Vol. 76 Tuesday, No. 220 November 15, 2011

Part II

Environmental Protection Agency

40 CFR Part 63 National Emission Standards for Hazardous Air Pollutant Emissions for Primary Lead Processing; Final Rule

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ENVIRONMENTAL PROTECTION shutdown, and malfunction and makes Radiation Docket and Information AGENCY minor non-substantive changes to the Center is (202) 566–1742. rule. 40 CFR Part 63 FOR FURTHER INFORMATION CONTACT: For DATES: This final action is effective on questions about this final action, contact [EPA–HQ–OAR–2004–0305; FRL–9491–2] November 15, 2011. Mr. Nathan Topham, Office of Air RIN 2060–AQ43 ADDRESSES: The EPA has established a Quality Planning and Standards, Sector docket for this action under Docket ID Policies and Programs Division, U.S. National Emission Standards for No. EPA–HQ–OAR–2004–0305. All Environmental Protection Agency, Hazardous Air Pollutant Emissions for documents in the docket are listed on Research Triangle Park, NC 27711; Primary Lead Processing the http://www.regulations.gov Web telephone number: (919) 541–0483; fax site. Although listed in the index, some AGENCY: Environmental Protection number: (919) 541–3207; and email Agency (EPA). information is not publicly available, address: [email protected]. For e.g., confidential business information additional contact information, see the ACTION: Final rule. (CBI) or other information whose following SUPPLEMENTARY INFORMATION SUMMARY: This action finalizes the disclosure is restricted by statute. section. residual risk and technology review Certain other material, such as conducted for the Primary Lead copyrighted material, is not placed on SUPPLEMENTARY INFORMATION: For Processing source category regulated the Internet, and will be publicly specific information regarding the under national emission standards for available only in hard copy form. modeling methodology, contact Dr. hazardous air pollutants (NESHAP). Publicly available docket materials are Michael Stewart, Office of Air Quality This action finalizes amendments to the available either electronically through Planning and Standards, Health and NESHAP that include revision of the http://www.regulations.gov, or in hard Environmental Impacts Division, Air rule’s title and applicability provision, copy at the EPA Docket Center, EPA Toxics Assessment Group (C504–06), revisions to the stack emission limits for West Building, Room Number 3334, U.S. Environmental Protection Agency, lead, work practice standards to 1301 Constitution Ave. NW., Research Triangle Park, NC 27711; minimize fugitive dust emissions, and Washington, DC. The Public Reading telephone number: (919) 541–7524; fax the modification and addition of testing Room hours of operation are 8:30 a.m. number: (919) 541–0840; and email and monitoring and related notification, to 4:30 p.m. Eastern Standard Time address: [email protected]. For recordkeeping, and reporting (EST), Monday through Friday. The information about the applicability of requirements. It also finalizes revisions telephone number for the Public this NESHAP to a particular entity, to the regulatory provisions related to Reading Room is (202) 566–1744, and contact the appropriate person listed in emissions during periods of startup, the telephone number for the Air and Table 1 to this preamble.

TABLE 1—LIST OF EPA CONTACTS FOR THE NESHAP ADDRESSED IN THIS ACTION

NESHAP for: OECA Contact 1 OAQPS Contact 2

Primary Lead Processing...... Maria Malave, (202) 564–7027, Nathan Topham, (919) 541–0483, [email protected]. [email protected]. 1 EPA’s Office of Enforcement and Compliance Assurance. 2 EPA’s Office of Air Quality Planning and Standards.

Background Information Document. B. Where can I get a copy of this C. Primary Lead Processing Risk On February 17, 2011 (76 FR 9410), the document? Assessment EPA proposed revisions to the Primary C. Judicial Review VI. Impacts of the Final Rule Lead Smelting NESHAP based on II. Background VII. Statutory and Executive Order Reviews A. Executive Orders 12866: Regulatory evaluations performed by the EPA in III. Summary of the Final Rule A. What are the final rule amendments for Planning and Review, and Executive order to conduct our risk and the Primary Lead Processing source Order 13563: Improving Regulation and technology review. In this action, we are category? Regulatory Review finalizing decisions and revisions for B. What are the requirements during B. Paperwork Reduction Act the rule. Some of the significant periods of startup, shutdown, and C. Regulatory Flexibility Act comments and our responses are malfunction? D. Unfunded Mandates Reform Act summarized in this preamble; a C. What are the effective and compliance E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation dates of the standards? summary of the other public comments and Coordination With Indian Tribal IV. Summary of Significant Changes Since on the proposal, and the EPA’s Governments responses to those comments, is Proposal G. Executive Order 13045: Protection of available in Docket ID No. EPA–HQ– A. Changes to the Risk Assessment Children From Environmental Health Performed Under Section 112(f) of the OAR–2004–0305. A red-line version of Risks and Safety Risks Clean Air Act H. Executive Order 13211: Actions the regulatory language that B. Changes to the Technology Review incorporates the changes in this action Concerning Regulations That Performed Under Section 112(d)(6) of the Significantly Affect Energy Supply, is available in the docket. Clean Air Act Distribution, or Use Organization of This Document. The C. Other Changes Since Proposal I. National Technology Transfer and following outline is provided to aid in V. Summary of Significant Comments and Advancement Act locating information in the preamble. Responses J. Executive Order 12898: Federal Actions A. Timeline for Compliance To Address Environmental Justice in I. General Information B. The EPA’s Authority Under Section 112 Minority Populations and Low-Income A. Does this action apply to me? of the Clean Air Act Populations

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K. Congressional Review Act I. General Information A. Does this action apply to me? Regulated Entities. Categories and entities potentially regulated by this action include:

TABLE 2—NESHAP AND INDUSTRIAL SOURCE CATEGORIES AFFECTED BY THIS FINAL ACTION

NESHAP and source category NAICS 1 code MACT 2 code

Primary Lead Processing ...... 331419 0204 1 North American Industry Classification System. 2 Maximum Achievable Control Technology.

