# National Emission Standards for Hazardous Air Pollutants for Area Sources: Clay Ceramics Manufacturing, Glass Manufacturing, and Secondary Nonferrous Metals Processing > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE7-24720 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 26, 2007 - **Citation:** 72 FR 73180 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2006-0424; EPA-HQ-OAR-2006-0360; EPA-HQ-OAR-2006-0940; FRL-8508-5] National Emission Standards for Hazardous Air Pollutants for Area Sources: Clay Ceramics Manufacturing, Glass Manufacturing, and Secondary Nonferrous Metals Processing AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is issuing national emission standards for the Clay Ceramics Manufacturing, Glass Manufacturing, and Secondary Nonferrous Metals Processing area source categories. Each of these three final emissions standards reflects the generally available control technology or management practices used by sources within the respective area source category. DATES: This final rule is effective on December 26, 2007. The incorporation by reference of certain publications listed in this rule are approved by the Director of the Federal Register as of December 26, 2007. ADDRESSES: EPA has established dockets for this action under Docket ID No. EPA-HQ-OAR-2006-0424 (for Clay Ceramics Manufacturing), Docket ID No. EPA-HQ-OAR-2006-0360 (for Glass Manufacturing), and Docket ID No. EPA-HQ-OAR-2006-0940 (for Secondary Nonferrous Metals Processing). All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., confidential business information 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 through 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: For questions about the final rule for Clay Ceramics Manufacturing, contact Mr. Bill Neuffer, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Metals and Minerals Group (D243-02), Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number: (919) 541-5435; fax number: (919) 541-3207; e-mail address: Neuffer.Bill@epa.gov. For questions about the final rule for Glass Manufacturing or Secondary Nonferrous Metals Processing, contact Ms. Susan Fairchild, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Metals and Minerals Group (D243-02), Research Triangle Park, NC 27711, telephone number: (919) 541-5167, fax number: (919) 541-3207, e-mail address: Fairchild.Susan@epa.gov. SUPPLEMENTARY INFORMATION: The supplementary information presented 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 Final Area Source Standards III. Summary of Final Rules and Changes Since Proposal A. Area Source NESHAP for Clay Ceramics Manufacturing B. Area Source NESHAP for Glass Manufacturing C. Area Source NESHAP for Secondary Nonferrous Metals Processing IV. Exemption of Certain Area Source Categories From Title V Permitting Requirements V. Summary of Comments and Responses A. Area Source NESHAP for Clay Ceramics Manufacturing B. Area Source NESHAP for Glass Manufacturing C. Area Source NESHAP for Secondary Nonferrous Metals Processing D. Area Source NESHAP—General VI. Impacts of the Final Area Source Standards A. Glass Manufacturing B. Clay Ceramics Manufacturing C. Secondary Nonferrous Metals Processing 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 these final standards include: Category (Industry) NAICS code 1 Examples of regulated entities Clay Ceramics Manufacturing 327122 327111 327112 Area source facilities that manufacture ceramic wall and floor tile, vitreous plumbing fixtures, sanitaryware, vitreous china tableware and kitchenware, and/or pottery. Glass Manufacturing 327211 327212 327213 Area source facilities that manufacture flat glass, glass containers, and other pressed and blown glass and glassware. Secondary Nonferrous Metals Processing 331492 331423 Area source brass and bronze ingot making, secondary magnesium processing, or secondary zinc processing plants that melt post-consumer nonferrous metal scrap to make products, including bars, ingots, and blocks, or metal powders. 2 1 North American Industry Classification System. 2 The Secondary Nonferrous Metals Processing area source category was originally established under SIC code 3341, a broader classification which included brass and bronze ingot makers. The corresponding NAICS code for brass and bronze ingot makers is 331423. 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 is regulated by this action, you should examine the applicability criteria in 40 CFR 63.11435 of subpart RRRRRR (national emissions standards for hazardous air pollutants (NESHAP) for Clay Ceramics Manufacturing Area Sources), 40 CFR 63.11448 of subpart SSSSSS (NESHAP for Glass Manufacturing Area Sources), and 40 CFR 63.11462 of subpart TTTTTT (NESHAP for Secondary Nonferrous Metals Processing). 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 the Technology Transfer Network (TTN). Following signature, a copy of the final action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: 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 these final rules is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by February 25, 2008. Under section 307(d)(7)(B) of the CAA, only an objection to these final rules that was raised with reasonable specificity during the period for public comment can be raised during judicial review. This section also provides a mechanism for us 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, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to the person 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), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004. Moreover, under section 307(d)(7)(B) of the CAA, only an objection to these final rules that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by these final rules may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. II. Background Information for Final Area Source Standards Section 112(k)(3)(B) of the CAA requires EPA to identify at least 30 hazardous air pollutants (HAP) which, as the result of emissions from area sources, a pose the greatest threat to public health in urban areas. Consistent with this provision, in 1999, in the Integrated Urban Air Toxics Strategy, EPA identified the 30 HAP that pose the greatest potential health threat in urban areas, and these HAP are referred to as the “urban HAP.” See 64 FR 38706, 38715-716, July 19, 1999. 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. EPA listed the source categories that account for 90 percent of the urban HAP emissions in the Integrated Urban Air Toxics Strategy. b Sierra Club sued EPA, alleging a failure to complete standards for the source categories listed pursuant to CAA section 112(c)(3) and 112(k)(3)(B) within the timeframe specified by the statute. See Sierra Club v. Johnson, No. 01-1537, (D.D.C.). On March 31, 2006, the court issued an order requiring EPA to promulgate standards under CAA section 112(d) for those area source categories listed pursuant to CAA section 112(c)(3) and 112(k)(3)(B). a An area source is a stationary source of HAP emissions that is not a major source. A major source is a stationary source that emits or has the potential to emit 10 tons per year (tpy) or more of any HAP or 25 tpy or more of any combination of HAP. b Since its publication in the Integrated Urban Air Toxics Strategy in 1999, the area source category list has undergone several amendments. Among other things, the court order, as amended on October 15, 2007, requires that EPA complete standards for 9 area source categories by December 15, 2007. On September 20, 2007 (72 FR 53838), we proposed NESHAP for the following three listed area source categories: (1) Clay Ceramics Manufacturing; (2) Glass Manufacturing; and (3) Secondary Nonferrous Metals Processing as part of our effort to meet the December 15, 2007 deadline. The standards for the other categories are being issued in separate actions. Under CAA section 112(d)(5), the Administrator may, in lieu of standards requiring maximum achievable control technology (MACT) under section 112(d)(2), elect to promulgate standards or requirements for area sources “which provide for the use of generally available control technologies or management practices by such sources to reduce emissions of hazardous air pollutants.” Under section 112(d)(5), the Administrator has the discretion to use generally available control technology or management practices (GACT) in lieu of MACT. As explained in the proposed NESHAP, we are setting standards for these three source categories pursuant to section 112(d)(5). See 72 FR 53840, September 20, 2007. III. Summary of Final Rules and Changes Since Proposal This section summarizes the final rules and identifies changes since proposal. For changes that were made as a result of public comments, we have provided detailed explanations of the changes and the rationale for the changes in the responses to comments in section V of this preamble. A. Area Source NESHAP for Clay Ceramics Manufacturing 1. Applicability and Compliance Dates The only substantive changes to the Clay Ceramics rule made since proposal are clarifications of applicability. There was an error in the wording of the applicable compliance dates, and we have revised the rule since proposal to clarify that an affected source is existing if construction or reconstruction was commenced on or before September 20, 2007, and an affected source is new if construction or reconstruction was commenced after September 20, 2007. These clarifications of existing and new source are consistent with the definitions specified in § 63.2. The final standards apply to any new or existing affected source at a clay ceramics manufacturing facility that is an area source and uses more than 45 megagrams per year (Mg/yr) (50 tons per year (tpy)) of clay. The affected source are all kilns that fire glazed ceramic ware and all atomized spray glaze operations located at such a facility. The owner or operator of an existing affected source must comply with the standards by December 26, 2007. The owner or operator of a new affected source is required to comply with the standards by December 26, 2007 or upon startup, whichever is later. 2. Standards The Clay Products Manufacturing area source category (which included clay ceramics manufacturing) was listed for regulation under section 112(c)(3) for its contribution of the following urban HAP: chromium, lead, manganese, and nickel. No changes have been made since proposal to the standards for clay ceramics manufacturing facilities. For each kiln firing glazed ceramic ware, the final standards require the facility owner or operator to maintain the kiln peak temperature below 1540°C (2800°F) and either use natural gas, or an equivalent clean-burning fuel, as the kiln fuel. The facility owner or operator has the option of using an electric-powered kiln. The requirements for atomized spray glaze operations at clay ceramic manufacturing area source facilities differ depending on whether a facility has annual wet glaze usage above or below 227 Mg/yr (250 tpy). Consequently, we are requiring that the facility owner or operator maintain annual wet glaze usage records in order to document whether they are above or below 227 Mg/yr (250 tpy) wet glaze usage. For each atomized spray glaze operation located at a clay ceramics manufacturing facility that uses more than 227 Mg/yr (250 tpy) of wet glaze(s), the final standards require the facility owner or operator to have an air pollution control device (APCD) on their glazing operations and operate and maintain the control device according to the equipment manufacturer's specifications. As a pollution prevention alternative to this requirement, we are also providing the option to use glazes containing less than 0.1 (weight) percent clay ceramics metal HAP for those facilities above the threshold, which is expected to provide emissions reductions equivalent or greater than those obtained using particulate matter (PM) controls. For each atomized spray glaze operation located at a clay ceramics manufacturing facility that uses 227 Mg/yr (250 tpy) or less of wet glaze(s), the final standards require the facility owner or operator to employ waste minimization practices in their glazing operations. In the preamble to the proposed rule, we acknowledged that some of these smaller facilities operate their atomized spray glaze operations with APCDs or use glazes containing less than 0.1 (weight) percent clay ceramics metal HAP. These alternative compliance options achieve reductions in metal HAP emissions that are at least equivalent to the metal HAP reductions from the waste minimization practices. Therefore, the final rule includes the use of glazes containing less than 0.1 (weight) percent clay ceramics metal HAP or an APCD as alternative compliance options for the waste minimization practices. 