are loaded into trucks or railcars, a
device must be used at the loadout end of each bulk loader to lessen
fugitive emissions. Examples of these devices include drop socks,
flexible spouts, and any device that reduces the distance between the
loading arm and the truck or railcar to a degree that avoids dust. We
believe it is important that these technologies be used for all bulk
loaders, whether they are inside or outside. Therefore, this
requirement applies to all bulk loaders that load products containing
chromium or manganese.
6. Bagging
Comment: One commenter disagreed with the decision to reject add-on
controls for emissions from bagging operations based solely on the cost
effectiveness of installing and operating those controls. The commenter
explained that the Agency's decision was made despite the widespread
use of these controls, as around 30 percent of the smaller facilities
and over 90 percent of the larger facilities controlled emissions from
bagging. The commenter points out that EPA did not disagree or reject
the notion that control options are appropriate or that the economic
impacts are too great. Rather, the commenter points out that the
decision to reject the option was based solely on the cost-
effectiveness, and that no economic analysis was performed. The
commenter indicated that basing this GACT decision solely on cost
effectiveness was unlawful. The commenter stated that the Agency is not
directed, under Section 112(d)(5), to set standards based on what the
agency believes is cost effective. The commenter noted that the Agency
themselves stated, ``GACT must reflect the `methods, practices and
techniques which are commercially available and appropriate for
application by the sources in the category considering economic
impacts.' 74 FR 36982 (quoting S. REP. NO. 101-228, at 171-72).''
Response: We disagree with the commenter, as we believe that cost
effectiveness is an appropriate measure to consider in the evaluation
of GACT, and that considering cost effectiveness is not unlawful. We
believe that by rejecting add-on controls for bagging operations
because the cost effectiveness was ``too high to be considered GACT,''
clearly indicates that we concluded the economic impacts are too great.
In the preamble to the proposed rule (74 FR 36986), we presented the
estimates for both sizes of facilities. For the facilities with daily
production levels of 50 tpd or less, the estimates were over $7 million
for the total capital costs and over $16 million per year for the total
annual costs, resulting in cost effectiveness estimates for these
controls of around $255 million per ton of chromium and manganese
reduction, over $750,000 per ton of PM emission reduction, and $3.3
million per ton of PM2.5 reduction. For the facilities with daily
production levels greater than 50 tpd, the estimates were over $10
million for the total capital costs and over $13 million per year for
the total annual costs, resulting in cost effectiveness estimates of
around $37 million per ton of chromium and manganese reduction, over
$100,000 per ton of PM emission reduction, and around $500,000 per ton
of PM2.5 reduction. Therefore, no changes were made as a result of this
comment.
[[Page 535]]
D. Inspections and Compliance Provisions
Comment: Two commenters stated that monitoring pressure drop would
not be the best way to ensure the proper functioning of the pelleting
cyclones. The commenters noted that, due to high moisture conditions
(always near dew point) of the dust laden air passing through the
cyclones on the pellet cooler air system, accurately measuring the
pressure drop is problematic. The commenters stated that moisture and
particulates in the duct (especially those ``upstream'' of the
collectors) will constantly compromise the accuracy of the static
pressure indicating equipment. Secondly, the commenters state that the
collectors are quite inaccessible and would require remote readouts,
which add to the cost and maintenance of this equipment. One commenter
believed the best way to ensure the proper functioning of their
collectors is to simply monitor the amp-load of the fan. The commenter
states that if the amp-load on the fan motor stays within the proper
range then the system is functioning properly. The commenter also
stated that, in their operation, the cyclones are located between the
cooler and the fan and the duct work is fully contained and sealed.
According to the commenter, consequently, all the air that is
discharged from the fan has passed through the collectors. The
commenter stated that, additionally, the fans on their cooler air
systems are electrically interlocked with the pelleting system (i.e.,
the pellet mill feeder will not operate unless the fan is operating);
consequently, if the pelleting system is operating, the fan will be
operating and the continuous monitoring of the fan amps will ensure the
collectors are operating in the proper range.
One of these commenters believed that the cost to industry to
install pressure-drop gauges and to monitor cyclone pressure drop would
be extremely high. According to the commenter, given the limited time
provided by EPA to respond to this proposed requirement, they were
unable to receive actual price quotes from vendors on the cost to
install a pressure-drop gauge on a cyclone at various types of
facilities. The commenter anticipated that such prices could vary
depending upon a facility's equipment and physical layout. However,
according to the commenter, based upon best estimates from vendors,
they believed that an average conservative cost to install a pressure-
drop gauge is $1,500 to $2,000 per cyclone. This commenter suggested
that the rule be revised to include alternative management practices
and equipment controls as follows:
1. Pellet cooling cyclones are to be operated in accordance with
the parameters authorized by air-operating permits issued by
appropriate legal authorities.
2. Pellet cooling cyclones are to be maintained and operated in
accordance with the manufacturer's recommendations.
3. Once per day, affected facilities are to perform a visual
inspection of the operating cyclone and the discharge air stream to
observe emissions.
4. Should an affected facility observe an emission discharge that
is not in accordance with the parameters authorized within its air-
operating permit, corrective actions are to be taken immediately to
correct the discharge and bring it into compliance with its air-
operating permit. The details of such occurrences, if any, are to be
recorded in the facility's maintenance records as required by rule's
recordkeeping and notification requirements.
Response: We believe that it is necessary to have a reasonably
frequent indication that the cyclones are operating properly. Cyclones
are relatively simple devices and generally have no moving parts. A
cyclone uses an induced draft fan to move the gas stream through the
device. These fans are sized to provide the maximum inlet velocity
possible for high separation without excessive turbulence. The primary
indicators of the performance of cyclones are the outlet opacity and
inlet velocity.
The commenter suggested the use of outlet opacity to monitor
performance; however, monitoring outlet opacity would require that
trained off-site contractors be used, or more likely, that individuals
at the plant be trained and certified in determining opacity using
Method 9. We have estimated that a single Method 9 test by an off-site
contractor costs around $2,000. While the costs to train and certify
on-site employees to perform these required daily tests would result in
costs less than $2,000 per day, we still believe that the cost of using
outlet opacity as an indicator of performance would be too high.
Therefore, we elected to require monitoring which provides an
indication of inlet velocity. Pressure drop across the cyclone is a
surrogate for inlet velocity, and, contrary to the commenters' claims,
it is an appropriate measure to indicate proper operation of a cyclone.
Many cyclone manufacturers link the design efficiency with a specific
pressure drop. However, other parameters are appropriate surrogates for
the inlet velocity. In particular, monitoring either inlet flow rate,
inlet velocity, or fan amperage are acceptable alternatives to
monitoring pressure drop. As a result of these comments, we have added
alternatives to the final rule that allow an owner or operator to
monitor pressure drop on a daily basis, or monitor either the inlet
flow rate, inlet velocity, or amperage load to the fan, on a daily
basis to show that the cyclone is performing consistent with its design
specifications. The commenter did not provide any information to
support their estimated costs of monitoring equipment.
One of the commenters suggested that cyclones be operated in
accordance with parameters authorized by operating permits issued by
appropriate legal authorities. We disagree with the commenter's
suggested approach. As an initial matter, section 112(d)(5) requires
that the Administrator establish national emission standards. To assure
compliance with these national emission standards, EPA develops
monitoring, recordkeeping and reporting requirements, as it did in this
rule. Indeed, one of the reasons supporting EPA's exemption of the
prepared feed manufacturing area source category from the requirements
of title V is that this rule contains sufficient monitoring,
recordkeeping and reporting requirements to assure compliance with the
requirements of the final rule. Thus, section 112 contemplates not only
that EPA will establish national emission standards, but that EPA will
establish appropriate monitoring, recordkeeping and reporting
requirements to assure compliance with those requirements. Furthermore,
the monitoring and other compliance provisions in State permits can
vary considerably, and some prepared feeds manufacturing facilities may
not even have permits. If a source would like to use an alternative
monitoring approach allowed by a state permit, it should follow the
requirements of 40 CFR 63.8(f). Therefore, we reject the commenter's
suggestion to remove any specific monitoring requirements from the
rule.
Comment: Two commenters expressed concern over the frequency of
record keeping for the pelleting control devices. One of these
commenters suggested that weekly, rather than daily, pressure drop
readings would be adequate. This commenter stated that, while a monthly
maintenance check on the cyclone is a reasonable requirement, daily
pressure drop readings are excessive because the pressure drop readings
would not be expected to vary widely. The commenter also noted that
[[Page 536]]
many cyclones are installed in areas that are not easily accessible so
daily checks can be time consuming to collect data that they describe
as a ``maintenance indicator.'' The other commenter stated that weekly
recording of readings would be adequate and that daily recordkeeping
was ``overkill'' (although the commenter provided justification for
reduced recordkeeping specific to a baghouse rather than the proposed
requirement for a cyclone).
Response: We proposed using the maintenance indicator of pressure
drop in order to ensure that the cyclones are operating correctly as an
indicator of compliance with the rule that can be readily checked by an
inspector. As discussed above, the final rule includes the option to
daily monitor inlet flow rate, inlet velocity, pressure drop, or fan
amperage. By providing multiple options to indicate compliance, we
believe the facility will find an option that can be completed from an
accessible area. Daily readings of these parameters are considered
appropriate because, while a cyclone may be a rather simple control
device in terms of moving parts, the system of ductwork and fans impact
the efficiency of the unit. Each cyclone is designed for a specific
inlet velocity in order to maximize the collection efficiency. We
believe that daily checks are necessary to ensure the ductwork is not
entraining outside air and/or that the fan is operating in the designed
manner. As a result, we have not changed the requirement for daily
monitoring and recording of cyclone performance measures.
Comment: A commenter also asked that the rule specify which cyclone
is expected to have a pressure drop gauge installed in cases where
multiple cyclones are installed in a line. Specifically, would pressure
drop monitoring be required for the initial cyclone, subsequent
cyclones, or all cyclones?
Response: The answer is dependent on the design reduction
efficiency of the cyclones. If one cyclone in a series is designed to
achieve 95 percent or greater PM removal, then monitoring would only be
necessary for that one device. However, if the design efficiencies for
all the individual cyclones in the series are less than 95 percent, but
the combined design efficiency is 95 percent or greater, then the inlet
flow rate, inlet velocity, pressure drop, or fan amperage for all the
cyclones would need to be monitored.
Comment: One commenter recommended that the Agency consider
revising the proposed monitoring to specify that the pressure drop must
be monitored at least once per day when the cyclone is in operation.
Response: We agree with the concept of this comment. However, we
want to make clear that the cyclone is required to be used at all times
when the pelleting process is in operation. Therefore, the rule has
been revised to state that monitoring of the cyclone operating
parameters is required at least once per day when the pelleting process
is in operation.
E. Reporting and Recordkeeping Requirements
Comment: One commenter stated that Sec. 63.11619(e)(1) of the
proposed rule indicated that facilities that do not add any materials
containing chromium or manganese compounds are not subject to the rule.
The commenter interpreted this to mean that facilities that do not use
chromium- or manganese-containing materials would be excluded from all
aspects of the NESHAP, including the requirement to submit an Initial
Notification. However, the commenter noted that, during the August 4,
2009 webinar (Docket Item No. EPA-HQ-OAR-2008-0080-44), it was
suggested that these facilities would be required to submit an initial
notification. The commenter indicated that it seems unnecessary to
require submittal of initial notification from facilities that do not
use chromium or manganese compounds, and requested that EPA clarify
whether this report is required of these facilities.