3. Compliance Requirements No changes have been made since proposal to the compliance requirements for clay ceramics manufacturing facilities. Initial compliance demonstration requirements. The owner or operator is required to include a compliance certification for the standards in their Notification of Compliance Status. For any wet spray glaze operations controlled with an APCD, an initial inspection of the control equipment must be conducted within 60 days of the compliance date and the results of the inspection included in the Notification of Compliance Status. Monitoring requirements. For each kiln firing glazed ceramic ware, the final standards require the owner or operator to conduct a check of the kiln peak firing temperature on a daily basis. If the peak firing temperature exceeds 1540°C (2800°F), the owner or operator must take corrective action according to the facility's standard operating procedures. For all sources that operate an APCD for their atomized spray glaze operations, we are requiring daily and weekly visual APCD inspections, daily EPA Method 22 visible emissions (VE) tests (40 CFR part 60, appendix A-7), or an EPA-approved alternative monitoring program to ensure that the APCD is kept in a satisfactory state of maintenance and repair and continues to operate effectively. The owner or operator is allowed to use existing operating permit documentation to meet the monitoring requirements, provided it includes the necessary monitoring records ( e.g. , the date, place, and time of the monitoring; the person conducting the monitoring; the monitoring technique or method; the operating conditions during monitoring; and the monitoring results). Notification and recordkeeping requirements. We are requiring that affected sources submit Initial Notifications and Notifications of Compliance Status according to the part 63 General Provisions. Facilities must submit the notifications by April 24, 2008. B. Area Source NESHAP for Glass Manufacturing 1. Summary of Changes Since Proposal Applicability We have revised the applicability criteria of the rule in § 63.11448 to clarify that periodic or pot furnaces are not part of the source category. The final rule applies only to glass manufacturing plants that operate continuous furnaces and use one or more of the glass manufacturing metal HAP as raw materials. In light of the changes made to the applicability criteria in § 63.11448, we added a new paragraph to § 63.11449(a)(1), which states that, to be an affected source, the furnace must be a continuous furnace. We added a definition of “continuous furnace” to § 63.11459 to further clarify how affected furnace is defined. We made an additional revision to § 63.11449(a) to clarify that, consistent with the proposed rule, to be an affected source, a furnace must produce least 45 Mg/yr (50 tpy) of glass that contains one or more of the glass manufacturing metal HAP as raw materials. In the proposed rule, it was unclear whether a furnace that is used to produce more than 45 Mg/yr (50 tpy) of glass, but less than 45 Mg/yr (50 tpy) of glass containing metal HAP as raw materials, would be an affected source. The revision clarifies that such a furnace would not be an affected furnace. Finally, we inserted a new paragraph § 63.11449(b) to clarify that furnaces that are used exclusively for research and development (R&D) are not part of the source category and are therefore not subject to regulation under this final rule. We also added a definition for “research and development process unit” to § 63.11459. In addition, we identified an error in the wording of the applicable compliance dates, and we have revised § 63.11449 since proposal to clarify that an affected source is existing if construction or reconstruction was commenced on or before September 20, 2007, and an affected source is new if construction or reconstruction was commenced after September 20, 2007. These clarifications of existing and new source are consistent with the definitions specified in § 63.2. Finally, we added a paragraph to the regulation to clarify that affected facilities must obtain a title V permit. Performance Test Requirements We revised § 63.11452(a) by adding paragraph (a)(3), which addresses the situation in which a facility operates affected furnaces that are identical. The new paragraph allows the owner or operator to demonstrate compliance for all such identical furnaces by testing only one of the furnaces. The additional paragraph specifies the criteria for determining if one furnace is identical to another and the conditions under which the furnace must be tested. Under § 63.11452(b), we deleted paragraph (b)(2), which was redundant and renumbered the remaining paragraphs accordingly. We revised § 63.11452(b)(8), which formerly was paragraph (b)(9), to state that sampling ports for performance testing are to be located at the outlet to the furnace control device or in the furnace stack. The proposed rule was unclear regarding the exact location for emission testing. We added an alternative test method to Methods 3, 3A, and 3B for gas molecular weight analysis. We reorganized the paragraphs that address testing for PM or metal HAP to clarify which procedures to follow to determine compliance with the PM emission limit and which procedures to follow to determine compliance with the metal HAP emission limit. We also revised the definition of the metal HAP mass emission rate in Equation 2, which is signified as the variable “ERM”. This variable specifies which metals are to be included in the analysis of the emission samples that are collected during testing. The revised text clarifies that ERM represents the combined mass emission rates for only those glass manufacturing metal HAP that are added as raw materials in the batch formulation. Monitoring and Continuous Compliance Requirements We revised the monitoring requirements by adding paragraph § 63.11454(a)(7), which specifies that the required monitoring must be performed any time the affected furnace is producing glass that is charged with one or more of the glass manufacturing metal HAP. Monitoring also must be performed during all transition phases from glass containing metal HAP to glass that does not contain metal HAP (i.e., until all HAP-containing glass has left the furnace melter). These transition phases encompass the period that begins when the plant stops charging the metal HAP as raw materials and ends when the furnace is producing a saleable product that does not contain the glass manufacturing metal HAP as raw materials. We revised § 63.11455(c) to clarify that the continuous compliance requirements apply whenever the affected furnace is producing glass that contains one or more of the glass manufacturing metal HAP, including any transition phases from metal HAP-containing glass to glass that does not contain the metal HAP. We also revised paragraph § 63.11455(c) to clarify the monitoring requirements for existing furnaces versus the monitoring requirements for new furnaces. We further revised § 63.11455 by adding paragraph (e) to clarify the continuous compliance requirements for affected furnaces that can meet the emission limits without the use of a control device. In such cases, the only requirements for demonstrating continuous compliance is to meet the applicable recordkeeping requirements specified in § 63.11457. Notifications We have revised § 63.11456 to simplify the section and clarify that the deadline for submitting the Initial Notification is 120 days after the furnace becomes subject to the rule, regardless of whether the furnace is existing or new. Definitions We have revised several of the definitions specified in § 63.11459 and added a number of new definitions to the section. We revised the definition of cullet to clarify that cullet is not considered a raw material when determining if a furnace is an affected source. We revised the definition of a glass melting furnace, which is defined in the final rule as the process unit in which raw materials are charged and melted at high temperature to produce molten glass. The previous definition included the raw material charging system and other appendages to the furnace. However, the revised definition is consistent with the procedures for testing furnaces to demonstrate compliance. We revised the definition of particulate matter by replacing the modifier “total” with “filterable.” This revision makes the definition consistent with the test methods specified for demonstrating compliance with the PM emission limit. Finally, we revised the definition of raw material to clarify that it excludes cullet and material that is recycled from the furnace control device. To clarify the applicability requirements in §§ 63.11448 and 63.11449, we added the definition of continuous furnace. To clarify the performance testing requirements, we have added a definition for furnace stack. We also added a definition for identical furnaces, which pertains to the performance testing requirements for a facility that operates more than one identical furnace. Finally, we added a definition for research and development process unit. This definition was needed to clarify in § 63.11449(b) that furnaces used strictly for R&D are not subject to regulation under this final rule. Glass manufacturing furnaces used only for R&D were not part of the 1990 inventory and are not part of the listed source category. Implementation and Enforcement Authority We deleted paragraph § 63.11460(c), which was redundant. We also added a new paragraph (b)(2) to clarify that EPA retains the authority for approving alternative test methods. 2. Summary of Final Rule Applicability and Compliance Dates This NESHAP applies to any glass manufacturing plant that is an area source of HAP emissions and operates one or more continuous furnaces which produce at least 45 Mg/yr (50 tpy) of glass per furnace by melting a mixture of raw materials that includes compounds of one or more of the glass manufacturing metal HAP. The rule does not apply to periodic furnaces or furnaces that are used strictly for research and development. The compliance date for existing sources is December 28, 2009. However, owners or operators of affected sources may request an extension of one additional year to comply with the rule, as allowed under section 112(i)(3)(B) of the CAA and under § 63.6(i)(4)(A), if the additional time is needed to install emission controls. The compliance date for new sources is December 26, 2007 or the startup date for the source, whichever is later. The compliance date for facilities with no affected sources as of December 26, 2007 and which later change processes or increase production and trigger applicability of the rule, is 2 years following the date on which the facility made the process changes or increased production and thereby became subject to the NESHAP. Standards The Glass Manufacturing area source category was listed for regulation under section 112(c)(3) for its contribution of the following urban HAP: arsenic, cadmium, chromium, lead, manganese, and nickel. The glass manufacturing final rule requires each new or existing affected furnace to comply with a PM emission limit of 0.1 gram per kilogram (g/kg) (0.2 pound per ton (lb/ton)) of glass produced or an equivalent metal HAP emission limit of 0.01 g/kg (0.02 lb/ton) of glass produced. Performance Testing This final rule requires an initial one-time performance test on each affected furnace unless the furnace had been tested during the previous 5 years, and the previous test demonstrated compliance with the emission limits in this rule using the same test methods and procedures specified in this rule. This final rule requires testing using EPA Methods 5 or 17 (for PM emissions) or EPA Method 29 (for metal HAP emissions) in 40 CFR part 60, appendix A. This final rule also allows the owner or operator of affected identical furnaces to test only one of the furnaces if certain conditions are met. Monitoring The owner or operator of an existing affected glass furnace that is controlled with an electrostatic precipitator (ESP) must monitor the secondary voltage and secondary electrical current to each field of the ESP continuously and record the results at least once every 8 hours. The owner or operator of a new affected furnace equipped with an ESP must install and operate one or more continuous parameter monitoring systems to continuously measure and record the secondary voltage and secondary electrical current to each field of the ESP. Either of these parameters dropping below established levels provides an indication that the electrical power to the ESP field in question has decreased, and collection efficiency may have decreased accordingly. Owners or operators of an existing affected glass furnace that is controlled with a fabric filter must monitor the fabric filter inlet temperature continuously and record the results at least once every 8 hours. The owner or operator of a new affected furnace that is equipped with a fabric filter must install and operate a bag leak detector. As an alternative to monitoring ESP secondary voltage and electrical current or fabric filter inlet temperature, owners or operators of affected furnaces equipped with either of these control devices have the option of requesting alternative monitoring, as allowed under § 63.8(f). The alternative monitoring request must include a description of the monitoring device or monitoring method to be used; instrument location; inspection procedures; quality assurance and quality control measures; the parameters to be monitored; and the frequency with which the operating parameter values would be measured and recorded. The owner or operator of an affected furnace that is equipped with a control device other than an ESP or fabric filter, or that uses other methods to reduce emissions, must submit a request for alternative monitoring, as described in § 63.8(f). Control Device Inspections The owner or operator of an affected furnace must conduct initial and periodic inspections of the furnace control device. For fabric filters, the final rule requires annual inspections of the ductwork, housing, and fabric filter interior. For electrostatic precipitators, this final rule requires annual inspections of the ductwork, hopper, and housing, and inspections of the ESP interior every 2 years. Notification and Recordkeeping Owners and operators of all affected glass manufacturing plants that operate at least one continuous furnace that produces at least 45 Mg/yr (50 tpy) of glass using any of the glass manufacturing metal HAP as raw materials must submit an Initial Notification, as required under § 63.9(b). Any facility with an affected source also must submit a Notification of Compliance Status, as specified in § 63.9(h). Owners and operators of glass manufacturing facilities are required to keep records of all notifications, as well as supporting documentation for the notifications. In addition, they must keep records of performance tests; parameter monitoring data; monitoring system audits and evaluations; operation and maintenance of control devices and monitoring systems; control device inspections; and glass manufacturing batch formulation and production. C. Area Source NESHAP for Secondary Nonferrous Metals Processing 1. Applicability and Compliance Dates There was an error in the wording of the applicable compliance dates, and we have revised the rule since proposal to clarify that an affected source is existing if construction or reconstruction was commenced on or before September 20, 2007, and an affected source is new if construction or reconstruction was commenced after September 20, 2007. These clarifications of existing and new sources are consistent with the definitions specified in § 63.2. The final standards apply to any new or existing affected source at an area source secondary nonferrous metals processing facility. The affected source includes all crushing or screening operations at a secondary zinc processing facility and all furnace melting operations located at a secondary nonferrous metals processing facility. The owner or operator of an existing affected source must comply with the standards by December 26, 2007. The owner or operator of a new affected source is required to comply with the standards by December 26, 2007, or upon initial startup, whichever is later. 2. Standards The Secondary Nonferrous Metals Processing area source category was listed for regulation under section 112(c)(3) for its contribution of the following urban HAP: arsenic, chromium, lead, manganese, and nickel. We proposed to require the use of a fabric filter or baghouse that achieves a PM control efficiency of 99 percent for existing sources and 99.5 percent for new sources. Since our proposal, we learned that a facility had insufficient inlet ductwork to conduct a performance test for determining collection efficiency. The facility requested that we add an alternate emission limit expressed as an outlet concentration limit to the final standards. As we noted in the proposed rule, the 10 existing facilities reported using baghouses on crushing or screening operations at secondary zinc facilities and on furnace melting operations at all facilities and that such baghouses performed at a PM collection efficiency of at least 99 percent or achieved an outlet PM concentration not exceeding 0.050 grams per dry standard cubic meter (g/dscm) (0.022 grains per dry standard cubic foot (gr/dscf)) where collection efficiency was not reported. Based on available outlet concentration data from ICR responses in the proposal docket and consideration of baghouse performance at similar sources, we have determined that limiting outlet PM concentrations to 0.034 g/dscm (0.015 gr/dscf) and 0.023 g/dscm (0.010 gr/dscf) would control PM and metal HAP emissions at levels that are equivalent to the levels of control from using a baghouse with a control efficiency of 99 and 99.5 percent, respectively. Because both the proposed control efficiency standards and the equivalent outlet concentration limits reflect the GACT levels of control, we have revised the proposed standards to include the outlet concentration limits as alternatives to the control efficiency standards. The final standards require the owner or operator of an existing affected source to route the emissions from the affected source through a fabric filter or baghouse that achieves a control efficiency of at least 99.0 percent or an outlet PM concentration limit of 0.034 g/dscm (0.015 gr/dscf). The owner or operator of a new affected source must route the emissions from the affected source through a fabric filter or baghouse that achieves a control efficiency of at least 99.5 percent or an outlet PM concentration limit of 0.023 g/dscm (0.010 gr/dscf). 3. Compliance Requirements Performance test requirements. The owner or operator of any existing or new affected source must conduct a one-time initial performance test on the affected source. However, a new performance test is not required for existing affected sources that were tested within the past 5 years of the compliance date if the test was conducted using the same procedures specified in the standards and either no process changes had been made since the test, or the owner or operator demonstrates that the results of the performance test, with or without adjustments, reliably demonstrated compliance despite process changes. The tests for new and existing affected sources are to be conducted using EPA Method 5 in 40 CFR part 60, appendix A-3 or EPA Method 17 in 40 CFR part 60, appendix A-6. Initial control device inspection. The owner or operator of each existing and new affected source is required to conduct an initial inspection of each baghouse. The owner or operator must visually inspect the system ductwork and baghouse unit for leaks and inspect the inside of each baghouse for structural integrity and fabric filter condition. The owner or operator must record the results of the inspection and any maintenance action taken. For each installed baghouse which is in operation during the 60 days after the compliance date, the owner or operator must conduct the initial inspection no later than 60 days after the applicable compliance date. For an installed baghouse which is not in operation during the 60 days after the compliance date, the owner or operator is required to conduct an initial inspection prior to startup of the baghouse. An initial inspection of the internal components of a baghouse is not required if an inspection has been performed within the past 12 months. Monitoring requirements. For existing affected sources, the owner or operator must conduct either daily visible emission (VE) tests using EPA Method 22 (40 CFR part 60, appendix A-7) or weekly visual inspections of the baghouse system ductwork for leaks, as well as annual inspections of the interior of the baghouse to determine its structural integrity and to determine the condition of the fabric filter. For new affected sources, the owner or operator must operate and maintain a bag leak detection system for each baghouse used to comply with the standards. The final standards require the owner or operator to keep records of the date, place, and time of the monitoring; the person conducting the monitoring; the monitoring technique or method; the operating conditions during monitoring; and the monitoring results. Notification and recordkeeping requirements. The owner or operator of an affected source must submit an Initial Notification and Notification of Compliance Status. The Notification of Compliance status must include, among other information, the results from the one-time initial performance test and certifications of compliance for the standards. We proposed to require facilities to submit both notifications no later than 120 days after the applicable compliance date regardless of whether they were required to conduct a performance test. Since our proposal, we discovered that, although we had intended to allow sources 180 days from the compliance date to conduct the initial performance test and an additional 60 days to submit the results of the performance test, the proposed rule implicitly shortened that time frame by 120 days because it required that the Notification of Compliance status include the performance test results and be submitted within 120 days of the compliance date. Therefore, to afford sources the full time to conduct the performance test and submit the results of the testing, we have revised our proposal in this final rule to require that sources required to do performance testing submit the Notification of Compliance Status before the close of business of the 60th day following the completion of a performance test. IV. Exemption of Certain Area Source Categories From Title V Permitting Requirements We did not receive any comments on our proposal to exempt facilities in the Clay Ceramics and Secondary Nonferrous Metals Processing area source categories from title V permitting requirements. Therefore, this final rule does not require facilities in these source categories to obtain an operating permit under 40 CFR part 70 or part 71. The proposed Glass Manufacturing Area Source NESHAP would have required affected facilities to obtain title V permits. Although we received public comments requesting that we exempt the Glass Manufacturing Area Source Category from title V, we are finalizing the approach in the proposed rule and are not exempting the source category from title V. The reasons for this decision are summarized in this notice in the Summary of Comments and Responses section for the Area Source NESHAP for Glass Manufacturing. V. Summary of Comments and Responses A. Area Source NESHAP for Clay Ceramics Manufacturing Comment: One commenter noted that the intent of the CAA, as it relates to the Area Source Program, was to bring about reductions in HAP emissions from area sources. The commenter expressed disappointment that some of the rules proposed under the Area Source Program (e.g., Clay Ceramics Manufacturing) will not result in emissions reductions and recommended that future area source rules incorporate provisions that will provide additional public health protection from the effects of HAP emissions from area sources. Response: As previously explained, we have determined that GACT for the Clay Ceramics Manufacturing area source category is (1) maintaining the peak firing temperatures of kilns firing glaze ceramic ware below 1540 °C (2800 °F), (2) implementing the equipment requirement (wet control systems for PM emissions) for glaze spray booths at facilities with wet glaze usage above 227 Mg/yr (250 tpy), and (3) implementing the waste minimization practices for glaze spray booths at facilities with wet glaze usage at or below 227 Mg/yr (250 tpy). The use of PM controls and waste minimization practices has been shown to be very effective in controlling PM and metal HAP emissions from this area source category. Keeping kiln peak firing temperatures below the volatilization temperatures of the clay ceramics metal HAP in the spray glazes would also be effective in preventing volatilization of the clay ceramics metal HAP. The commenter does not challenge any aspect of EPA's proposed GACT determination for this area source category. Instead, the commenter makes a blanket assertion that EPA is not acting consistently with the purposes of the area source provisions in the CAA (i.e., sections 112(c)(3) and 112(k)(3)(B)), because it is not requiring emission reductions beyond the level that is currently being achieved from this well-controlled source category. In support of this assertion, the commenter compares the requirements in the proposed rule to the area source category's current emission and control status. Such a comparison is flawed and irrelevant. Congress promulgated the relevant CAA area source provisions in 1990 in light of the level of area source HAP emissions at that time. Congress directed EPA to identify not less than 30 HAP which, as a result of emissions from area sources, present the greatest threat to public health in the largest number of urban areas, and to list sufficient area source categories to ensure that sources representing 90 percent of the 30 listed HAP are subject to regulation. As explained in the Integrated Urban Air Toxics Strategy, EPA based its listing decisions on the baseline National Toxics Inventory (NTI) that the Agency compiled for purposes of implementing its air toxics program after the 1990 CAA Amendments (64 FR 38706, 38711, n.10). The baseline NTI reflected HAP emissions from clay manufacturing area sources in 1990. Thus, contrary to the commenter's suggestion, the relevant emission level for comparison is the emission level reflected in our baseline NTI, not the current emission level. Furthermore, in promulgating the area source provisions in the CAA, Congress did not require EPA to issue area source standards that must achieve a specific level of emission reduction. Rather, Congress authorized EPA to issue standards under section 112(d)(5) for area sources that reflect GACT for the source category. To qualify as being generally available, a GACT standard would most likely be an existing control technology or management practice. Thus, it is not surprising that the GACT standard being finalized today codifies the existing effective HAP control approach being used by sources in the category. For the reasons stated above, this final rule is consistent with sections 112(c)(3), 112(k)(3)(B), and 112(d)(5). B. Area Source NESHAP for Glass Manufacturing 1. Definition of Source Category Comment: Three commenters from companies that make stained glass commented that they own small facilities that operate, with one exception, small periodic furnaces (pot furnaces) that are charged with small amounts of the glass manufacturing metal HAP. They claim that their furnaces would be subject to the emission standards because they use the metal HAP and exceed the 45 Mg/yr (50 tpy) threshold. However, these companies allege that the costs of installing controls on their furnaces could put them out of business. One commenter stated that some artisans and schools also would be subject to the proposed rule based on the applicability criteria. Two of the commenters suggested that the rule exempt small businesses due to the burden that would result from complying with the proposed requirements. One commenter stated that the rule was based on an analysis of the glass manufacturing industry using data on large continuous furnaces that did not account differences in the manufacturing process and emissions associated with stained glass manufacturing. The commenter stated that the rule should exempt periodic furnaces. Response: After reviewing the emissions inventory in support of the listing decisions made pursuant to sections 112(c)(3) and 112(k) and available information, we have concluded that the glass