Response: The commenter's interpretation is correct. Facilities
that do not add any materials containing chromium or manganese to any
product manufactured at the facility are not subject to the rule,
including the requirement to submit an initial notification.
Comment: One commenter recommended that the proposed requirement to
submit an annual compliance certification report be omitted from the
final rule. The commenter said that annual reporting is burdensome and
difficult for small businesses to do year after year. The commenter
believes that annual reporting creates excessive paperwork for the
facility and the delegated authority with little environmental benefit.
The commenter also recommended that the monthly record certifying that
a facility has complied with the dust minimization management practices
be omitted, as they believe it is very excessive.
Response: Provided that the facility is in compliance, this annual
compliance certification report only needs to indicate that compliance
has been achieved. In the event that a noncompliance event has
occurred, this report will need to provide information about this
event. We believe it is important that there is clear accountability
regarding compliance with the regulation, and we believe that this is
best accomplished by having a responsible official certify that the
facility has complied with the requirements in the rule. We disagree
with the commenter that this once per year report is difficult and
overly burdensome. Therefore, the final rule has retained the
requirement to submit annual certification reports.
However, we considered the commenter's request regarding the
monthly certifications and have determined that they are not necessary.
We believe that accountability can be maintained via the annual
certifications and required records. Therefore, the proposed
requirement to keep a monthly record certifying compliance with the
management practices was not maintained in the final rule.
Comment: One commenter pointed out that the proposed rule did not
require a facility to keep records to show that it was below or above
the 50 tpd production level that determines whether controls are
required for emissions from the pelleting and pellet cooling operation.
The commenter also noted that the rule did not explain what happens
when a facility with a daily production level less than 50 tpd
increases production such that they would have a daily production level
greater than 50 tpd. The commenter recommended that provisions be added
to eliminate these deficiencies.
Response: We agree with the commenter, and added recordkeeping and
reporting requirements related to the average daily feed production
level. We also clarified how this level is to be determined. The final
rule specifies that the initial determination of the average daily feed
production level is based on the one-year period prior to the
compliance date for existing sources, or the design rate for new
sources. The final rule also requires that facilities with average
daily feed production levels below 50 tpd report their initial average
daily feed production level in their Notification of Compliance Status
report. These facilities would be required to maintain average daily
feed production level records to demonstrate that they do not exceed
the 50 tpd threshold in the future. At the end of each calendar year,
the facility will be required to re-calculate the average daily feed
production level for the previous year. If the average daily feed
[[Page 537]]
production level exceeds 50 tpd, the facility would have to comply with
the requirement to collect emissions from the pelleting and pellet
cooling operations and route them to a cyclone by July 1 of that year.
Prepared feed mill owners or operators with average daily feed
production levels less than 50 tpd that elect to comply with the
requirement to collect emissions from the pelleting and pellet cooling
operations and route the emissions to a cyclone would not be required
to maintain production records.
F. Definitions
Comment: Three commenters suggested that the EPA establish
definitions for chromium compounds and manganese compounds. One of the
commenters suggested using criteria consistent with that found within
the Agency's TRI reporting requirements, and noted that these
regulations state that: (1) Chromium compounds and manganese compounds
are exempt from the TRI reporting requirements when the concentration
of such chemicals is less than 1 percent of the total compound; and (2)
such an exemption applies whether the facility received or produced the
compound. One of the other commenters pointed out that, in other area
source NESHAP, materials containing HAP are defined as materials that
contain chromium in amounts greater than 0.1 percent by weight or
manganese in amounts greater than 1.0 percent by weight. The commenter
cited the definition of ``Material containing MFHAP'' in Sec. 63.1522
(40 CFR part 63, subpart XXXXXX) as an example.
Response: The commenters are confusing two concepts. A ``chemical
compound'' is a basic chemistry term to indicate a substance composed
of two or more elements united chemically in definite proportions by
mass. Therefore, any chemical compound containing the element chromium
would be a ``chromium compound.'' For example, chromic oxide, chromium
trioxide, and potassium chromate are all chromium compounds. Similarly,
any compound containing the element manganese is a ``manganese
compound.'' Manganese dioxide and manganese chloride are examples of
manganese compounds. In the CAA, ``chromium compounds'' and ``manganese
compounds'' two of the 30 Urban HAP. See Integrated Air Toxics
Strategy; see also CAA 112(b). Therefore, any chemical compound that
contains chromium or manganese is considered a HAP. We do not believe
that it is necessary to add language in the rule to explain this
standard chemistry terminology.
However, we agree with the commenter that the addition of
definitions of ``a material containing chromium'' and ``a material
containing manganese'' are appropriate. As we have pointed out in
several other area source rulemakings, the CAA section 112(k) inventory
was primarily based on the 1990 TRI, and that is the case for the
Prepared Feeds Manufacturing source category as well. The reporting
requirements for the TRI do not include de minimis concentrations of
toxic chemicals in mixtures; therefore, the CAA section 112(k)
inventory would not have included emissions from operations involving
chemicals below these concentration levels. See 40 CFR 372.38, Toxic
Chemical Release Reporting: Community Right-To-Know (Reporting
Requirements). Accordingly, the percentages noted above define the
scope of the listed source category; they are not exemptions.
Therefore, we believe that it is also appropriate to incorporate
this into the prepared feeds manufacturing area source NESHAP.
Specifically, we have added the following definitions to the final
rule:
A material containing chromium means a material that contains
chromium (Cr, atomic number 24) in amounts greater than or equal to 0.1
percent by weight.
A material containing manganese means a material that contains
manganese (Mn, atomic number 25) in amounts greater than or equal to
1.0 percent by weight.
We also revised the applicability provisions in Sec. 63.11619(a)
to specify that the rule applies to prepared feeds manufacturing
facilities that use a material containing chromium or a material
containing manganese and is an area source of emissions of HAP.
Comment: One commenter suggested that the EPA add the following
definition for prepared animal feeds: ``a mixture of ingredients and
supplements fortified with essential minerals, intended to be fed
directly to animals to meet or exceed total daily nutrient
requirements.'' The commenter also suggested that the definition of
prepared feeds manufacturing facility be changed to specify that the
feeds produced must be ``fortified with essential minerals.''
Response: As discussed earlier in section B, the prepared feeds
area source category extends beyond those facilities manufacturing only
products intended to be fed directly to animals. Additionally, this
definition is not consistent with the NAICS code that forms the basis
for this source category. Therefore, we did not incorporate the changes
suggested by the commenter.
Comment: One commenter requested that drop filter sock should be
defined and that it needs to specify the materials of construction and
how far into the railcar or truck it needs to extend. Another commenter
recommended that the Agency amend the term ``drop filter sock'' to
``drop sock, since the device does not filter potential emissions in
any manner.''
Response: As discussed in section V.C.5, we have eliminated the use
of the term ``filter drop sock'' in the final rule. Therefore, this
definition has been removed.
G. Impacts Assessment
Comment: One commenter believes that EPA's estimated number of
prepared feeds manufacturers affected by the proposed rule is
inaccurately low. The commenter points out that EPA states that
approximately 1,800 area-source prepared feed manufacturing facilities
currently operating add chromium compounds or manganese compounds to
their products and therefore would be subject to the proposed area
source standards. In contrast, the commenter believes that the actual
number of affected facilities exceeds 6,300. The commenter notes that
the FDA's bovine spongiform encephalopathy inspection database
currently lists more than 6,300 feed mills in which FDA has conducted
inspections. The commenter points out that the actual number of
facilities subject to the proposed rule has a direct impact on the
agency's stated benefits and costs of the rule.
Response: We agree that the number of facilities subject to the
rule is a key component in the assessment of impacts. Ideally, we would
not only have an estimate of the number of facilities in a source
category for which we are developing regulations, but we would also
have a list of those facilities. During our information gathering
efforts, it was clear that the industry was not well represented in the
two national emissions databases (TRI and NEI) that we typically use to
characterize an industry and their emissions. We also did not identify
any other source of information that would provide a list of specific
prepared feed manufacturing facilities in the U.S. Therefore, we based
our estimate of 1,800 prepared feed manufacturing facilities on the
2002 U.S. Economic Census of Manufacturers. Prior to proposal, we
consulted with the commenter on this topic, and the commenter agreed
that 1,800 was a reasonable estimate. However, we appreciate that the
commenter has now obtained other information that they believe
indicates
[[Page 538]]
that the number of facilities may be higher than originally estimated.
We investigated the FDA inspections database mentioned by the commenter
and found that this database includes many more types of facilities
than just prepared feed mills. The FDA Web site says the following:
``Inspections of renderers, feed mills, ruminant feeders, protein
blenders, pet feed manufacturers, pet feed salvagers, animal feed
distributors and transporters, ruminant feeders, and others have been
conducted to determine compliance with the BSE/Ruminant Feed
regulations.'' Clearly this includes many types of facilities that are
not in the Prepared Feeds Manufacturing area source category.
Facilities in the Prepared Feeds Manufacturing Source Category are
classified under NAICS 311119, which includes ``establishments
primarily engaged in manufacturing animal food (except dog and cat)
from ingredients, such as grains, oilseed mill products, and meat
products.'' The proposed applicability of the rule was taken directly
from this NAICS definition, except that it limited applicability to
those animal feed manufacturers that use chromium or manganese. The
2002 U.S. Economic Census of Manufacturers reports 1,567 establishments
under NAICS 311119. The census reports 1,811 establishments under the
broader NAICS 31111. While NAICS 31111 likely includes establishments
that would not be included in the source category, we chose to place
our estimate of the number of prepared feed facilities at 1,800 to be
conservative. As noted above, we sought input on this estimate and the
commenter deemed it as a ``reasonable estimate'' (Docket No. EPA-HQ-
OAR-2008-0080-0010).
The commenter did not provide any explanation why the Census data
were incorrect for these NAICS codes. The commenter also did not
provide evidence that establishments counted under other NAICS codes
would be subject to the rule. As discussed in section V.B, we revised
the applicability provisions to ensure that it is clear that the rule
only applies to the types of facilities that formed the basis for the
source category listing. Since this listing was based on NAICS 311119,
and no evidence has been submitted that the Census information for
NAICS is incorrect, we did not change our estimate of the population of
prepared feed manufacturing facilities in the U.S.
Comment: One commenter pointed out that data reported within the
TRI, which were used as a basis for EPA's baseline emission estimates,
are not solely an indication of emissions to the atmosphere. The
commenter stated that, by definition, the reported release may result
from spilling, leaking, pouring, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing of the reported chemical into
the environment.
Response: The commenter is correct that a variety of types of
releases are reported in the TRI. However, for our analysis, we only
used releases reported as ``Fugitive Air Emissions'' and ``Point Source
Air Emissions.'' Therefore, we disagree with the comment, as these
releases clearly represent an indication of emissions to the
atmosphere.
Comment: One commenter expressed concerns about the methodology
used to estimate emission levels of chromium compounds, manganese
compounds, and total PM. The commenter stated their belief that this
analysis lacked a sound statistical basis, and that the baseline
emission estimates and corresponding estimated potential emission
reductions used by EPA within its proposed rule are erroneous and do
not support EPA's proposed management practices and equipment controls.