manufacturing area source category was listed based on emissions from relatively large manufacturing plants that operated continuous glass furnaces. Periodic furnaces were not included in the inventory. The 45 Mg/yr (50 tpy) threshold that was proposed was meant to define the source category to include only these large manufacturers, but did not properly reflect this criterion. Therefore, we have revised § 63.11448 to specify that periodic or pot furnaces are not subject to the final Glass Manufacturing Area Source NESHAP. We believe this revision will address most of the concerns of the stained glass manufacturing sector as well as other sectors and organizations, such as artisans, schools, studios, and other small facilities that produce glass using periodic furnaces. Comment: One commenter stated that flat glass should be excluded from the area source category for several reasons. According to the commenter, flat glass was not identified in the Integrated Urban Air Toxics Strategy as a source category for regulation. Therefore, the commenter suggests that EPA cannot regulate the flat glass industry under an area source standard. The commenter added that the administrative record refers only to pressed and blown glass, which has different Standard Industrial Classification (SIC) and North American Industrial Classification System (NAICS) codes than does flat glass manufacturing. The commenter also stated that the administrative record lacks evidence that flat glass manufacturers emit significant quantities of Urban HAP. The commenter pointed out that the Arsenic NESHAP does not apply to flat glass manufacturing for this same reason. Finally, the commenter stated that the proposed rule would not require any flat glass manufacturing plants to install or operate emission control devices. Response: As explained in the Federal Register Notice announcing the Integrated Urban Air Toxics Strategy (64 FR 38707, July 19, 1999), the process of listing area source categories for regulation would be an iterative ongoing approach that would be refined and modified as we obtained better data on emissions. Furthermore, as indicated in section 112(e)(4) of the CAA, the listing of a particular source category is not considered final agency action until we issue emission standards for that source category. Therefore, the source category listing is not necessarily limited only to those sources initially identified by the listing. We considered this authority in light of the legislative history regarding glass manufacturing. The flat glass industry sector has always been part of the glass manufacturing industry, as evidenced by environmental statutes including the glass New Source Performance Standard (NSPS), the Arsenic NESHAP, as well as numerous State rules nationwide. Our study of the glass manufacturing industry includes container glass, pressed and blown glass, and flat glass sectors; these are generally similar with respect to the types of raw materials used and furnaces used to melt those raw materials. Regarding the comment that the administrative record lacks evidence that flat glass manufacturers emit significant quantities of Urban HAP, we point out that the record does show that some flat glass plants emit some of the glass manufacturing metal HAP. Because several flat glass manufacturers do use the glass manufacturing metal HAP in their formulations, and emit metal HAP as a result, because the raw materials and the melting process are the focal points of the proposed Glass Manufacturing Area Source NESHAP, and because of evidence in the legislative history, we determined that it was appropriate to include flat glass within the area source category. Based on our knowledge of the flat glass industry, the commenter is correct that no existing flat glass plants would have to install additional controls to comply with this final rule. However, there are existing flat glass plants that use the metal HAP as raw materials and will be subject to the other requirements of this final rule. Our data indicate these plants currently meet the emission limits and keep detailed records. Therefore, their additional burden as a result of this final rule is only related to notifications, which we believe are justified. The notification requirements apply only if the plant uses one or more of the glass manufacturing metal HAP as raw materials; if the plant does not use any of the glass manufacturing metal HAP, this final rule does not apply. In the event that other flat glass manufacturers decide to change their current glass formulations to include metal HAPs, it is appropriate that those flat glass plants be subject to this final rule. Even in such an instance, an existing facility that changed their formulation such that it became subject to the requirements of the rule would have 2 years following the formulation change to comply with this final rule. For these reasons, we have concluded that inclusion of flat glass manufacturers in the Glass Manufacturing Area Source Category is warranted. Comment: One commenter requested clarification that the proposed rule applies only to area sources and not major sources of HAP emissions. Response: As specified in § 63.11448, the Glass Manufacturing Area Source NESHAP applies only to area sources of the glass manufacturing metal HAP. 2. Definition of Affected Source Comment: Two commenters stated that, although the 45 Mg/yr (50 tpy) furnace threshold was meant to exclude small manufacturers, the proposed threshold is less than the amounts that some stained glass manufacturers, glass studios, and schools produce. The commenters believe that a higher threshold level is warranted to ensure that the small facilities that were meant to be excluded would not be subject to this final rule. Response: Although we considered revising the definition of affected source in response to the commenters' concerns, we have no data to indicate a specific higher threshold and why that threshold would be more appropriate than the 45 Mg/yr (50 tpy) level specified in the proposed rule. However, based on our review of the comments received on the proposed rule and the available data, we have decided to clarify that this final rule only applies to continuous furnaces and not to periodic furnaces. We believe this clarification ameliorates the commenters' concerns regarding the production threshold. In this final rule, we have revised § 63.11448 to apply only to facilities that use continuous furnaces to produce glass. Comment: Two commenters expressed concern with the definition of affected source (i.e., furnace). Both commenters stated that the definition in the proposed rule, which was adopted from 40 CFR 60, subpart CC, Standards of Performance for Glass Manufacturing Plants (Glass NSPS), defines furnace to include the “raw material charging system” and “appendages for conditioning and transferring molten glass to forming machines.” One commenter pointed out that, in the proposed rule, compliance is demonstrated by testing the furnace stack. However, emissions from the “charging system” or “appendages” are not generally ducted to the furnace stack. The commenter stated that furnace was defined as it was in the NSPS to clarify what constitutes a modification; the definition was not meant to identify emission points or where stack testing should be performed. The other commenter explained that one of the company's plants adds colored frit to the molten glass in the forehearth, which is one of the “appendages” referenced in the definition of furnace. The commenter pointed out that emissions from the forehearth are not ducted to the furnace stack. Since the GACT analysis for glass furnaces was based on emissions from furnace stacks, the proposed emission limits should not apply to emissions from forehearths. Response: In developing the proposed rule, we determined GACT for this source category based on technology used to reduce emissions from glass melting furnace stacks. Glass furnace stacks generally exhaust emissions from the furnace melter, which is the part of the furnace where raw materials are charged and melted. Although furnace stacks may also exhaust emissions from other parts of, or appendages to, the furnace, it was our intent to regulate emissions from the furnace melter. This is consistent with our understanding of the emissions profile of glass manufacturing raw materials; that is, metal HAP are emitted from glass furnaces upon the initial melting step. Later remelting of glass, such as cullet and frit, does not re-emit the metal HAP once the glass has been formed or vitrified. To clarify this requirement, we have revised § 63.11459 of this final rule to redefine the glass melting furnace as the “* * * process unit in which raw materials are charged and melted at high temperature to produce molten glass.” In addition, we have added to § 63.11459 a definition of furnace stack as the conduit or conveyance through which emissions from the furnace melter are released to the atmosphere. We also have revised § 63.11452 in this final rule to clarify that compliance with the emission limits is determined by testing the furnace stack. Comment: One commenter requested that the rule exempt furnaces that are used strictly for R&D. Response: We agree with the commenter that this final rule should clarify that sources that are used exclusively for R&D purposes are not regulated by this rule because these sources were not part of the inventory. Therefore, we have added a provision to § 63.11449 that clarifies that such furnaces are not covered by this final rule. We also have added to § 63.11459 of this final rule a definition for research and development process units. Comment: Three commenters stated that the rule should specify a de minimis level for metal HAP usage, below which plants would have no requirements. Two of the commenters suggested setting annual de minimis levels for each regulated HAP, below which the rule limit would not apply. Response: With respect to the use of the glass manufacturing metal HAP in relatively small amounts, the proposed 0.01 g/kg (0.02 lb/ton) metal HAP emission limit should address the commenters' concerns. If metal HAP are added to the batch in very small amounts, compliance with the HAP emission limit could be achieved without having to install a control device on the affected furnace. It is appropriate under the area source program that glass manufacturers using large amounts of metal HAP in their furnaces install controls to reduce those emissions. Therefore, we have concluded that if would not be appropriate to develop de minimis levels for metal HAP usage. Comment: One commenter stated that the rule does not define reconstruction as it pertains to reconstructed sources. The commenter suggested that the NSPS definition of reconstruction be adopted or incorporated by reference. Response: Although the proposed rule did not define reconstruction, § 63.11472 states that the definitions specified in the CAA and § 63.2 of the General Provisions to part 63 also apply to the proposed rule. This is the definition of reconstruction that applies to all part 63 standards. Therefore, we believe it is the appropriate definition for the Glass Manufacturing Area Source NESHAP. Comment: One commenter addressed the applicability of the proposed rule for furnaces that are used both for making glass that does not contain metal HAP and glass that contains metal HAP. The commenter asked if the 45 Mg/yr (50 tpy) threshold that defines an affected source is based only on the amount of HAP-containing glass produced or on the total amount of glass produced, even if the amount of HAP-containing glass was less than 45 Mg/yr (50 tpy). Response: It was our intent for the rule to apply to furnaces that produce at least 45 Mg/yr (50 tpy) of glass that contains one or more of the glass manufacturing metal HAP as raw materials. Therefore, a furnace that produces more than 45 Mg/yr (50 tpy) of glass would not be subject to this final rule if the amount of HAP-containing glass produced in the furnace were less than 45 Mg/yr (50 tpy). We have revised the definition of affected source in § 63.11449 to clarify that a source is an affected source only if it produces at least 45 Mg/yr (50 tpy) of glass that contains one or more of the metal HAP as raw materials. 3. Regulated Pollutants Comment: One commenter stated that the rule should not regulate arsenic because arsenic emissions are already regulated under the Glass Arsenic NESHAP. The commenter believes that the requirements for both rules will create overlapping and sometimes conflicting requirements. The commenter added that the reporting and recordkeeping burden for a second rule to regulate the same pollutant would be excessive. Response: The listing of glass manufacturing as an area source category was based in part on arsenic, which was identified in the section 112(k) inventory as one of the HAP emitted by glass manufacturing facilities. Therefore, we are required under sections 112(c)(3) and (d) of the CAA to regulate emissions of arsenic from glass manufacturing plants that are area sources of HAP based on GACT for the glass manufacturing industry. With respect to the burden associated with complying with both rules, we have tried to minimize the burden associated with the Glass Manufacturing Area Source NESHAP. This final rule will require affected plants to submit an Initial Notification and a Notification of Compliance Status, but will require no additional reporting. Furthermore, the recordkeeping requirements are similar for both the proposed rule and the Glass Arsenic NESHAP. Therefore, we disagree that the reporting and recordkeeping burden associated with complying with both rules will be excessive. With respect to monitoring, the Glass Area Source NESHAP allows affected sources to request approval of alternative monitoring, which likely would result in no changes to the monitoring that is currently performed to comply with the Glass Arsenic NESHAP. In terms of testing, the Glass Area Source NESHAP requires only a one-time test and includes a provision for using data from a previous emission test conducted within the last 5 years, if the test demonstrates compliance with the emission limits specified in the Glass Area Source NESHAP. 4. Title V Permitting Comment: Two commenters addressed EPA's decision to not exempt the Glass Manufacturing Area Source Category from title V permitting. Both commenters disagreed with the statement in the preamble to the proposed rule that all of the facilities that would be affected by the proposed rule are already subject to title V. One commenter stated that at least one of the company's facilities, which is not subject to title V, would be subject to the proposed rule. The commenter also stated that EPA's reasons for exempting the Clay Ceramics Manufacturing and Secondary Nonferrous Metals Processing Source Categories from title V permitting also apply to the Glass Manufacturing Source Category. The other commenter stated that the company operates two plants that are not currently subject to title V, each with a furnace that would be subject to the proposed rule. Although both furnaces are scheduled for shutdown, the company may reconsider this decision to shut them down if market conditions change. The same commenter stated that it is possible that there are other non-title V facilities that would be subject to the proposed rule, and that it appears it was EPA's intent for the proposed rule to not cause additional facilities to become subject to title V. Both commenters requested that the proposed rule provide title V exemptions for facilities that are not currently subject to title V permitting. Response: Section 502(a) of the CAA requires sources subject to regulation under section 112 of the CAA to obtain a permit to operate. However, Section 502(a) authorizes the Administrator, in his discretion, to “promulgate regulations to exempt one or more source categories (in whole or in part) from the requirement of (title V) if the Administrator finds that compliance with such requirements is impracticable, infeasible, or unnecessarily burdensome on such categories * * *.” EPA promulgated a rule interpreting section 502(a) and therein stated that EPA may only exempt a category from title V permitting if we find compliance to be “impracticable, infeasible, or unnecessarily burdensome” and we determine that exempting the category would not adversely affect public health, welfare, or the environment (see 70 FR 75,320, 75,323 (Dec. 19, 2005)). Nowhere in the rule did we establish a presumption in favor of exempting sources from title V permitting, and the statute leaves such determinations to the discretion of the Administrator. The commenters have identified three glass manufacturer area source plants that are currently not subject to the operating permit requirements of CAA title V, which renders incorrect our assertion at proposal that all glass manufacturers that would be subject to this final rule were already subject to title V requirements. Notwithstanding this error, comments and other information in the record for this rulemaking do not demonstrate that compliance with title V permitting would be impracticable, infeasible, or unnecessarily burdensome for the sources in this category. Other than these two comments, we did not receive information during the comment period indicating that there are other sources that will be subject to this rule that do not have title V permits already. In this case, more than 80 percent of the sources in the category have title V permits, and of the 3 facilities that do not have such permits, the affected furnaces at two of those facilities are currently scheduled for shutdown. Based on these facts, it is not readily apparent why it would be impracticable, infeasible, or unnecessarily burdensome for sources in this category to comply with the title V requirements. The two commenters that opposed our decision to not exempt the Glass Manufacturing Area Source Category from title V permitting did not identify their plants in question, did not explain how those plants differed in any way from other plants in this category that currently hold a title V permit, and did not explain how those differences would be relevant to the criteria for an exemption from title V. For example, one commenter supported its request for exempting its two plants from title V by stating a desire for flexibility in the event that one or more of the affected furnaces at the plants actually do not shut down. (As noted above, the commenter's current plan is to shut down the affected furnaces at these two facilities.) Source flexibility, while important, is not a factor EPA considers in determining whether to exempt a source from title V permitting requirements. The second commenter seeking a title V exemption for the glass manufacturing source category asserted that the reasons for exempting the other two source categories addressed in today's notice (Clay Ceramics Manufacturing and Secondary Non-ferrous Metals Processing area sources) applied equally to this category. The commenter, however, offered no information substantiating this assertion, and we cannot dismiss obvious differences between the glass manufacturing source category and the source categories which received a title V exemption. These differences include whether most of the category already has a title V permit and whether most of the category is composed of small businesses that would incur economic hardship were title V requirements imposed on them. The decision to exempt a source category is made on a case-by-case basis according to the facts of the industry. According to information we have collected on the glass manufacturing area source category, we conclude, in the absence of contrary information, that a title V exemption for this area source category is not warranted. Therefore, in light of the lack of information supporting an exemption of this source category from the title V requirements, we have not exempted the Glass Manufacturing Area Source Category from title V under today's rule. 5. Emission Limits Comment: One commenter stated that, although emissions from glass furnaces vary by the type of glass produced, the proposed emission limits do not account for the relationship between PM emissions and glass type. The commenter noted that the Glass NSPS accounts for these differences by specifying different PM emission limits depending on the glass formulation and fuel type. The commenter explained that the differences in PM emissions result from differences in the volatilization rate of the constituents of the glass recipe. The commenter suggested that the proposed rule adopt the NSPS emission limits to account for these differences and to avoid confusion. Response: While the Glass NSPS does regulate glass manufacturing furnaces for emissions of PM, the purpose of the proposed area source NESHAP is to address metal HAP emissions from continuous glass manufacturing furnaces. Section 112(d)(5) of the CAA requires us to develop emission limits to reduce HAP emissions from area sources based on GACT. For the Glass Manufacturing Area Source Category, we determined GACT to be the level of control achieved by an ESP. In developing the PM emission limit for the proposed rule, our approach was to consider all of the available data on ESP-controlled PM emissions from glass manufacturing furnaces. Those data do not indicate that the variations in PM emissions due to glass formulation that are reflected in the emission limits of the Glass NSPS are appropriate for this rule. For example, the NSPS emission limits (in the format of PM emission factors) are higher for pressed and blown glass formulations than for container or flat glass formulations. However, the data used in developing the proposed PM emission limit do not indicate that controlled PM emissions from pressed and blown glass furnaces are higher than PM emissions from container or flat glass furnaces. In fact, the data with the lowest emission factors are from controlled pressed and blown glass furnaces. Although there are several possible explanations for this discrepancy, we point out that the NSPS emission limits are based on data from the 1970s and may not be representative of current glass manufacturing furnace PM emissions and control device performance. In conclusion, we developed the proposed PM emission limit based on the best available data, and because those data do not indicate variations in controlled PM levels due to glass formulation, we are not adopting the NSPS emission limits or differentiating by glass formulation, as suggested by the commenter. Comment: One commenter pointed out that many existing glass furnaces comply with the Glass NSPS using modified processes without having to install emission controls. The commenter urged EPA to consider incorporating in this final rule the alternate emission limits for modified processes established in the NSPS. The commenter explained that the cost to retrofit a glass furnace with a control device is prohibitive, particularly in view of the amount of metal HAP reduced by such controls. Response: The Glass NSPS defines modified process as “* * * any technique designed to minimize emissions without the use of add-on pollution controls.” Thus, even though the regulated pollutant for the Glass NSPS is PM, the term “modified process” can apply to emissions of any pollutant. Several glass manufacturing furnaces subject to the NSPS have used this provision for meeting the less stringent PM emission limits for modified processes by installing controls or process modifications to reduce emissions of other pollutants, such as nitrogen oxides (NO X ). However, under Section 112(d) of the CAA, we are required to establish area source standards specifically for emissions of the Urban HAP. Furthermore, we are required to base those emission standards on GACT. As noted above, we determined GACT for this source category based on the level of control achieved by an ESP in controlling metal HAP emissions, and for controlling PM emissions as a surrogate for metal HAP emissions. We understand that the costs of installing an ESP or equivalent control device on a glass furnace can be high. For example, we estimate the capital costs for installing a control device on a typical container furnace to be $800,000. However, our economic analysis of the industry indicates that the compliance costs for this final rule would be no more than 1 percent of sales, which we do not consider to be prohibitive. Although the metal HAP emissions reductions from an affected facility may be relatively low in terms of control costs, we note that, for facilities that use very small amounts of metal HAP in their glass formulations, the 0.01 g/kg (0.02 lb/ton) metal HAP emission limit can be met without having to install a control device. Finally, in addition to reductions in HAP emissions, the Glass Manufacturing Area Source NESHAP also will achieve significant reductions in fine PM emissions and will result in significant health benefits as a result of those reductions. Comment: One commenter stated that the proposed rule should incorporate factors to account for emissions during periods of low production, similar to the “zero production rate” factors specified in the Glass NSPS. The commenter reasoned that, without these factors, there will be confusion. Although the PM emission limit in the proposed rule (0.1 g/kg (0.2 lb/ton)) is the same as the NSPS limit for container glass furnaces and for soda lime and lead pressed and blown glass furnaces, the NSPS includes the zero production rate factor, whereas the proposed rule does not incorporate such a factor. Response: We appreciate the need to avoid confusion and to promote clarity in rulemaking, and we are sensitive to the need to implement the rule with easily understood materials and clear instruction. To that end, EPA currently plans to provide implementation guidance to minimize confusion that may be caused by the applicability of three Federal air pollution regulations that apply to this industry sector: the Arsenic NESHAP, the Glass NSPS, and this Area Source NESHAP. However, we have concluded that it would not be appropriate to incorporate one or more zero production rate factors in the final rule as suggested by the commenter. As specified in § 63.11452(b)(4), compliance with the emission limits in the proposed rule must be determined through emission testing when the furnace is operating at maximum production rate. Therefore, emission levels when the furnace is operating at low production rates are not relevant with respect to compliance with the emission limits. If the rule were to require demonstrating compliance with the emission limits on a continuous basis, such as by using a continuous emissions monitoring system, it could be argued that there is reason to incorporate a zero production rate factor. In such a case, the emission factor would likely increase as production approached zero, and at zero production, the emission factor would be undefined. However, that is not the case for the proposed rule, which requires parameter monitoring and recordkeeping to demonstrate continuous compliance. Finally, it should be noted that the proposed emission limits were developed from data that did not account for zero production rate emissions. Furthermore, specifying an emission limit without zero production rate factors is consistent with other NESHAP. Comment: One commenter questioned whether the proposed emission limits were based on data exclusively from large furnaces. The commenter explained that, when emissions are normalized for production, as is the case for the proposed emission factor format, they may not be representative of emissions from small furnaces if the limits are based on