In particular, the commenter believed that it was inappropriate to
extrapolate the chromium compound and manganese compound emissions for
the entire industry based on average emission rates from only 22
facilities represented in EPA's 2006 TRI. The commenter pointed out
that this problem was exacerbated by the fact that only a fraction of
these 22 facilities reported emissions of chromium or manganese
compounds. Further, the commenter also stated that facilities reporting
the majority of these emissions produce trace mineral premixes
subsequently used by other feed manufacturers, and that they do not
have pelleting operations, which EPA identifies as the largest emission
source at prepared feed mills.
With regard to the estimated PM emissions, the commenter indicated
that they believe that the average PM emission level calculated from
the NEI was inaccurate. In particular, the commenter believes that the
70 facilities in the NEI with PM emissions represent a number of the
highest production volume feed manufacturers in the United States.
Therefore, the commenter states that using the average PM emissions for
these larger facilities significantly overestimates the PM emissions
for the entire industry.
Response: The information questioned by the commenter was
considered by EPA in the selection of GACT. As discussed above in
section V.D, this information did not impact the decision to regulate
chromium and manganese from the prepared feeds source category or the
decision which emission sources to regulate. Further, the emission
reductions estimated by this analysis were only one of the
considerations that make up the GACT decision.
With regard to the specific concerns offered by the commenter, the
technical memorandum describing the estimation of baseline emissions
discussed the lack of facility-specific emissions data for the prepared
feeds industry. Given this lack of data, the approach selected was to
develop ``model plants'' to represent the industry. The use of model
plants with ``average'' parameters is a sound technical approach that
EPA has long used when facility-specific information is not available
for the entire industry. Therefore, we reject the argument by the
commenter that the use of average emission levels is inappropriate.
However, we do recognize the concerns of the commenters with regard
to the specific average emission levels utilized and the manner in
which they were created. For instance, the average chromium compound
emission level was based on a single facility's emissions in the 2006
TRI, and the average manganese compound emissions level was based on
emissions from eight facilities. The commenter did not provide any
suggestions on how to improve the analysis using the existing or other
readily available information. However, in light of the concerns, we
reexamined the available data and the approaches used.
After this review, relatively significant changes were made to five
specific areas of our impacts analysis. Each of these is discussed
below. There is a technical memorandum in the docket that discusses
these changes further and presents the detailed updated results.
1. Changes to Analyses
Percentage of Industry in Small Facility Subcategory. The proposal
analysis estimated the number of prepared feed manufacturing facilities
with average daily feed production values of 50 tpd or less based on
information submitted by the industry in response to an EPA
questionnaire. Around 11 percent of the facilities responding to this
questionnaire had daily production levels of 50 tpd or less. Following
the completion of the baseline emissions and impacts analyses, EPA
conducted an economic impact analysis. As part of this analysis, EPA
collected detailed data from the 2002 Economic Census of Manufacturers
that broke down the
[[Page 539]]
industry based on the number of employees. This information suggested
that the profile of the industry based on the industry questionnaire
responses may have been biased slightly toward larger facilities (i.e.,
a larger percentage of the industry would have average daily feed
production rates of 50 tpd or less than originally estimated).
Therefore, this new information was used, along with correlation
between production and revenues provided by a commenter, to reassess
this profile. The revised analyses assume that 29 percent of the
facilities in the industry have average daily feed production levels of
50 tpd or less.
Number of Facilities Emitting Chromium. In the proposal analysis,
it was assumed that every facility in the industry added chromium-
containing nutrients to their products. However, in response to follow-
up questions asked by EPA on their public comments, the industry trade
organizations stated that: ``The use of chromium compounds among feed
manufacturers is not as prevalent as the use of manganese compounds.
Until a recent FDA-approval for use in dairy feeds earlier this year,
chromium compounds had been approved for use only in swine feeds. Only
about 2 to 3 percent of feed mills in the U.S. use a chromium compound,
and only two compounds, chromium proprionate and chromium
tripicolinate, are approved by FDA for use in swine feed.'' Based on
this information, the revised impacts analysis assumes that only 3
percent of the prepared feed manufacturing facilities in the United
States use and emit chromium.
Facility Average Chromium and Manganese Emission Rates. Because the
national databases considered prior to proposal contained data for such
a limited number of prepared feed manufacturing facilities, a model
plant approach was used to estimate nationwide emissions and impacts
for the source category. This model plant approach used facility
average emission levels from the 2006 Toxics Release Inventory (TRI)
for chromium and manganese. The commenter criticized the development of
average emission rates from such a limited data set. To broaden the
data set, TRI data were obtained for every facility reporting NAICS
code 311119 and/or SIC 3048 for the years 1990 through 2007. There were
over 10,000 facilities reporting these NAICS/SIC codes over these 18
years, averaging just over 570 facilities per year. On average, there
were 134 facilities reporting manganese emissions each year and 2
reporting chromium. These data were used to calculate new facility
average manganese and chromium emission rates, which were used in the
revised analyses.
Production Level To Calculate PM Emission Factor. In the proposal
analyses, the facility average PM emission rate from the 2002 NEI for
emission sources after the point in the process when chromium or
manganese would be added was divided by the average production rate
from the facilities that responded to the EPA questionnaire to obtain
an emission factor in units of tons per year PM emissions per tpd
production level. The commenter indicated that this average production
level used, 177 tpd, was not representative of the facilities in the
NEI. They ``conservatively estimated that the average production that
occurred at those facilities listed in the 2002 NEI exceeded 500 tpd.''
In the revised analysis, the PM emissions factor was calculated based
on the production level of 500 tpd provided by the commenter.
Cyclone Efficiency for PM2.5. The impacts analysis for the proposed
rule assumed that cyclones would achieve a 95 percent reduction
efficiency for PM2.5. An efficiency chart provided by a
commenter shows cyclone efficiencies of approximately 30 percent for
PM2.5. This value was used in the revised analysis.
2. Summary of Revised Results
The results of the revised impacts analysis showed a decrease in
the PM emissions and increases in the manganese, chromium, and
PM2.5 emissions. The revised emissions levels prior to the
implementation of this regulation are 8.2 tons per year of chromium,
195 tons per year of manganese, around 11,000 tons per year of both PM
and PM2.5.
The revised analysis also shows higher levels of chromium and
manganese emission reductions and lower levels of both PM and
PM2.5 reductions. Since the costs were not impacted by the
changes to the analyses, the cost effectiveness of the controls were
lower for the chromium and manganese and higher for the PM and
PM2.5. Cost effectiveness values are discussed further in
the revised impacts memo which is in the docket. Based on the comments,
we did change the impacts, but none of these conclusions affect our
choice of GACT.
H. Title V Requirements
Comment: Several commenters agreed with the proposed title V permit
exemption, noting such factors as the adequacy of existing state
programs to ensure compliance, the additional economic and other
burdens imposed by title V permitting, and the lack of technical
resources to comply with permitting requirements for facilities that
are mostly small businesses.
Response: We acknowledge the commenters' support for the exemption
from title V permitting requirements in this rule.
Comment: One commenter argued that the agency's proposal to exempt
the area source category from title V requirements is unlawful and
arbitrary. The commenter states that section 502(a) of the CAA
authorizes EPA to exempt area source categories from title V permitting
requirements if the Administrator finds that compliance with such
requirements is ``impracticable, infeasible or unnecessarily
burdensome.'' 42 U.S.C. 7661a(a). The commenter notes that EPA did not
claim that title V requirements are impracticable or infeasible for the
source category it proposes to exempt, but that EPA instead relied
entirely on its claim that title V would be ``unnecessarily
burdensome.''
Response: Section 502(a) of the CAA states, in relevant part, that:
* * * [t]he Administrator may, in the Administrator's discretion
and consistent with the applicable provisions of this chapter,
promulgate regulations to exempt one or more source categories (in
whole or in part) from the requirements of this subsection if the
Administrator finds that compliance with such requirements is
impracticable, infeasible, or unnecessarily burdensome on such
categories, except that the Administrator may not exempt any major
source from such regulations. See 42 U.S.C. section 7661a(a).
The statute plainly vests the Administrator with discretion to
determine when it is appropriate to exempt non-major (i.e., area)
sources of air pollution from the requirements of title V. The
commenter correctly notes that EPA based the proposed exemptions solely
on a determination that title V is ``unnecessarily burdensome,'' and
did not rely on whether the requirements of title V are
``impracticable'' or ``infeasible'', which are alternative bases for
exempting area sources from title V.
To the extent the commenter is asserting that EPA must determine
that all three criteria in CAA section 502 are met before an area
source category can be exempted from title V, the commenter misreads
the statute. The statute expressly provides that EPA may exempt an area
source category from title V requirements if EPA determines that the
requirements are ``impracticable, infeasible or
[[Page 540]]
unnecessarily burdensome.'' See CAA section 502 (emphasis added). If
Congress had wanted to require that all three criteria be met before a
category could be exempted from title V, it would have stated so by
using the word ``and,'' in place of ``or''.
Comment: One commenter stated that, in order to demonstrate that
compliance with title V would be ``unnecessarily burdensome,'' EPA must
show, among other things, that the ``burden'' of compliance is
unnecessary. According to the commenter, by promulgating title V,
Congress indicated that it viewed the burden imposed by its
requirements as necessary as a general rule. The commenter maintained
that the title V requirements provide many benefits that Congress
viewed as necessary. Thus, in the commenter's view, EPA must show why,
for any given category, special circumstances make compliance
unnecessary. The commenter believed that EPA has not made that showing
for the category it proposes to exempt.
Response: EPA does not agree with the commenter's characterization
of the demonstration required for determining that title V is
unnecessarily burdensome for an area source category. As stated above,
the CAA provides the Administrator discretion to exempt an area source
category from title V if he determines that compliance with title V
requirements is ``impracticable, infeasible, or unnecessarily
burdensome'' on an area source category. See CAA section 502(a). In
December 2005, in a national rulemaking, EPA interpreted the term
``unnecessarily burdensome'' in CAA section 502 and developed a four-
factor balancing test for determining whether title V is unnecessarily
burdensome for a particular area source category, such that an
exemption from title V is appropriate. See 70 FR 75320, December 19,
2005 (``Exemption Rule''). In addition to interpreting the term
``unnecessarily burdensome'' and developing the four-factor balancing
test in the Exemption Rule, EPA applied the test to certain area source
categories.
The four factors that EPA identified in the Exemption Rule for
determining whether title V is unnecessarily burdensome on a particular
area source category include: (1) Whether title V would result in
significant improvements to the compliance requirements, including
monitoring, recordkeeping, and reporting, that are proposed for an area
source category (70 FR 75323); (2) whether title V permitting would
impose significant burdens on the area source category and whether the
burdens would be aggravated by any difficulty the sources may have in
obtaining assistance from permitting agencies (70 FR 75324); (3)
whether the costs of title V permitting for the area source category
would be justified, taking into consideration any potential gains in
compliance likely to occur for such sources (70 FR 75325); and (4)
whether there are implementation and enforcement programs in place that
are sufficient to assure compliance with the NESHAP for the area source
category, without relying on title V permits (70 FR 75326).\4\
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\4\ In the Exemption Rule, in addition to determining whether
compliance with title V requirements would be unnecessarily
burdensome on an area source category, we considered, consistent
with the guidance provided by the legislative history of section
502(a), whether exempting the area source category would adversely
affect public health, welfare or the environment. See 72 FR 15254-
15255, March 25, 2005. As discussed in the proposed rule and below,
after conducting the four-factor balancing test and determining that
title V requirements would be unnecessarily burdensome on the area
source categories at issue here, we examined whether the exemption
from title V would adversely affect public health, welfare and the
environment, and found that it would not.
---------------------------------------------------------------------------
In discussing the above factors in the Exemption Rule, we explained
that we considered on ``a case-by-case basis the extent to which one or
more of the four factors supported title V exemptions for a given
source category, and then we assessed whether considered together those
factors demonstrated that compliance with title V requirements would be
`unnecessarily burdensome' on the category, consistent with section
502(a) of the Act.'' See 70 FR 75323. Thus, we concluded that not all
of the four factors must weigh in favor of exemption for EPA to
determine that title V is unnecessarily burdensome for a particular
area source category. Instead, the factors are to be considered in
combination and EPA determines whether the factors, taken together,
support an exemption from title V for a particular source category.
The commenter asserts that ``EPA must show * * * that the
``burden'' of compliance is unnecessary.'' This is not, however, one of
the four factors that we developed in the Exemption Rule in
interpreting the term ``unnecessarily burdensome'' in CAA section 502,
but rather a new test that the commenter maintains EPA ``must'' meet in
determining what is ``unnecessarily burdensome'' under CAA section 502.
EPA did not re-open its interpretation of the term ``unnecessarily
burdensome'' in CAA section 502 in the July 27, 2009 proposed rule for
the category at issue in this rule. Rather, we applied the four-factor
balancing test articulated in the Exemption Rule to the source category
for which we proposed title V exemption. Had we sought to re-open our
interpretation of the term ``unnecessarily burdensome'' in CAA section
502 and modify it from what was articulated in the Exemption Rule, we
would have stated so in the July 27, 2009 proposed rule and solicited
comments on a revised interpretation, which we did not do. Accordingly,
we reject the commenter's attempt to create a new test for determining
what constitutes ``unnecessarily burdensome'' under CAA section 502, as
that issue falls outside the purview of this rulemaking.\5\
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\5\ If the commenter objected to our interpretation of the term
``unnecessarily burdensome'' in the Exemption Rule, it should have
commented on, and challenged, that rule. Any challenge to the
Exemption Rule is now time barred by CAA section 307(b). Although we
received comments on the title V Exemption Rule during the
rulemaking process, no one sought judicial review of that rule.
---------------------------------------------------------------------------
Furthermore, we believe that the commenter's position that ``EPA
must show * * * that the `burden' of compliance is unnecessary'' is
unreasonable and contrary to Congressional intent concerning the
applicability of title V to area sources. Congress intended to treat
area sources differently under title V, as it expressly authorized the
EPA Administrator to exempt such sources from the requirements of title
V at her discretion. There are several instances throughout the CAA
where Congress chose to treat major sources differently than non-major
sources, as it did in CAA section 502. Moreover, although the commenter
espouses a new interpretation of the term `unnecessarily burdensome' in
CAA section 502 and attempts to create a new test for determining
whether the requirements of title V are 'unnecessarily burdensome' for
an area source category, the commenter does not explain why EPA's
interpretation of the term `unnecessarily burdensome' is arbitrary,
capricious or otherwise not in accordance with law. We maintain that
our interpretation of the term `unnecessarily burdensome' in section
502, as set forth in the Exemption Rule, is reasonable.
Comment: One commenter stated that exempting a source category from
title V permitting requirements deprives both the public generally and
individual members of the public who would obtain and use permitting
information from the benefit of citizen oversight and enforcement that
Congress plainly viewed as necessary. According to the commenter, the
text and legislative history of the CAA provide that Congress intended
ordinary citizens to be able to get emissions and compliance
information about air toxics sources and
[[Page 541]]
to be able to use that information in enforcement actions and in public
policy decisions on a state and local level. The commenter stated that
Congress did not think that enforcement by states or other government
entities was enough; if it had, Congress would not have enacted the
citizen suit provisions, and the legislative history of the CAA would
not show that Congress viewed citizens' access to information and
ability to enforce CAA requirements as highly important both as an
individual right and as a crucial means to ensuring compliance.
According to the commenter, if a source does not have a title V permit,
it is difficult or impossible--depending on the laws, regulations and
practices of the state in which the source operates--for a member of
the public to obtain relevant information about its emissions and
compliance status. The commenter stated that, likewise, it is difficult
or impossible for citizens to bring enforcement actions. The commenter
continued that EPA does not claim--far less demonstrate with
substantial evidence--that citizens would have the same ability to
obtain compliance and emissions information about sources in the
category it proposes to exempt without title V permits. The commenter
also said that, likewise, EPA does not claim--far less demonstrate with
substantial evidence--that citizens would have the same enforcement
ability. Thus, according to the commenter, the exemption EPA proposes
plainly eliminates benefits that Congress thought necessary. The
commenter claimed that to, justify its exemption, EPA would have to
show that the informational and enforcement benefits that Congress
intended title V to confer--benefits which the commenter argues are
eliminated by the exemptions--are for some reason unnecessary with
respect to the category it proposes to exempt. The commenter concluded
that EPA does not even acknowledge these benefits of title V, far less
explain why they are unnecessary, and that for this reason alone, EPA's
proposed exemptions are unlawful and arbitrary.
Response: Once again, the commenter attempts to create a new test
for determining whether the requirements of title V are ``unnecessarily
burdensome'' on an area source category. Specifically, the commenter
argues that EPA does not claim or demonstrate with substantial evidence
that citizens would have the same access to information and the same
ability to enforce under these NESHAP, absent title V. The commenter's
position represents a significant revision of the fourth factor that
EPA developed in the Exemption Rule in interpreting the term
``unnecessarily burdensome'' in CAA section 502. For all of the reasons
explained above, the commenter's attempt to create a new test for EPA
to meet in determining whether title V is ``unnecessarily burdensome''
on an area source category cannot be sustained. Moreover, EPA's
interpretation of the term ``unnecessarily burdensome'' in CAA section
502 is reasonable.
EPA reasonably applied the four factors to the facts of the
category at issue in this rule, and the commenter has not identified
any flaw in EPA's application of the four factor test to the area
source category at issue here. Moreover, as explained in the proposal,
we considered implementation and enforcement issues in the fourth
factor of the four-factor balancing test. Specifically, the fourth
factor of EPA's unnecessarily burdensome analysis provides that EPA
will consider whether there are implementation and enforcement programs
in place that are sufficient to assure compliance with the NESHAP
without relying on title V permits. See 70 FR 75326.
In applying the fourth factor here, EPA determined that there are
adequate enforcement programs in place to assure compliance with the
CAA. As stated in the proposal, we believe that state-delegated
programs are sufficient to assure compliance with the NESHAP and that
States must have adequate programs to enforce section 112 requirements
and provide assurances that they will enforce the NESHAP before EPA
will delegate the program. In addition, EPA retains authority to
enforce this NESHAP under the CAA. See 74 FR 36988. The commenter does
not challenge the conclusion that there are adequate state and Federal
programs in place to ensure compliance with and enforcement of the
NESHAP. Instead, the commenter provides an unsubstantiated assertion
that information about compliance by the area sources with this NESHAP
will not be as accessible to the public as information provided to a
State pursuant to title V. The commenter does not, however, provide any
information that States will treat information submitted under these
NESHAP differently than information submitted pursuant to a title V
permit.
Even accepting the commenter's assertions that it is more difficult
for citizens to enforce the NESHAP absent a title V permit, which we
dispute, in evaluating the fourth factor in EPA's balancing test, EPA
concluded that there are adequate implementation and enforcement
programs in place to enforce the NESHAP. The commenter has provided no
information to the contrary or explained how the absence of title V
actually impairs the ability of citizens to enforce the provisions of
these NESHAP.
Furthermore, the fourth factor is one factor that we evaluated in
determining if the title V requirements were unnecessarily burdensome.
As explained above, we considered that factor together with the other
factors and determined that it was appropriate to finalize the proposed
exemption at issue in this rule.
Comment: One commenter explained that title V provides important
monitoring benefits, and, according to the commenter, EPA assumes that
title V monitoring would not add any monitoring requirements beyond
those required by the regulations for the category. The commenter said
that in its proposal EPA proposed to require ``continuous parameter
monitoring and periodic recording of the parameter for the required
control device to assure compliance. 74 FR at 36987.'' The commenter
further states that ``EPA argues that its proposed standard, by
including these requirements, provides monitoring `sufficient to assure
compliance' with the requirements of the proposed rule. Id.'' The
commenter maintains that EPA made conclusory assertions and that the
Agency failed to provide any evidence to demonstrate that the proposed
monitoring requirements will assure compliance with the NESHAP for the
exempt sources. The commenter stated that, for this reason as well, its
claim that title V requirements are ``unnecessarily burdensome'' is
arbitrary and capricious, and its exemption is unlawful and arbitrary
and capricious.
Response: As noted in the earlier comment, EPA used the four-factor
test to determine if title V requirements were unnecessarily
burdensome. In the first factor, EPA considers whether imposition of
title V requirements would result in significant improvements to the
compliance requirements that are proposed for the area source
categories. See 74 FR 36987. It is in the context of this first factor
that EPA evaluates the monitoring, recordkeeping and reporting
requirements of the proposed NESHAP to determine the extent to which
those requirements are consistent with the requirements of title V. See
70 FR 75323.
The commenter asserts that ``EPA argues that its proposed standard,
by including these requirements, `provides monitoring sufficient to
assure
[[Page 542]]
compliance with the proposed rule.' See Fed Reg. 74 At 36987.'' In the
proposal, we stated:
The proposed rule requires direct monitoring of control device
parameters, recordkeeping that also may serve as monitoring, and
deviation and other annual reporting to assure compliance with the
requirements.
The monitoring component of the first factor favors title V
exemption. For the management practices, this proposed standard
provides monitoring in the form of recordkeeping that would assure
compliance with the requirements of the proposed rule. Monitoring by
means other than recordkeeping for the management practices is not
practical or appropriate. Records are required to ensure that the
management practices are followed. The rule requires continuous
parameter monitoring and periodic recording of the parameter for the
required control device to assure compliance. The proposed rule
requires the owner or operator to record the date and results of
periodic control device inspections, as well as any actions taken in
response to findings of the inspections. See 74 FR 36987.
As the above excerpt states, we required continuous parameter
monitoring and periodic records of the parameter for new and existing
affected sources when the rule requires the installation of such
controls. This monitoring is in addition to the recordkeeping that
serves as monitoring for the management practices. The commenter does
not provide any evidence that contradicts the conclusion that the
proposed monitoring requirements are sufficient to assure compliance
with the standards in the rule.
Based on the foregoing, we considered whether title V monitoring
requirements would lead to significant improvements in the monitoring
requirements in the proposed NESHAP and determined that they would not.
We believe that the monitoring, recordkeeping and reporting
requirements in this area source rule can assure compliance.
For the reasons described above and in the proposed rule, the first
factor supports exempting this area source category from title V
requirements. Assuming, for arguments sake, that the first factor alone
cannot support the exemption, the four-factor balancing test requires
EPA to examine the factors in combination and determine whether the
factors, viewed together, weigh in favor of exemption. See 74 FR 36987.