data from large furnaces. The commenter stated that, since the rule is likely to apply to small furnaces, the proposed limits should account for the higher emission factors characteristic of smaller furnaces. The commenter's company operates a small furnace that would be subject to the rule, as proposed, but would not be able to meet the proposed emission limit, even though the furnace is exhausted to a fabric filter. The commenter stated that a control efficiency of 99.91 percent would be needed for the furnace to meet the proposed limit. The commenter suggested including a correction factor for small furnaces, such as the zero production rate factors specified in the Glass NSPS, to account for this difference in emission levels between large and small furnaces. Response: In developing the emission limits for the proposed rule, we reviewed all available emission test data on controlled furnaces, which included the results of tests on a wide range of furnace sizes or production rates. Because the production data for many of the furnaces were claimed as confidential business information, we cannot release the actual production rates to the public. However, we can provide information on the range of the data. The production data for the furnaces used to develop for the PM emission limit ranged from less than 0.9 megagram per hour (Mg/hr) (1 ton per hour (tph)) to just under 27 Mg/hr (30 tph). Of the 19 data points used, 3 data points were for furnaces with production rates of less than 0.9 Mg/hr (1 tph) and 9 data points were for furnaces with production rates less than 4.5 Mg/hr (5 tph). To develop the metal HAP emission limit, the furnace production rates ranged from less than 0.9 Mg/hr (1 tph) to just under 23 Mg/hr (25 tph). Of the 15 data points used, the production rates for 2 furnaces were less than 0.9 Mg/hr (1 tph), and the rates for 9 furnaces were less than 4.5 Mg/hr (5 tph). Although the commenter did not specify the actual production rate for the furnace in question, furnaces with production rates less than 4.5 Mg/hr (5 tph) would most likely be considered small and furnaces with production rates less than 0.9 Mg/hr (1 tph) would certainly be considered small. Therefore, we disagree with the commenter's assumption that only data from large furnaces were used to develop the proposed emission limits. Although the commenter's suggestion about including a zero production rate factor would reduce the stringency of the standard for small furnaces, we do not believe such a factor is needed for the reasons described in the previous paragraph. Furthermore, as discussed in our response to the previous comment, we do not believe a zero production rate factor is relevant for an emission limit that must be demonstrated by testing when the source is operating at the maximum production rate. Comment: One commenter stated that the process of manufacturing glass tableware is significantly different from container glass due to the need for higher quality requirements. The raw material formulations differ, and tableware furnaces operate at higher temperatures with longer residence times. Tableware furnaces also are smaller. The commenter stated that the South Coast Air Quality Management District uses an emission factor for tableware furnaces that is nearly five times the factor used for container glass furnaces. Response: We acknowledge that PM emissions from glass furnaces can vary as a function of the type of glass produced. We also recognize that glass tableware manufacturing is generally classified as a type of pressed and blown glass rather than container glass, and PM emission factors for pressed and blown glass furnaces typically are greater than PM emission factors for container glass furnaces. When determining GACT for the proposed rule, we used all the available data on emissions of PM and metal HAP from furnaces controlled with ESP. Most of the data used in developing the proposed emission factors were from emission tests on pressed and blown glass furnaces. Therefore, we believe those emission limits are generally representative of the emission levels that can be achieved by an ESP-controlled furnace manufacturing pressed and blown glass. We also point out that the NESHAP specifies a metal HAP emission limit which may be more appropriate for specific furnaces that have unusually high PM emissions. Commenter: One commenter noted that the proposed GACT does not take into consideration the unique nature of the stained glass industry, which generally uses small periodic furnaces rather than large continuous furnaces to produce glass. The commenter believes stained glass manufacturing should be a separate subcategory with GACT defined in terms of the practices and emission reduction methods followed by stained glass manufacturers. Response: Although we conducted an extensive information gathering effort to compile data for developing the proposed NESHAP, we had little data on the stained glass sector and no basis for identifying stained glass as a separate subcategory of the glass manufacturing industry. We agree with the commenter that GACT for stained glass, if identified as a subcategory, should be based on methods and practices used by that sector to reduce metal HAP emissions. Although we still do not have the data to warrant creating a separate subcategory for stained glass, we have revised § 63.11448 of the rule to clarify that the rule applies to continuous furnaces and not to periodic furnaces. In doing so, we believe we have addressed the commenter's concerns. 6. Compliance Dates Comment: One commenter stated that most glass manufacturing furnaces are rebuilt every 10 to 15 years. The commenter suggested that the compliance date for an existing furnace should coincide with the next rebuild planned for that furnace. Otherwise, affected facilities would have to install controls “on the fly,” and doing so would interrupt glass production by forcing the facility to shut down affected furnaces for long periods. These shutdowns would result in significant costs to the affected facilities. The commenter pointed out that these costs were not accounted for in the estimated cost effectiveness and impacts for the proposed rule. Response: Section 112(i) of the CAA specifies that NESHAP require compliance “* * * as expeditiously as practicable, but in no event later than three years after the effective date* * *” of the standard. Since we had no information indicating this would be the case for the glass manufacturing industry, we proposed a compliance date of 2 years after promulgation of this final rule, which is consistent with the compliance date for other NESHAP. We believe this provision should allow adequate time for affected sources to install the controls needed to comply with this final rule. However, in the event that 2 years in not adequate, § 63.6(i)(3) of the General Provisions to part 63 allows owners or operators of affected facilities to request a 1-year extension of the compliance date if they can demonstrate that they need the additional time to install controls. Comment: One commenter noted that additional time is needed for reconstructed furnaces to install controls. The company is rebuilding several furnaces in 2008, which would make them reconstructed furnaces. The compliance date for reconstructed sources would be the startup date (sometime in 2008), but it will take additional time to design, receive, and install a control device on the reconstructed furnaces. Response: The General Provisions to 40 CFR part 63 define “new source” to include reconstructed sources, and for sources subject to 40 CFR part 63 standards, the compliance date for new sources is dictated by § 63.6(b) of the General Provisions to part 63. That is, new sources must be in compliance on the effective date of the rule or upon startup, whichever is later. Based on the limited facts submitted by the commenter, it is unclear if the subject furnaces would be considered existing furnaces or new furnaces. The General Provisions to part 63 define “commenced” as it relates to reconstruction as entering “* * * into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of construction or reconstruction.” The commenter should evaluate the facts of its particular situations in light of the definitions incorporated into this final rule. 7. Other Compliance Requirements Comment: One commenter identified an issue concerning furnaces that are used both for making glass that does not contain metal HAP and for making glass that contains metal HAP. The commenter requested clarification of the compliance requirements when the affected furnace is not producing glass that contains metal HAP. Response: We agree with the commenter that additional clarification is needed on furnaces that are used to produce HAP-containing glass and non-HAP glass. Our intent was that the emission limits and other compliance requirements would apply when the affected furnace is producing glass that contains one or more of the glass manufacturing metal HAP. We have revised § 63.11454 to clarify that the monitoring requirements apply only during times when any of the glass manufacturing metal HAP are used in the glass being produced. We also have revised § 63.11455 to clarify that the continuous compliance requirements apply under the same conditions. However, owners and operators must still keep the applicable records specified in § 63.11457, including records of production data, during any period when an affected furnace is operated, regardless of the batch formulation used. Comment: One commenter stated that the rule is unclear on the continuous compliance requirements for existing sources, particularly for sources that meet the metal HAP emission limit without having to install a control device. Response: We agree with the commenter that additional clarification is needed regarding continuous compliance requirements for affected furnaces that meet the emission limit without the use of an emission control device. We have revised § 63.11455 of this final rule to clarify how owners or operators of affected sources must demonstrate continuous compliance. For the specific case cited by the commenter, the only continuous compliance requirement would be the recordkeeping requirements specified in § 63.11457. Comment: One commenter stated that, even if a plant could meet the emission limit without installing a control device, the reporting and recordkeeping requirements of the rule are unnecessarily burdensome. Response: We disagree that the reporting and recordkeeping requirements of the proposed rule are overly burdensome. This final rule will require affected plants to submit an Initial Notification and a Notification of Compliance Status, but will require no reporting. As for the recordkeeping requirements, the proposed rule incorporates the basic requirements specified in the General Provisions to part 63, and our understanding is that most facilities routinely maintain these records. 8. Emission Testing Comment: Two commenters requested clarification of how emissions are tested and analyzed to show compliance with the proposed metal HAP emission limit. Both pointed out that the test method (Method 29) quantifies a wide range of metals, including metals that are not urban HAP and urban HAP metals that may not have been charged to the furnace as raw materials but could be present as contaminants in charge materials or fuels. The commenters stated that the rule should specify that emissions should be analyzed only for the metal HAP that are intentionally added to the batch as raw materials. Response: We agree with the commenters that the testing requirements specified in the proposed rule need further clarification regarding how the sampled emissions are analyzed. We have revised § 63.11452 in this final rule to clarify Equation 2, which is used to determine compliance with the metal HAP emission limit. We have defined the variable “ERM” in this final rule as the sum of the mass emission rates for the glass manufacturing metal HAP that are charged to the furnace as raw materials. We believe this revision addresses the commenters' concern. Comment: One commenter noted the definition of PM in the rule is ambiguous and could be interpreted to include filterable PM and condensible PM. Because the rule requires testing by Methods 5 or 17, and both of those methods measure filterable PM, the rule needs to clarify that the proposed PM emission limit refers to filterable PM. The commenter suggested that removing the word “total” from the definition would eliminate this ambiguity. Response: We agree with the commenter and have revised the definition of PM in § 63.11458 by replacing the phrase “total particulate emissions” with “filterable particulate emissions.” This revised definition is consistent with the test methods (Methods 5 and 17) that are specified for determining compliance. Comment: One commenter operates several identical furnaces that would be subject to the proposed rule. The commenter requested that the rule require testing on only one such furnace rather than on all of them. Response: We agree with the commenter that it should not be necessary to test multiple identical furnaces to demonstrate that all of the furnaces meet the emission limit. To address this issue, we revised § 63.11452(a) by adding paragraph (a)(3), which specifies conditions under which testing of a single furnace would be allowed as the compliance demonstration for other identical furnaces. Specifically, the owner or operator must certify that the furnaces that are not tested are identical in design to the furnace that is tested, including manufacturer, dimensions, production capacity, charging method, operating temperature, fuel type, burner configuration, and exhaust system configuration and design. Furthermore, the compliance test must be performed while the furnace is producing the glass formulation with the greatest potential