As explained above, we determined that the factors, weighed together,
support exemption of the area source categories from title V.
Comment: One commenter believes that EPA cannot justify exempting
the source from title V by asserting that compliance with title V
requirements poses a ``significant burden.'' According to the
commenter, regardless of whether EPA regards the burden as
``significant,'' the Agency may not exempt a category from compliance
with title V requirements unless compliance is ``unnecessarily
burdensome.'' Or in the commenter's words, that ``the compliance burden
is especially great.'' The commenter stated that in any event, EPA's
claims about the alleged burden of compliance are entirely conclusory
and could be applied equally to any major or area source category;
therefore, the commenter claims that EPA has not justified why this
source category should be exempt from title V permitting as opposed to
any other category.
Response: The commenter appears to take issue with the formulation
of the second factor of the four-factor balancing test. Specifically,
the commenter states that EPA must determine that title V compliance is
``unnecessarily burdensome'' and not a ``significant burden,'' as
expressed in the second factor of the four-factor balancing test.
As we have stated before, we found the burden placed on the
prepared feed manufacturing area source category in complying with
title V requirements is unnecessarily burdensome when we applied the
four-factor balancing test. We did not re-open EPA's interpretation of
the term ``unnecessarily burdensome'' in this rule. As explained above,
we maintain that the Agency's interpretation of the term
``unnecessarily burdensome,'' as set forth in the Exemption Rule and
reiterated in the proposal to this rule, is reasonable.
In applying the four-factor test, we properly analyzed the second
factor, i.e., will title V permitting impose a significant burden on
the area source, and will that burden be aggravated by any difficulty
that the source may have in obtaining assistance from the permitting
agency. See 74 FR 36988. EPA found that the sources would have a
significant burden because we estimated that the average cost of
obtaining and complying with a title V permit in general was $65,700
per source for a 5-year permit period. 74 FR 36988. In addition, EPA
found that most of the sources affected by this rule are small
businesses. Small businesses often lack the technical resources to
comply with the permitting requirements and the financial resources
needed to hire the necessary staff or outside consultants. EPA found
that not only is the individual cost of permitting significant for this
source category (i.e., $65,700) but also that the cost to this source
category with approximately 1,800 sources as a whole is significant.
Furthermore, given the number of affected sources in this source
category (i.e., approximately 1,800), it would likely be difficult for
them to obtain assistance from the permitting authorities. These
specific factors for the affected sources alone justify that EPA has
properly exempted the source category from title V. However, as
discussed in the proposal and above, EPA analyzed all of the four
factors in making its determination that these sources should be exempt
from title V permitting requirements; and we found that the totality of
these factors weighs heavily in favor of the exemption.
Comment: According to one commenter, EPA argued that compliance
with title V would not yield any gains in compliance with underlying
requirements in the relevant NESHAP (74 FR 36988). The commenter stated
that EPA's conclusory claim could be made equally with respect to any
major or area source category. According to the commenter, the Agency
provides no specific reasons to believe that the additional
informational, monitoring, reporting, certification, and enforcement
requirements that exist in title V, but not in this NESHAP, would not
provide additional compliance benefits. The commenter also stated that
the only basis for EPA's claim is, apparently, its beliefs that those
additional requirements never confer additional compliance benefits.
According to the commenter, by advancing such argument, EPA merely
seeks to elevate its own policy judgment over Congress' decisions
reflected in the CAA's text and legislative history.
Response: The commenter takes out of context certain statements in
the proposed rule concerning the factors used in the balancing test to
determine if imposition of title V permit requirements is unnecessarily
burdensome for the prepared feeds manufacturing area source category.
The commenter also mischaracterizes the first of the four-factor
balancing test with regard to determining whether imposition of title V
would result in significant improvements in compliance. In addition,
the commenter mischaracterizes the analysis in the third factor of the
balancing test which instructs EPA to take into account any gains in
compliance that would result from the imposition of the title V
requirements.
[[Page 543]]
First, EPA nowhere states, nor does it believe, that title V never
confers additional compliance benefits as the commenter asserts. While
EPA recognizes that requiring a title V permit offers additional
compliance options, the statute provides that EPA must assess whether
compliance with title V would be unnecessarily burdensome to the
specific area sources at issue. For the source category subject to this
rulemaking, EPA concluded that requiring title V permits would be
unnecessarily burdensome.
Second, the commenter mischaracterizes the first factor by
asserting that EPA must demonstrate that title V will provide no
additional compliance benefits. The first factor calls for a
consideration of ``whether title V would result in significant
improvements to the compliance requirements, including monitoring,
recordkeeping, and reporting, that are proposed for an area source
category.'' Thus, contrary to the commenter's assertion, the inquiry
under the first factor is not whether title V will provide any
compliance benefit, but rather whether it will provide significant
improvements in compliance requirements.
The monitoring, recordkeeping and reporting requirements in the
rule are sufficient to assure compliance with the requirements of this
rule, consistent with the goal of title V permitting. For example, in
the Initial Notification, the source must include information about the
facility and its operations. The source must also certify how it is
complying and that it has complied with the required management
practices and associated recordkeeping requirements. The source must
further certify that it has installed controls, if necessary to meet
the final standards and that it is monitoring the controls, as required
by the final rule and keeping all necessary records regarding the
inspections of the controls and any corrective actions taken as a
result of seeing changes in the operation of the control equipment. See
section 63.11624 in the final rule. The source must also keep records
and conduct inspections to document that it is complying with the
management practices finalized in this rule. See section 63.11624 in
the final rule. The source must monitor and demonstrate cyclone
performance efficiency and, if applicable, must begin corrective action
and record the specifics about the corrective action upon seeing any
deviation in the pressure drop or fan amperage in the control
equipment. The source must also submit deviation reports to the
permitting agency in the annual report if there has been a deviation in
the requirements of the rule. See section 63.11624 in the final rule.
EPA believes that these requirements in the rule itself provide
sufficient basis to assure compliance with the final emission
standards, and does not believe that the title V requirements, if
applicable to these sources, would offer significant improvements in
the compliance of the sources with the rule.
Third, the commenter incorrectly characterizes our statements in
the proposed rule concerning our application of the third factor. Under
the third factor, EPA evaluates ``whether the costs of title V
permitting for the area source category would be justified, taking into
consideration any potential gains in compliance likely to occur for
such sources.'' Contrary to what the commenter alleges, EPA did not
state in the proposed rule that compliance with title V would not yield
any gains in compliance with the underlying requirements in the
relevant NESHAP, nor does factor three require such a determination.
Instead, consistent with the third factor, we considered whether the
costs of title V are justified in light of any potential gains in
compliance. In other words, EPA must view the costs of title V
permitting requirements, considering any improvement in compliance
above what the rule requires. EPA reviewed the area source category at
issue and determined that the vast majority of the approximately 1,800
sources that would be subject to the rule currently do not have a title
V permit. As stated in the proposal, EPA estimated that the average
cost of obtaining and complying with a title V permit was $65,700 per
source for a 5-year permit period, including fees. See Information
Collection Request for Part 70 Operating Permit Regulations, 72 FR
32290, June 12, 2007, EPA ICR Number 1587.07. Based on this
information, EPA determined that there is a significant cost burden to
the industry to require title V permitting for all the sources subject
to the rule. In addition, in analyzing factor one, EPA found that
imposition of the title V requirements offers no significant
improvements in compliance. In considering the third factor, we stated
in part that, ``Because the costs of compliance with title V are so
high, and the potential for gains in compliance is low, title V
permitting is not justified for this source category. Accordingly, the
third factor supports the proposed title V exemptions for this area
source category.'' See 74 FR 36988. Most importantly, EPA considered
all four factors in the balancing test in determining whether title V
was unnecessarily burdensome on the prepared feeds manufacturing area
source category. EPA found it reasonable after considering all four
factors to exempt this source category from the permitting requirements
in title V. Because the commenter's statements do not demonstrate a
flaw in EPA's application of the four-factor balancing test to the
specific facts of the source category at issue here, the comments
provide no basis for the Agency to reconsider its proposal to exempt
this area source category from title V.
Comment: According to one commenter, ``[t]he agency does not
identify any aspect of any of the underlying NESHAP showing that with
respect to these specific NESHAP--unlike all the other major and area
source NESHAP it has issued without title V exemptions--title V
compliance is unnecessary.'' Instead, according to the commenter, EPA
merely pointed to existing State requirements and the potential for
actions by States and EPA that are generally applicable to all
categories (along with some small business and voluntary programs). The
commenter said that, absent a showing by EPA that distinguishes the
sources it proposes to exempt from other sources, however, the Agency's
argument boils down to the claim that it generally views title V
requirements as unnecessary. The commenter stated that, while this may
be EPA's view, it was not Congress' view when Congress enacted title V,
and a general view that title V is unnecessary does not suffice to show
that title V compliance is unnecessarily burdensome.
Response: The commenter again takes issue with the Agency's test
for determining whether title V is unnecessarily burdensome, as
developed in the Exemption Rule. Our interpretation of the term
``unnecessarily burdensome'' is not the subject of this rulemaking. In
any event, as explained above, we believe the Agency's interpretation
of the term ``unnecessarily burdensome'' is a reasonable one. To the
extent the commenter asserts that our application of the fourth factor
is flawed, we disagree. The fourth factor involves a determination as
to whether there are implementation and enforcement programs in place
that are sufficient to assure compliance with the rule without relying
on the title V permits. In discussing the fourth factor in the
proposal, EPA states that prior to delegating implementation and
enforcement to a State, EPA must ensure that the State has programs in
place to enforce the rule. EPA believes that these programs will be
sufficient to assure
[[Page 544]]
compliance with the rule. EPA also retains authority to enforce this
NESHAP anytime under CAA sections 112, 113 and 114. EPA also noted
other factors in the proposal that together are sufficient to assure
compliance with this area source.
The commenter argues that EPA cannot exempt this area source
category from title V permitting requirements because ``[t]he agency
does not identify any aspect of any of the underlying NESHAP showing
that with respect to these specific NESHAP--unlike all the other major
and area source NESHAP it has issued without title V exemptions--title
V compliance is unnecessary'' (emphasis added). As an initial matter,
EPA cannot exempt major sources from title V permitting. 42 U.S.C.
502(a). As for area sources, the standard that the commenter proposes--
that EPA must show that ``title V compliance is unnecessary''--is not
consistent with the standard the Agency established in the Exemption
Rule and applied in the proposed rule in determining if title V
requirements are unnecessarily burdensome for the source category at
issue.
Furthermore, we disagree that the basis for excluding the area
source prepared feeds manufacturing category from title V requirements
is generally applicable to any source category. As explained in the
proposal preamble and above, we balanced the four factors considering
the facts and circumstances of the source category at issue in this
rule. For example, in assessing whether the costs of requiring the
sources to obtain a title V permit was burdensome, we concluded that
because the vast majority of the sources did not have a title V permit,
the costs imposed on the source category were significant compared to
the additional compliance benefits offered by the title V permitting
process.
Comment: One commenter stated that the legislative history of the
CAA shows that Congress did not intend EPA to exempt source categories
from compliance with title V unless doing so would not adversely affect
public health, welfare, or the environment. See 74 FR 36988.
Nonetheless, according to the commenter, EPA does not make any showing
that its exemption would not have adverse impacts on health, welfare
and the environment. The commenter stated that, instead, EPA offered
only the conclusory assertion that ``the level of control would remain
the same'' whether title V permits are required or not 74 FR 36988-89.
The commenter continued by stating that EPA relied entirely on the
conclusory arguments advanced elsewhere in its proposal that compliance
with title V would not yield additional compliance with the underlying
NESHAP. The commenter stated that those arguments are wrong for the
reasons given above, and therefore EPA's claims about public health,
welfare and the environment are wrong too. The commenter also stated
that Congress enacted title V for a reason: To assure compliance with
all applicable requirements and to empower citizens to get information
and enforce the CAA. The commenter said that those benefits--of which
EPA's proposed rule deprives the public--would improve compliance with
the underlying standards and thus have benefits for public health,
welfare and the environment. According to the commenter, EPA has not
demonstrated that these benefits are unnecessary with respect to any
specific source category, but again simply rests on its own apparent
belief that they are never necessary. The commenter concluded that, for
the reasons given above, the attempt to substitute EPA's judgment for
Congress' is unlawful and arbitrary.
Response: Congress gave the Administrator the authority to exempt
area sources from compliance with title V if, in his or her discretion,
the Administrator ``finds that compliance with [title V] is
impracticable, infeasible, or unnecessarily burdensome.'' See CAA
section 502(a). EPA has interpreted one of the three justifications for
exempting area sources, ``unnecessarily burdensome'', as requiring
consideration of the four factors discussed above. EPA applied these
four factors to the area source category subject to this rule and
concluded that requiring title V for this area source category would be
unnecessarily burdensome. In addition to determining that title V would
be unnecessarily burdensome on the prepared feed manufacturing area
source category, EPA also considered whether exempting the area source
category would adversely affect public health, welfare or the
environment. As explained in the proposal preamble, we concluded that
exempting the area source category at issue in this rule would not
adversely affect public health, welfare or the environment because the
level of control would be the same even if title V applied. We further
explained in the proposal preamble that the title V permit program does
not generally impose new substantive air quality control requirements
on sources, but instead requires that certain procedural measures be
followed, particularly with respect to determining compliance with
applicable requirements. The commenter has not provided any information
that exemption of this area source category from title V will adversely
affect public health, welfare or the environment.
VI. Impacts of the Final Standards
We project that the baseline PM emissions from the estimated 1,800
facilities in the prepared feeds source category are approximately
11,000 tons/yr, with approximatley 11,000 tons/yr of PM2.5,
195 tons/yr of manganese and just over 8 tons/yr of chromium. We
believe that management practices are already being implemented
throughout the industry. Therefore, we do not expect any additional
reductions in chromium compound, manganese compound, or general PM
emissions from these measures. We estimate that the requirement to
install cyclones on the pelleting processes at the facilities with
average daily feed production levels exceeding 50 tpd will result in
emission reductions of around 1,100 tons/yr of PM, 100 tons/yr of
PM2.5, and approximately 20 tons/yr of manganese and
chromium emissions. While cyclones do remove PM from the air stream,
these solids are typically recycled back to the process. Therefore, we
do not anticipate any significant indirect or secondary air impacts of
this rule as proposed. In addition, we do not expect any non-air
health, environmental, or energy impacts.
As noted above, we believe all prepared feed manufacturing
facilities already implement the proposed management practices.
Therefore, there will be no additional costs for these measures. We
estimate that the nationwide capital costs for the installation of
cyclones on the pelleting cooling operations at the large facilities
will be around $2.5 million. The associated annual costs are estimated
to be just over $3 million/year.
Many of the plants in this analysis have fewer than 500 employees,
which is the threshold to be considered ``small'' by the Small Business
Administration. It is currently estimated that under 2 percent of the
facilities (26 facilities) in the category would potentially need to
install new cyclones under the proposed regulatory alternative. The
potential impact on the industry as a percentage of the value of
shipments is small. Under the proposed regulatory alternative, the
largest potential impact is estimated as 0.96 percent of shipments for
a subset of firms with an overall impact of 0.94 percent of shipments
for the industry as a whole. As a result, this action is not expected
to have a significant impact on
[[Page 545]]
a substantial number of small entities or the economy as a whole,
regardless of whether or not the firms in the industry are able to pass
along any increases in their costs to the consumers.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is a ``significant regulatory action'' under the terms
of Executive Order 12866 (58 FR 51735, October 4, 1993) because it may
raise novel legal or policy issues and is, therefore, subject to review
under the Executive Order. Accordingly, EPA submitted this action to
OMB for review under Executive Order 12866 and any changes made in
response to OMB recommendations have been documented in the docket for
this action.
B. Paperwork Reduction Act
The information collection requirements in this final rule have
been submitted for approval to OMB under the Paperwork Reduction Act,
44 U.S.C. 501 et seq. The Information Collection Request (ICR) document
prepared by EPA has been assigned EPA ICR number 2354.02.
The recordkeeping and reporting requirements in this final rule are
based on the requirements in EPA's NESHAP General Provisions (40 CFR
part 63, subpart A). The recordkeeping and reporting requirements in
the General Provisions are mandatory pursuant to section 114 of the CAA
(42 U.S.C. 7414). All information other than emissions data submitted
to EPA pursuant to the information collection requirements for which a
claim of confidentiality is made is safeguarded according to CAA
section 114(c) and the Agency's implementing regulations at 40 CFR part
2, subpart B.
This NESHAP requires Prepared Feeds Manufacturing area sources to
submit an Initial Notification and a Notification of Compliance Status
according to the requirements in 40 CFR 63.9 of the General Provisions
(subpart A). The annual burden for this information collection averaged
over the first three years of this ICR is estimated to be a total of
27,000 labor hours per year at a cost of $1.7 million or approximately
$980 per facility.
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
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule
would not have a significant economic impact on a substantial number of
small entities. Small entities include small businesses, small not-for-
profit enterprises, and small governmental jurisdictions.
For the purposes of assessing the impacts of this rule on small
entities, small entity is defined as: (1) A small business that meets
the Small Business Administration size standards for small businesses
found at 13 CFR 121.201; (2) a small governmental jurisdiction that is
a government of a city, county, town, school district, or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of this rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This rule is
estimated to impact a total of almost 1,800 area source prepared feeds
manufacturing facilities. We estimate that all these facilities may be
small entities. We have determined that small entity compliance costs,
as assessed by the facilities' cost-to-sales ratio, are expected to be
less than 0.004 percent for the estimated 26 facilities that would not
initially be in compliance. Although this final rule contains
requirements for new area sources, we are not aware of any new area
sources being constructed now or planned in the next three years, and
consequently, we did not estimate any impacts for new sources.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce such impact. The standards represent practices and
controls that are common throughout the prepared feeds manufacturing
industry. The standards also require only the essential recordkeeping
and reporting needed to demonstrate and verify compliance. These
standards were developed in consultation with small business
representatives on the State and national level and the trade
associations that represent small businesses.
D. Unfunded Mandates Reform Act
This final rule does not contain a Federal mandate that may result
in expenditures of $100 million or more for State, local, and Tribal
governments, in the aggregate, or to the private sector in any one
year. This rule is not expected to impact State, local, or Tribal
governments. The nationwide annualized cost of this rule for affected
industrial sources is around $3 million/yr. Thus, this rule would not
be subject to the requirements of sections 202 and 205 of the Unfunded
Mandates Reform Act (UMRA).
This final rule would also not be subject to the requirements of
section 203 of UMRA because it contains no regulatory requirements that
might significantly or uniquely affect small governments. The rule
would not apply to such governments and would impose no obligations
upon them.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This rule does not impose any
requirements on State and local governments. Thus, Executive Order
13132 does not apply to this final rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule
imposes no requirements on Tribal governments; thus, Executive Order
13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the Order
has the potential to influence the regulation. This action is not
subject to EO 13045 because it is based solely on technology
performance.
[[Page 546]]
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This final rule is not a ``significant energy action'' as defined
in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that this
rule is not likely to have any adverse energy effects. Existing energy
requirements for this industry would not be significantly impacted by
the additional controls or other equipment that may be required by this
rule.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 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. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
The rulemaking involves technical standards. Therefore, the Agency
conducted a search to identify potentially applicable voluntary
consensus standards. However, we identified no such standards, and none
were brought to our attention in comments. Therefore, EPA has decided
to use technical standard Method 5 of 40 CFR part 60, Appendix A in the
National Emissions Standards for Hazardous Air Pollutants for Area
Sources: Prepared Feeds Manufacturing--40 CFR part 63, subpart DDDDDD.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this final rule would not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. This rule establishes national standards for the
Prepared Feeds Manufacturing area source category; this will reduce HAP
emissions, therefore decreasing the amount of emissions to which all
affected populations are exposed.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of Congress and to the Comptroller General
of the United States. EPA will submit a report containing this final
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of this final rule in the Federal Register. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2). This final rule will be effective on January 5, 2010.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Dated: December 16, 2009.
Lisa P. Jackson,
Administrator.
0
For the reasons stated in the preamble, title 40, chapter I, part 63 of
the Code of Federal Regulations is amended as follows:
PART 63--[AMENDED]
0
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
0
2. Part 63 is amended by adding subpart DDDDDDD to read as follows:
Subpart DDDDDDD--National Emission Standards for Hazardous Air
Pollutants for Area Sources: Prepared Feeds Manufacturing
Applicability and Compliance Dates
Sec.
63.11619 Am I subject to this subpart?
63.11620 What are my compliance dates?
Standards, Monitoring, and Compliance Requirements
63.11621 What are the standards for new and existing prepared feeds
manufacturing facilities?
63.11622 What are the monitoring requirements for new and existing
sources?
63.11623 What are the testing requirements?
63.11624 What are the notification, reporting, and recordkeeping
requirements?
Other Requirements and Information
63.11625 What parts of the General Provisions apply to my facility?
63.11626 Who implements and enforces this subpart?
63.11627 What definitions apply to this subpart?
63.11628--63.11638 [Reserved]
Tables to Subpart DDDDDDD of Part 63
Table 1 to Subpart DDDDDDD of Part 63--Applicability of General
Provisions to Prepared Feeds Manufacturing Area Sources
Subpart DDDDDDD--National Emission Standards for Hazardous Air
Pollutants for Area Sources: Prepared Feeds Manufacturing
Applicability and Compliance Dates
Sec. 63.11619 Am I subject to this subpart?
(a) You are subject to this subpart if you own or operate a
prepared feeds manufacturing facility that uses a material containing
chromium or a material containing manganese and is an area source of
emissions of hazardous air pollutants (HAP).
(b) The provisions of this subpart apply to each new and existing
prepared feeds manufacturing affected source. A prepared feeds
manufacturing affected source is the collection of all equipment and
activities necessary to produce animal feed from the point in the
process where a material containing chromium or a material containing
manganese is added, to the point where the finished animal feed product
leaves the facility. This includes, but is not limited to, areas where
materials containing chromium and manganese are stored, areas where
materials
[[Page 547]]
containing chromium and manganese are temporarily stored prior to
addition to the feed at the mixer, mixing and grinding processes,
pelleting and pellet cooling processes, packing and bagging processes,
crumblers and screens, bulk loading operations, and all conveyors and
other equipment that transfer the feed materials throughout the
manufacturing facility.
(1) A prepared feeds manufacturing affected source is existing if
you commenced construction or reconstruction of the facility on or
before July 27, 2009.