to emit the glass manufacturing metal HAP, and the owner or operator must provide documentation that demonstrates why the tested glass formulation has the greatest potential to emit metal HAP. 9. Other Issues Comment: Two commenters requested clarification of the definition of raw material. The commenters stated it was not clear if cullet is considered a raw material, and they suggested revising the definition to exclude cullet. One of the commenters suggested adding the phrase “excluding glass manufacturing metal HAP that are introduced as cullet, trace constituents, or contaminants of other substances” to §§ 63.11448 and 63.11449(a)(1) to clarify what is considered a raw material. The other commenter suggested revising the definition of raw material to exclude material captured by control devices and recycled into the process. Response: We agree with the commenters that the proposed rule is not clear on whether or not cullet is considered a raw material. We also agree that material that is captured in a furnace control device and recycled should not be considered a raw material. We have revised the definition of raw material to state that cullet and material captured by the furnace control device are excluded. However, this definition does not exclude material collected from other sources, such as from fabric filters that are used to control emissions from raw material handling or transporting, because, while pre-vitrified materials do not re-emit metal HAP when remelted, baghouse fines from raw material handling and transporting have not been previously vitrified. Comment: One commenter stated that the rule is unclear as to the notification requirements for furnaces that, at the time of promulgation, were not subject, but later became subject due to increased production or changes in glass formulation. Response: To address the commenter's concern, we have revised § 63.11456(a) to indicate that the Initial Notification is due 120 days after the furnace becomes subject to this final rule due to increased production or changes in glass formulation. We also have revised § 63.11456(a) to specify deadlines for submitting the Notification of Compliance Status. C. Area Source NESHAP for Secondary Nonferrous Metals Processing Comment: One commenter noted that the intent of the CAA, as it relates to the Area Source Program, was to bring about reductions in HAP emissions from area sources. The commenter expressed disappointment that some of the rules proposed under the Area Source Program ( e.g. , Secondary Nonferrous Metals Processing) will not result in emissions reductions and recommended that future area source rules incorporate provisions that will provide additional public health protection from the effects of HAP emissions from area sources. Response: As previously explained, we have determined that GACT for the Secondary Nonferrous Metals Processing area source category is the use of a baghouse or fabric filter that achieves a control efficiency of 99 percent for existing sources and 99.5 percent for new sources. c The use of baghouses and fabric filters has been shown to be very effective in controlling PM and metal HAP emissions from this area source category. The commenter does not challenge any aspect of EPA's proposed GACT determination for this area source category. Instead, the commenter makes a blanket assertion that EPA is not acting consistently with the purposes of the area source provisions in the CAA ( i.e. , sections 112(c)(3) and 112(k)(3)(B)), because it is not requiring emission reductions beyond the level that is currently being achieved from this well-controlled source category. In support of this assertion, the commenter compares the requirements in the proposed rule to the area source category's current emission and control status. Such a comparison is flawed and irrelevant. c As previously explained, we have determined that outlet concentration limits of 0.034 g/dscm (0.015 gr/dscf) and 0.023 g/dscm (0.010 gr/dscf) reflect the GACT levels of control for existing and new secondary nonferrous processing area sources, respectively. Congress promulgated the relevant CAA area source provisions in 1990 in light of the level of area source HAP emissions at that time. Congress directed EPA to identify not less than 30 HAP which, as a result of emissions from area sources, present the greatest threat to public health in the largest number of urban areas, and to list sufficient area source categories to ensure that sources representing 90 percent of the 30 listed HAP are subject to regulation. As explained in the Integrated Urban Air Toxics Strategy, EPA based its listing decisions on the baseline NTI that the Agency compiled for purposes of implementing its air toxics program after the 1990 CAA Amendments. 64 FR 38706, 38711, n. 10. The baseline NTI reflected HAP emissions from glass manufacturing area sources in 1990. Thus, contrary to the commenter's suggestion, the relevant emission level for comparison is the emission level reflected in our baseline NTI, not the current emission level. Based on EPA's baseline NTI, emissions of urban metal HAP from this area source category have been reduced from approximately 25 Mg/yr (28 tpy) to less than 0.9 Mg/yr (1 tpy) since 1990. Furthermore, in promulgating the area source provisions in the CAA, Congress did not require EPA to issue area source standards that must achieve a specific level of emission reduction. Rather, Congress authorized EPA to issue standards under section 112(d)(5) for area sources, and those standards are to reflect GACT for the source category. To qualify as being generally available, a GACT standard would most likely be an existing control technology or management practice. Thus, it is not surprising that the GACT standard being finalized today codifies the existing effective HAP control approach being used by sources in the category. For the reasons stated above, this final rule is consistent with sections 112(c)(3), 112(k)(3)(B), and 112(d)(5). D. Area Source NESHAP—General Comment: A commenter expressed his “understanding that Congress only gave EPA [the authority] to establish requirements for new * * * [sic] major sources under the MACT and NSPS standards, and not new area sources.” The commenter further claimed that new area sources are the “jurisdiction” of State and local authorities. The commenter also expressed the policy objection “that to allow EPA to establish new and modified source requirements is tantamount to overriding the authority given the States and locals for establishing Best Available Control Technology (BACT) through their new source review programs.” The commenter further questioned which standard would apply to a new area source if EPA established GACT requirements on a new source, and these requirements were to differ from BACT requirements in the NSR permit for the source. Response: The comment above raises issues of EPA's authority for establishing GACT for new area sources and the appropriateness of potentially “overriding” locally-made BACT determinations for such sources. As generally discussed in the background section of this final rule, section 112 explicitly requires that EPA list categories of major sources, 42 U.S.C. 7412(c)(1), and area sources if those area sources meet the listing criteria in 42 U.S.C. 7412(c)(3). Furthermore, the statute requires EPA to promulgate emission standards for all listed categories whether the category is composed of major sources of HAP or area sources and directs that these standards address new as well as existing sources (42 U.S.C. 7412(d) & 7412(f)(2)). For area sources, Congress has provided EPA the option to promulgate GACT in lieu of MACT standards (42 U.S.C. 7412(d)(5)). In establishing timeframes for compliance for “any emission standard, limitation or regulation promulgated under this section [ i.e. , section 112],” Congress allowed for different compliance dates for new and existing sources (42 U.S.C. 112(i)(3). This provision reinforces Congress's intent that standards under section 112, including the required area source standards, address both new and existing sources. Therefore, the commenter's understanding of EPA's authority does not reflect these express provisions of the statute. Based on these statutory provisions, EPA disagrees with the commenter's position that EPA lacks authority to establish GACT for new area sources. Regarding the appropriateness of what the commenter calls “overriding” the authority to set BACT and BACT limits, we agree that there is a theoretical possibility inherent in the statute to have a GACT standard differ in stringency with a BACT limit in a permit. Initially, we note that BACT is triggered by the emission of different pollutants than those regulated under section 112 (see 42 U.S.C. 7412(b)(6)). The applicability provisions differ, and a major source under one program may or may not be a minor or area source under the other. Nevertheless, in many circumstances, a BACT limit targeting one pollutant may also, in effect, limit HAP emissions, and a HAP limit may incidentally limit a pollutant to which BACT would apply. It is a requirement for the owner or operator of a stationary source to comply with all air pollution control obligations that apply to the source under the CAA. To the extent that these obligations conflict and cannot be met simultaneously, the statute and EPA's regulations provide several mechanisms for resolving conflicts ( e.g. , provisions for developing alternate control and monitoring requirements, delegation mechanisms that allow States and local agencies to develop approvable alternate standards, etc.). Comment: One commenter recommended that EPA provide State and local agencies with sufficient additional grants so that they may participate in the implementation of additional area source rules. According to the commenter, Federal grants currently fall far short of what is needed to support State and local agencies in carrying out their existing responsibilities, and budget requests for the last two years have called for additional cuts. The commenter claimed that, without additional funding, some State and local air agencies may not be able to adopt and enforce additional area source rules. The commenter further stated that, even for permitting authorities that do not adopt these area source rules, it is possible that these rules will increase their work loads and resource needs. The commenter stated that, for example, synthetic minor permits (or Federally Enforceable State Operating Permits) will need to incorporate all applicable requirements, including area source standards. Noting that the title V permit fee funds are not available for these efforts, the commenter asserted that many State and local air agencies do not have sufficient resources for these responsibilities. Response: State and local air programs are an important and integral part of the regulatory scheme under the CAA. As always, EPA recognizes the efforts of State and local agencies in taking delegations to implement and enforce CAA requirements, including the area source standards under section 112. We understand the importance of adequate resources for State and local agencies to run these programs; however, we do not believe that this issue can be addressed through this rulemaking. EPA today is promulgating standards for the Secondary Nonferrous Metals Processing, Glass Manufacturing, and Clay Ceramics Manufacturing area source categories that reflect the practices currently in use by sources in these area source categories, and these standards represent what constitutes GACT for these categories under section 112(d)(5). GACT standards are technology-based standards. The level of State and local resources needed to implement these rules is not a factor that we consider in determining what constitutes GACT under section 112(d)(5). Moreover, we note that the commenter did not challenge our proposed determination to exempt from title V the Secondary Nonferrous Metals Processing or Clay Ceramics Manufacturing area source categories. Although the resource issue cannot be resolved through this rulemaking for the reason stated above, EPA remains committed to working with State and local agencies to implement this final rule. State and local agencies that receive grants for continuing air programs under CAA section 105 should work with their project officer to determine what resources are necessary to implement and enforce the area source standards. EPA will continue to provide the resources appropriated for section 105 grants consistent with the statute and the allotment formula developed pursuant to the statute. VI. Impacts of the Final Area Source Standards A. Glass Manufacturing 1. Air Quality Impacts For the three sources that will be required to install emission controls to meet the emission limits specified in this final rule, we estimate nationwide emissions of the glass manufacturing metal HAP to be 26.2 Mg/yr (28.9 tpy). We estimate that this final rule will reduce nationwide emissions of the glass manufacturing metal HAP by about 25.6 Mg/yr (28.2 tpy). This final rule will also reduce emissions of PM by 377 Mg/yr (415 tpy). These estimates are based on the assumption that an ESP will be installed on one pressed and blown glass furnace, and that fabric filters will be installed on two pressed and blown glass furnaces. We project that, during the first three years of the standard, nine new furnaces will be constructed and that all nine furnaces will be in the container glass sector. Because none of these new furnaces are expected to use any of the glass manufacturing metal HAP as raw materials, we project that none of the nine new furnaces will be affected by this final rule. Therefore, we estimate that this final rule will have no air quality impacts on new sources. Indirect or secondary air impacts of this final rule will result from the increased electricity usage associated with the operation of control devices. Assuming that plants will purchase electricity from a power plant, we estimate that the final standards will increase secondary emissions of criteria pollutants, including PM, sulfur dioxide (SO 2 ), NO X , and carbon monoxide (CO) from power plants. For the three existing sources that will be required to install emission controls, this final rule will increase secondary PM emissions by 0.28 Mg/yr (0.31 tpy); secondary SO 2 emissions by about 11.1 Mg/yr (12.2 tpy); secondary NO X emissions by about 5.5 Mg/yr (6.1 tpy); and secondary CO emissions by about 0.18 Mg/yr (0.20 tpy). For the estimated nine new sources within the Glass Manufacturing industry over the next three years, we estimate no secondary air impacts because we project that none of the new sources will be affected sources under this rule. 2. Water and Solid Waste Impacts To comply with this final rule, we expect that affected facilities will control emissions by installing and operating ESP or fabric filters, neither of which generates wastewater. Therefore, we project that this final rule will have no water impacts. Glass manufacturers typically purchase highly refined and purified raw materials, and they usually recycle internal captured baghouse and ESP fines into the raw material to be fed back into the furnace. Therefore, we expect the solid waste impacts to be far less than if facilities were to dispose of their ESP and baghouse fines. We estimate that this final rule will generate 37.7 Mg/yr (41.6 tpy) of solid waste from existing sources. These estimates are based on the assumption that an ESP will be installed on one pressed and blown glass furnace, and that fabric filters will be installed on two pressed and blown glass furnaces. For new sources, we estimate that this final rule will have no impacts on solid waste generation. 