(2) A prepared feeds manufacturing affected source is new if you
commenced construction or reconstruction of the facility after July 27,
2009.
(3) A collection of equipment and activities necessary to produce
animal feed at a prepared feeds manufacturing facility becomes an
affected source when you commence using a material containing chromium
or a material containing manganese.
(c) An affected source is no longer subject to this subpart if the
facility stops using materials containing chromium or manganese.
(d) This subpart does not apply to the facilities identified in
paragraphs (d)(1) and (2) of this section.
(1) Prepared feeds manufacturing facilities that do not add any
materials containing chromium or manganese to any product manufactured
at the facility.
(2) Research or laboratory facilities as defined in section
112(c)(7) of the Clean Air Act (CAA).
(e) You are exempt from the obligation to obtain a permit under 40
CFR part 70 or 40 CFR part 71, provided you are not otherwise required
by law to obtain a permit under 40 CFR 70.3(a) or 40 CFR 71.3.
Notwithstanding the previous sentence, you must continue to comply with
the provisions of this subpart.
Sec. 63.11620 What are my compliance dates?
(a) If you own or operate an existing affected source, you must
achieve compliance with the applicable provisions of this subpart by no
later than January 5, 2012.
(b) If you own or operate a new affected source, you must achieve
compliance with the applicable provisions of this subpart by January 5,
2010, or upon startup of your affected source, whichever is later.
(c) If you own or operate a facility that becomes an affected
source in accordance with Sec. 63.11619 after the applicable
compliance date in paragraphs (a) or (b) of this section, you must
achieve compliance with the applicable provisions of this subpart by
the date that you commence using a material containing manganese or a
material containing chromium.
(d) If the average daily feed production level exceeds 50 tons per
day for a calendar year for a facility not complying with the
requirement in Sec. 63.11621(e) to install and operate a cyclone to
control emissions from pelleting operations, you must comply with Sec.
63.11621(e) and all associated requirements by July 1 of the year
following the one-year period.
Standards, Monitoring, and Compliance Requirements
Sec. 63.11621 What are the standards for new and existing prepared
feed manufacturing facilities?
You must comply with the management practices and standards in
paragraphs (a) through (f) of this section at all times.
(a) In all areas of the affected source where materials containing
chromium or manganese are stored, used, or handled, you must comply
with the management practices in paragraphs (a)(1) and (2) of this
section.
(1) You must perform housekeeping measures to minimize excess dust.
These measures must include, but not be limited to, the practices
specified in paragraphs (a)(1)(i) through (iii) of this section.
(i) You must use either an industrial vacuum system or manual
sweeping to reduce the amount of dust;
(ii) At least once per month, you must remove dust from walls,
ledges, and equipment using low pressure air or by other means, and
then sweep or vacuum the area;
(iii) You must keep doors shut except during normal ingress and
egress.
(2) You must maintain and operate all process equipment in
accordance with manufacturer's specifications and in a manner to
minimize dust creation.
(b) You must store any raw materials containing chromium or
manganese in closed containers.
(c) The mixer where materials containing chromium or manganese are
added must be covered at all times when mixing is occurring, except
when the materials are being added to the mixer. Materials containing
chromium or manganese must be added to the mixer in a manner that
minimizes emissions.
(d) For the bulk loading process where prepared feed products
containing chromium or manganese are loaded into trucks or railcars,
you must use a device at the loadout end of each bulk loader to lessen
fugitive emissions by reducing the distance between the loading arm and
the truck or railcar.
(e) For the pelleting operations at prepared feeds manufacturing
facilities with an average daily feed production level exceeding 50
tons per day, you must capture emissions and route them to a cyclone
designed to reduce emissions of particulate matter by 95 percent or
greater. You must also comply with the provisions in paragraphs (e)(1)
through (3) of this section.
(1) You must demonstrate that the cyclone is designed to reduce
emissions of particulate matter by 95 percent or greater using one of
the methods specified in paragraphs (e)(1)(i) through (iii) of this
section.
(i) Manufacturer specifications;
(ii) Certification by a professional engineer or responsible
official; or
(iii) A performance test conducted in accordance with Sec.
63.11623 of this section.
(2) You must establish an inlet flow rate, inlet velocity, pressure
drop, or fan amperage range that represents proper operation of the
cyclone in accordance with the applicable requirement in paragraphs
(e)(2)(i), (ii), or (iii) of this section.
(i) If you demonstrate the cyclone design efficiency using
manufacturer specifications in accordance with paragraph (e)(1)(i) of
this section, the inlet flow rate, inlet velocity, pressure drop, or
fan amperage range that represents proper operation of the cyclone must
be provided by the manufacturer.
(ii) If you demonstrate the cyclone design efficiency using
certification by a professional engineer or responsible official in
accordance with paragraph (e)(1)(ii) of this section, this
certification must include calculations to establish an inlet flow
rate, inlet velocity, pressure drop, or fan amperage range that
represents proper operation of the cyclone.
(iii) If you demonstrate the cyclone design efficiency using a
performance test in accordance with paragraph (e)(1)(iii) of this
section, you must monitor the inlet flow rate, inlet velocity, pressure
drop, or fan amperage during the test and establish a range that
represents proper operation of the cyclone based on the data obtained
during the test.
(3) You must maintain and operate the cyclone in accordance with
manufacturer's specifications. If manufacturer's specifications are not
available, you must develop and follow standard maintenance and
operating
[[Page 548]]
procedures that ensure proper operation of the cyclone.
Sec. 63.11622 What are the monitoring requirements for new and
existing sources?
(a) If you own or operate an affected source required by Sec.
63.11621(d) to use a device at the loadout end of a bulk loader that
reduces fugitive emissions from a bulk loading process, you must
perform monthly inspections of each device to ensure it is in proper
working condition. You must record the results of these inspections in
accordance with Sec. 63.11624(c)(4) of this subpart.
(b) If you own or operate an affected source required by Sec.
63.11621(e) to install and operate a cyclone to control emissions from
pelleting operations, you must comply with the inspection and
monitoring requirements in paragraphs (b)(1) and (2) of this section.
(1) You must perform quarterly inspections of the cyclone for
corrosion, erosion, or any other damage that could result in air in-
leakage, and record the results in accordance with Sec.
63.11624(c)(5)(ii).
(2) You must monitor inlet flow rate, inlet velocity, pressure
drop, or fan amperage at least once per day when the pelleting process
is in operation. You must also record the inlet flow rate, inlet
velocity, pressure drop, or fan amperage in accordance with Sec.
63.11624(c)(5)(iii).
Sec. 63.11623 What are the testing requirements?
(a) If you are demonstrating that the cyclone required by Sec.
63.11621(e) is designed to reduce emissions of particulate matter by 95
percent or greater by the performance test option in Sec.
63.11621(e)(1)(iii), you must conduct a test in accordance with
paragraph (b) of this section and calculate the percent reduction in
accordance with paragraph (c) of this section.
(b) You must use Method 5 in Appendix A to part 60 to determine the
particulate matter mass rate at the inlet and outlet of the cyclone.
You must conduct at least three runs at the cyclone inlet and three
runs at the cyclone outlet. Each run must have a sampling time of at
least 60 minutes and a sample volume of at least 0.85 dscm (30 dscf).
(c) You must calculate the percent particulate matter reduction
using Equation 1.
[GRAPHIC] [TIFF OMITTED] TR05JA10.004
Where:
PM RED = particulate matter reduction, percent;
MINLET = Mass of particulate matter at the inlet of the
cyclone, dry basis, corrected to standard conditions, g/min;
MOUTLET = Mass of particulate matter at the outlet of the
cyclone, dry basis, corrected to standard conditions, g/min;
Sec. 63.11624 What are the notification, reporting, and recordkeeping
requirements?
(a) Notifications. You must submit the notifications identified in
paragraphs (a)(1) and (2) of this section.
(1) Initial Notification. If you are the owner of an affected
source you must submit an Initial Notification no later than May 5,
2010, or 120 days after you become subject to this subpart, whichever
is later. The Initial Notification must include the information
specified in paragraphs (a)(1)(i) through (iv) of this section.
(i) The name, address, phone number and e-mail address of the owner
and operator;
(ii) The address (physical location) of the affected source;
(iii) An identification of the relevant standard (i.e., this
subpart); and
(iv) A brief description of the operation.
(2) Notification of Compliance Status. If you are the owner of an
existing affected source, you must submit a Notification of Compliance
Status in accordance with Sec. 63.9(h) of the General Provisions on or
before May 4, 2012. If you are the owner or operator of a new affected
source, you must submit a Notification of Compliance Status within 120
days of initial startup, or by May 4, 2012, whichever is later. If you
own or operate an affected source that becomes an affected source in
accordance with Sec. 63.11619(b)(3) after the applicable compliance
date in Sec. 63.11620 (a) or (b), you must submit a Notification of
Compliance Status within 120 days of the date that you commence using
materials containing manganese or chromium. This Notification of
Compliance Status must include the information specified in paragraphs
(a)(2)(i) through (iv) of this section.
(i) Your company's name and address;
(ii) A statement by a responsible official with that official's
name, title, phone number, e-mail address and signature, certifying the
truth, accuracy, and completeness of the notification and a statement
of whether the source has complied with all the relevant standards and
other requirements of this subpart;
(iii) If you own or operate an affected source required by Sec.
63.11621(e) to install and operate a cyclone to control emissions from
pelleting operations, the inlet flow rate, inlet velocity, pressure
drop, or fan amperage range that constitutes proper operation of the
cyclone determined in accordance with Sec. 63.11621(e)(2).
(iv) If you own or operate an affected source that is not subject
to the requirement in Sec. 63.11621(e) to install and operate a
cyclone to control emissions from pelleting operations because your
initial average daily feed production level was 50 tpd or less,
documentation of your initial daily pelleting production level
determination.
(b) Annual compliance certification report. You must, by March 1 of
each year, prepare an annual compliance certification report for the
previous calendar year containing the information specified in
paragraphs (b)(1) through (b)(6) of this section.
(1) Your company's name and address.
(2) A statement by a responsible official with that official's
name, title, phone number, e-mail address and signature, certifying the
truth, accuracy, and completeness of the notification and a statement
of whether the source has complied with all the relevant standards and
other requirements of this subpart.
(3) If the source is not in compliance, include a description of
deviations from the applicable requirements, the time periods during
which the deviations occurred, and the corrective actions taken.
(4) Identification of all instances when the daily inlet flow rate,
inlet velocity, pressure drop, or fan amperage is outside range that
constitutes proper operation of the cyclone submitted as part of your
Notification of Compliance Status. In these instances, include the time
periods when this occurred and the corrective actions taken.
(5) If you own or operate an affected source that is not subject to
the requirement in Sec. 63.11621(e) to install
[[Page 549]]
and operate a cyclone to control emissions from pelleting operations
because your average daily feed production level was 50 tpd or less,
notification if your average daily feed production level for the
previous year exceeded 50 tpd.
(6) If you own or operate an affected source that was subject to
the requirement in Sec. 63.11621(e) to install and operate a cyclone
to control emissions from pelleting operations, notification if your
average daily feed production level for the previous year was 50 tpd or
less and that you are no longer complying with Sec. 63.11621(e).
(c) Records. You must maintain the records specified in paragraphs
(c)(1) through (5) of this section in accordance with paragraphs (c)(6)
through (8) of this section.
(1) As required in Sec. 63.10(b)(2)(xiv), you must keep a copy of
each notification that you submitted to comply with this subpart in
accordance with paragraph (a) of this section, and all documentation
supporting any Initial Notification or Notification of Compliance
Status that you submitted.
(2) You must keep a copy of each Annual Compliance Certification
prepared in accordance with paragraph (b) of this section.
(3) For each device used to comply with the requirements in Sec.
63.11621(d), you must keep the records of all inspections including the
information identified in paragraphs (c)(3)(i) through (iii) of this
section.
(i) The date, place, and time of each inspection;
(ii) Person performing the inspection;
(iii) Results of the inspection, including the date, time, and
duration of the corrective action period from the time the inspection
indicated a problem to the time of the indication that the device was
replaced or restored to operation.
(4) For each cyclone used to comply with the requirements in Sec.
63.11621(e), you must keep the records in paragraphs (c)(4)(i) through
(v) of this section.
(i) If you demonstrate that the cyclone is designed to reduce
emission of particulate matter by 95 percent or greater by
manufacturer's specifications in accordance with Sec.
63.11621(e)(1(i), you must keep the records specified in paragraphs
(c)(4)(i)(A) through (C) of this section.
(A) Information from the manufacturer regarding the design
efficiency of the cyclone,
(B) The inlet flow rate, inlet velocity, pressure drop, or fan
amperage range that represents proper operation of the cyclone,
(C) The operation and maintenance procedures to ensure proper
operation of the cyclone.
(ii) If you demonstrate that the cyclone is designed to reduce
emissions of particulate matter by 95 percent or greater by
certification by a professional engineer in accordance with paragraph
Sec. 63.11621(e)(1)(ii), you must keep the records specified in
paragraphs (c)(4)(ii)(A) through (C) of this section.
(A) Certification regarding the design efficiency of the cyclone,
along with supporting information,
(B) The inlet flow rate, inlet velocity, pressure drop, or fan
amperage range that represents proper operation of the cyclone,
(C) The standard maintenance and operating procedures that ensure
proper operation of the cyclone.
(iii) If you demonstrate that the cyclone is designed to reduce
emissions of particulate matter by 95 percent or greater by a
performance in accordance with paragraph Sec. 63.11621(e)(1)(iii), you
must keep the records specified in paragraphs (c)(4)(iii)(A) through
(C) of this section.
(A) Results of the testing conducted in accordance with Sec.
63.11623,
(B) The inlet flow rate, inlet velocity, pressure drop, or fan
amperage range that represents proper operation of the cyclone,
(C) The standard maintenance and operating procedures that ensure
proper operation of the cyclone.
(iv) Records of all quarterly inspections including the information
identified in paragraphs (c)(4)(iv)(A) through (C) of this section.
(A) The date, place, and time of each inspection;
(B) Person performing the inspection;
(C) Results of the inspection, including the date, time, and
duration of the corrective action period from the time the inspection
indicated a problem to the time of the indication that the cyclone was
restored to proper operation.
(v) Records of the daily inlet flow rate, inlet velocity, pressure
drop, or fan amperage measurements, along with the date, time, and
duration of the correction action period from the time the monitoring
indicated a problem to the time of the indication that the cyclone was
restored to proper operation.
(5) If you own or operate an affected source that is not subject to
the requirement in Sec. 63.11621(e) to install and operate a cyclone
to control emissions from pelleting operations because your average
daily feed production level is 50 tpd or less, feed production records
to enable the determination of the average daily feed production level.
(6) Your records must be in a form suitable and readily available
for expeditious review, according to Sec. 63.10(b)(1).
(7) As specified in Sec. 63.10(b)(1), you must keep each record
for 5 years following the date of each recorded action.
(8) You must keep each record onsite for at least 2 years after the
date of each recorded action according to Sec. 63.10(b)(1). You may
keep the records offsite for the remaining 3 years.
(d) If you no longer use materials that contain manganese or
chromium after January 5, 2010, you must submit a Notification in
accordance with Sec. 63.11619(c) which includes the information
specified in paragraphs (d)(1) and (2) of this section.
(1) Your company's name and address;
(2) A statement by a responsible official indicating that the
facility no longer uses materials that contain chromium or manganese.
This statement should also include an effective date for the
termination of use of materials that contain chromium or manganese, and
the responsible official's name, title, phone number, e-mail address
and signature.
Other Requirements and Information
Sec. 63.11625 What parts of the General Provisions apply to my
facility?
Table 1 of this subpart shows which parts of the General Provisions
in Sec. Sec. 63.1 through 63.16 apply to you.
[[Page 550]]
Sec. 63.11626 Who implements and enforces this subpart?
(a) This subpart can be implemented and enforced by EPA or a
delegated authority such as your State, local, or Tribal agency. If the
EPA Administrator has delegated authority to your State, local, or
Tribal agency, then that agency has the authority to implement and
enforce this subpart. You should contact your EPA Regional Office to
find out if implementation and enforcement of this subpart is delegated
to your State, local, or Tribal agency.
(b) In delegating implementation and enforcement authority of this
subpart to a State, local, or Tribal agency under 40 CFR part 63,
subpart E, the authorities contained in paragraph (c) of this section
are retained by the EPA Administrator and are not transferred to the
State, local, or Tribal agency.
(c) The authorities that cannot be delegated to State, local, or
Tribal agencies are specified in paragraphs (c)(1) through (5) of this
section.
(1) Approval of an alternative nonopacity emissions standard under
Sec. 63.6(g).
(2) Approval of an alternative opacity emissions standard under
Sec. 63.6(h)(9).
(3) Approval of a major change to test methods under Sec.
63.7(e)(2)(ii) and (f). A ``major change to test method'' is defined in
Sec. 63.90.
(4) Approval of a major change to monitoring under Sec. 63.8(f). A
``major change to monitoring'' is defined in Sec. 63.90.
(5) Approval of a major change to recordkeeping and reporting under
Sec. 63.10(f). A ``major change to recordkeeping/reporting'' is
defined in Sec. 63.90.
Sec. 63.11627 What definitions apply to this subpart?
Terms used in this subpart are defined in the CAA, in Sec. 63.2,
and in this section.
Animal feed includes: Dehydrated alfalfa meal; alfalfa prepared as
feed for animals; cubed alfalfa; prepared animal feed; chopped,
crushed, or ground barley feed; prepared bird feed; blended animal
feed; bone meal prepared as feed for animals and fowls; cattle feeds,
supplements, concentrates, and premixes; prepared chicken feeds; cattle
feed citrus pulp; complete livestock feed; custom milled animal feed;
dairy cattle feeds supplements, concentrates, and premixes; earthworm
food and bedding; animal feed concentrates; animal feed premixes;
animal feed supplements; prepared animal feeds; specialty animal (e.g.,
guinea pig, mice, mink) feeds; fish food for feeding fish; custom
ground grains for animal feed; cubed hay; kelp meal and pellets animal
feed; laboratory animal feed; livestock feeds, supplements,
concentrates and premixes; alfalfa meal; bone meal prepared as feed for
animals and fowls; livestock micro and macro premixes; mineral feed
supplements; animal mineral supplements; pet food; poultry feeds,
supplements, and concentrates; rabbit food; shell crushed and ground
animal feed; swine feed; swine feed supplements, concentrates, and
premixes; and prepared turkey feeds. Feed products produced for dogs
and cats are not considered animal feed for the purposes of this
subpart.
Average daily feed production level means the average amount of
animal feed products produced each day over an annual period. The
initial determination of the average daily feed production level is
based on the one-year period prior to the compliance date for existing
sources, or the design rate for new sources. The subsequent average
daily feed production levels are determined annually and are based on
the amount of animal feed products produced in a calendar year divided
by the number of days in which the production processes were in
operation.
Cyclone means a mechanically aided collector that uses inertia to
separate particulate matter from the gas stream as it spirals through
the cyclone.
Material containing chromium means a material that contains
chromium (Cr, atomic number 24) in amounts greater than or equal to 0.1
percent by weight.
Material containing manganese means a material that contains
manganese (Mn, atomic number 25) in amounts greater than or equal to
1.0 percent by weight.
Pelleting operations means all operations that make pelleted animal
feed, including but not limited to, steam conditioning, die-casting,
drying, cooling, and crumbling, and granulation.
Prepared feeds manufacturing facility means a facility that is
primarily engaged in manufacturing animal feed. A facility is primarily
engaged in manufacturing animal feed if the production of animal feed
comprises greater than 50 percent of the total production of the
facility on an annual basis. Facilities primarily engaged in raising or
feeding animals are not prepared feed manufacturing facilities.
Facilities engaged in the growing of agricultural crops that are used
in the manufacturing of feed are not considered prepared feeds
manufacturing facilities.
Sec. 63.11628-63.11638 [Reserved]
Tables to Subpart DDDDDDD of Part 63
Table 1 to Subpart DDDDDDD of Part 63--Applicability of General
Provisions to Prepared Feeds Manufacturing Area Sources
As required in Sec. 63.11619, you must meet each requirement in
the following table that applies to you.
------------------------------------------------------------------------
Applies to Subpart
Citation Subject DDDDDDD?
------------------------------------------------------------------------
63.1........................ Applicability....... Yes.
63.2........................ Definitions......... Yes.
63.3........................ Units and Yes.
Abbreviations.
63.4........................ Prohibited Yes.
Activities and
Circumvention.
63.5........................ Preconstruction No.
Review and
Notification
Requirements.
63.6(a),(b)(1)-(b)(5), Compliance with Yes.
(b)(7), (c), (f)(2)-(3), Standards and
(g), (i), and (j). Maintenance
Requirements.
63.6(e)(1), (e)(3), (f)(1), Startup, shutdown, No. Standards apply
and (h). and malfunction at all times,
requirements and including during
opacity/visible startup, shutdown,
emission standards. and malfunction
events.
63.7........................ Performance Testing Yes.
Requirements.
63.8........................ Monitoring Yes.
Requirements.
63.9(a), (b), (c), (d), (h), Notification Yes.
(i), and (j). Requirements.
63.9(e), (f), (g)........... .................... No.
63.10(a),(b)(1), (b)(2)(i)- Recordkeeping and Yes.
(iii), (b)(2)(vi)-(xiv), Reporting
(c), (d)(1), (e), and (f). Requirements.
63.10(b)(2)(iv)-(v), (b)(3), Recordkeeping and No.
and (d)(2)-(5). Reporting
Requirements.
63.11....................... Control Device No.
Requirements.
[[Page 551]]
63.12....................... State Authorities Yes.
and Delegations.
63.13....................... Addresses........... Yes.
63.14....................... Incorporations by Yes.
Reference.
63.15....................... Availability of Yes.
Information and
Confidentiality.
63.16....................... Performance Track Yes.
Provisions.
63.1(a)(5), (a)(7)-(9), Reserved............ No.
(b)(2), (c)(3)-(4), (d),
63.6(b)(6), (c)(3), (c)(4),
(d), (e)(2), (e)(3)(ii),
(h)(3), (h)(5)(iv),
63.8(a)(3), 63.9(b)(3),
(h)(4), 63.10(c)(2)-(4),
(c)(9).
------------------------------------------------------------------------
[FR Doc. E9-30498 Filed 1-4-10; 8:45 am]
BILLING CODE 6560-50-P