3. Energy Impacts Energy impacts consist of the electricity and fuel needed to operate control devices and other equipment that are required under this final rule. We assume that affected facilities will comply with this final rule by installing and operating either ESP or fabric filters, which require electricity to operate. Specifically, we assumed that an ESP will be installed on one pressed and blown glass furnace, and that fabric filters will be installed on two pressed and blown glass furnaces. Under this scenario, we project that this final rule will increase overall energy demand (i.e., electricity demand) for existing sources by about 1,970 megawatt-hours per year, or 7.1 thousand gigajoules per year (6.7 billion British thermal units per year). We estimate that none of the nine new sources projected to go into operation during the first three years of the standard will be affected by this final rule. Therefore, we are not expecting any energy impacts for new sources. 4. Cost Impacts The estimated total capital costs of this final rule for existing sources are $1.42 million. These capital costs include the costs to purchase and install ESP or fabric filters on the three affected furnaces that are not currently controlled. The estimated annualized cost of this final rule for existing sources is $491,000 per year. The annualized costs account for the annualized capital costs of the control and monitoring equipment, operation and maintenance expenses, performance testing, and recordkeeping costs for the three existing facilities within the source category that will be required to install new emission controls. The other affected facilities will incur costs only for submitting the notifications and for annual control device inspections because those facilities already meet the testing, monitoring, and recordkeeping requirements that are required under this final rule. We estimate that none of the nine new sources projected to go into operation during the first three years of the standard will be affected sources under this final rule. Therefore, we estimate no cost impacts for new sources. 5. Economic Impacts Both the magnitude of control costs needed to comply with this final rule and the distribution of these costs among affected facilities can have an impact in determining how the market will change in response to the rule. Total annualized costs for this final rule are estimated to be approximately $0.48 million. Only three facilities are estimated to require additional capital costs because of this final rule. We obtained revenue data for two of the three companies that operate facilities that will be required to install emission controls under this final rule. Based on those data, cost-to-sales estimates for those two affected facilities are 0.66 percent and 1.0 percent, respectively. Revenue data were not available for the other facility that will be affected by this final rule, so the national average value of shipments per worker from the 2002 Census of Manufacturers was used along with the average number of workers per facility to estimate revenues. The resulting costs for this and the other two facilities are relatively small and are not expected to result in a significant market impact whether they are passed on to the purchaser or absorbed by the company. B. Clay Ceramics Manufacturing Unlike the glass manufacturing industry, which still has some uncontrolled sources of urban HAP, sources in the clay ceramics manufacturing source category have made significant emission reductions through process changes and installation of control equipment. Affected sources are well-controlled, and our GACT determination reflects such controls. We estimate that the only impact to affected sources is the labor burden associated with the reporting and recordkeeping requirements. The cost associated with recordkeeping and the one-time reporting requirements is estimated to be $974 per facility. C. Secondary Nonferrous Metals Processing Similar to the clay ceramics manufacturing industry, all of the affected sources in the secondary nonferrous metal processing category have installed control equipment on their furnace melting operations. Affected sources are well-controlled, and our GACT determination reflects such controls. We estimate that the only impact associated with this final rule is the reporting and recordkeeping requirements. The cost associated with recordkeeping and the one-time reporting requirements is estimated to be $390 per facility. VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it may raise novel legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (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 these NESHAP for Clay Ceramics Manufacturing Area Sources, Glass Manufacturing Area Sources, and Secondary Nonferrous Metals Processing Area Sources have been submitted for approval to OMB under the Paperwork Reduction Act , 44 U.S.C. 3501 et seq. The information collection requirements are not enforceable until OMB approves them. The recordkeeping and reporting requirements in these final rules are based on the information collection requirements in the part 63 General Provisions (40 CFR part 63, subpart A). These recordkeeping and reporting requirements are mandatory pursuant to section 114 of the CAA (42 U.S.C. 7414). All information submitted to EPA pursuant to the information collection requirements for which a claim of confidentiality is made is safeguarded according to EPA's implementing regulations at 40 CFR part 2, subpart B. The NESHAP for Clay Ceramics Manufacturing area sources requires applicable one-time notifications required by the General Provisions. Plant owners or operators are required to include compliance certifications for the management practices in their Notifications of Compliance Status. The affected sources are expected to already have the required control and monitoring equipment in place and already conduct the required monitoring and recordkeeping activities. The annual burden for this information collection averaged over the first three years of this ICR is estimated to total 196 labor hours per year at a cost of approximately $16,600 for 17 existing clay ceramics manufacturing area sources (51 existing sources averaged over three years). No capital/startup costs or operation and maintenance costs are associated with the information collection requirements. No costs or burden hours are estimated for new clay ceramics manufacturing area sources because no new area sources are projected for the next three years. The NESHAP for Glass Manufacturing also requires applicable one-time notifications required by the General Provisions, monitoring of control device parameters, and recordkeeping. The annual burden for this collection of information averaged over the first three years of this ICR is estimated to total 190 labor hours per year at a cost of $16,130 for the 21 glass manufacturing area source facilities that will be subject to this final rule. This burden estimate includes time for acquisition, installation, and use of monitoring technology and systems, one-time notifications, and recordkeeping. Total capital/startup costs associated with the monitoring requirements (e.g., costs for hiring performance test contractors and purchase of monitoring and file storage equipment) over the three-year period of the ICR are estimated at $15,990, with operation and maintenance costs of $9,850/yr. No costs or burden estimates are estimated for new sources because no new sources are project for the next three years. The NESHAP for Secondary Nonferrous Metals Processing area sources requires one-time notifications required by the General Provisions. Plant owners or operators are required to conduct performance tests and include compliance certifications for the percent PM reduction achieved by the required control device in their Notifications of Compliance Status. The affected sources are expected to already have the required control and monitoring equipment in place and already conduct the required monitoring and recordkeeping activities. The annual burden for this information collection averaged over the first three years of this ICR is estimated to total 15 labor hours per year at a cost of approximately $1,300 for three existing secondary nonferrous metals processing area sources (10 existing sources averaged over three years). No capital/startup costs or operation and maintenance costs are associated with the information collection requirements. No costs or burden hours are estimated for new secondary nonferrous metals processing area sources because no new area sources are projected for the next three years. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to, respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR part 63 are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in these final rules. 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 the area source NESHAP on small entities, a small entity is defined as: (1) A small business whose parent company meets the Small Business Administration size standards for small businesses found at 13 CFR 121.201 (less than 500 to 750 employees for Clay Ceramics Manufacturing, less than 750 to 1,000 employees for Glass Manufacturing, and less than 750 employees for Secondary Nonferrous Metals Processing, depending on the size definition for the affected NAICS code); (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 these final rules on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Based on our estimates, EPA does not expect any new clay ceramic or secondary nonferrous metal processing sources to be constructed in the foreseeable future and so, therefore, did not estimate the impacts for new clay ceramics manufacturing or secondary nonferrous metal processing sources. There would be no significant impacts on new or existing clay ceramics manufacturing facilities or secondary nonferrous metals processing facilities because these final rules do not create any new requirements or burdens other than minimal notification requirements. The minimal notification requirements consist of reading this final rule and providing two initial notifications to EPA: one notifying EPA that the facility is subject to this final rule and one notifying EPA that the facility is in compliance with this final rule. These notifications may be submitted together. We estimate the cost of these one-time notification requirements to be $974 for each clay ceramics manufacturing facility and $390 for each secondary nonferrous metals processing facility. These costs were estimated based on the costs of technical, management, and clerical support salaries. We also estimate that 34 clay ceramics facilities and 6 secondary nonferrous metals processing facilities are owned and operated by small businesses. These notification costs would be less than 0.25 percent for any of these small businesses. Twenty-one glass manufacturing facilities are estimated to require additional costs because of this final rule. Only one of these facilities is a small business. Although these final rules will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this final rule on small entities. These final rules are designed to harmonize with existing State and local requirements. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that these final rules do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or to the private sector in any one year. Thus, these final rules are not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that these final rules contain no regulatory requirement that might significantly or uniquely affect small governments. These final rules contain no requirements that apply to such governments, impose no obligations upon them, and will not result in expenditures by them of $100 million or more in any one year or any disproportionate impacts on them. E. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to assu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE7-24720. Public record. Not legal advice.