Table 2 is not intended to be action will be posted on the TTN’s Ave. NW., Washington, DC 20460, with exhaustive, but rather provides a guide policy and guidance page for newly a copy to both the person(s) listed in the for readers regarding entities likely to be proposed and promulgated rules at the preceding FOR FURTHER INFORMATION affected by the final action for the following address: http://www.epa.gov/ CONTACT section, and the Associate source category listed. To determine ttn/caaa/new.html. The TTN provides General Counsel for the Air and whether your facility would be affected, information and technology exchange in Radiation Law Office, Office of General you should examine the applicability various areas of air pollution control. Counsel (Mail Code 2344A), U.S. EPA, criteria in the appropriate national Additional information is available on 1200 Pennsylvania Ave. NW., emission standards for hazardous air the residual risk and technology review Washington, DC 20460. pollutants (NESHAP). As defined in the (RTR) web page at http://www.epa.gov/ II. Background source category listing report published ttn/atw/rrisk/rtrpg.html. This by the EPA in 1992, the Primary Lead information includes source category Section 112 of the CAA establishes a Smelting source category is defined as descriptions and detailed emissions and two-stage regulatory process to address any facility engaged in producing lead other data that were used as inputs to emissions of hazardous air pollutants metal from ore concentrates; including, the risk assessments. (HAP) from stationary sources. In the but not limited to, the following first stage, after the EPA has identified smelting processes: Sintering, reduction, C. Judicial Review categories of sources emitting one or preliminary treatment, and refining Under section 307(b)(1) of the CAA, more of the HAP listed in section 112(b) operations.1 To be consistent with the judicial review of this final action is of the CAA, section 112(d) calls for us 1992 listing, the EPA is revising the available only by filing a petition for to promulgate NESHAP for those applicability of the Primary Lead review in the United States Court of sources. ‘‘Major sources’’ are those that Smelting NESHAP to apply to any Appeals for the District of Columbia emit, or have the potential to emit, any facility that produces lead metal from Circuit by January 17, 2012. Under single HAP at a rate of 10 tons per year lead ore concentrates and is changing section 307(b)(2) of the CAA, the (TPY) or more, or 25 TPY or more of any the title of the rule to reference Primary requirements established by this final combination of HAP. For major sources, Lead Processing. For clarification rule may not be challenged separately in these technology-based standards must purposes, all reference to lead emissions any civil or criminal proceedings reflect the maximum degree of emission in this preamble means ‘‘lead brought by the EPA to enforce the reductions of HAP achievable (after compounds’’ (which is a hazardous air requirements. considering cost, energy requirements, pollutant) and all reference to lead Section 307(d)(7)(B) of the CAA and non-air quality health and production means elemental lead further provides that ‘‘[o]nly an environmental impacts) and are (which is not a hazardous air pollutant) objection to a rule or procedure which commonly referred to as maximum as provided under Clean Air Act (CAA) was raised with reasonable specificity achievable control technology (MACT) section 112(b)(7)). during the period for public comment standards. If you have any questions regarding (including any public hearing) may be For MACT standards, the statute the applicability of any aspect of the raised during judicial review.’’ This specifies certain minimum stringency Primary Lead Processing NESHAP, section also provides a mechanism for requirements, which are referred to as please contact the appropriate person us to convene a proceeding for floor requirements and may not be listed in Table 1 of this preamble in the reconsideration, ‘‘[i]f the person raising based on cost considerations. See CAA preceding FOR FURTHER INFORMATION an objection can demonstrate to the EPA section 112(d)(3). For new sources, the CONTACT section. that it was impracticable to raise such MACT floor cannot be less stringent B. Where can I get a copy of this objection within [the period for public than the emission control that is document? comment] or if the grounds for such achieved in practice by the best objection arose after the period for controlled similar source. The MACT In addition to being available in the public comment (but within the time standards for existing sources can be docket, an electronic copy of this final specified for judicial review) and if such less stringent than floors for new action will also be available on the objection is of central relevance to the sources, but they cannot be less World Wide Web (www) through the outcome of the rule.’’ Any person stringent than the average emission Technology Transfer Network (TTN). seeking to make such a demonstration to limitation achieved by the best- Following signature, a copy of the final us should submit a Petition for performing 12 percent of existing 1 USEPA. Documentation for Developing the Reconsideration to the Office of the sources in the category or subcategory Initial Source Category List—Final Report, USEPA/ Administrator, U.S. EPA, Room 3000, (or the best-performing five sources for OAQPS, EPA–450/3–91–030, July, 1992. Ariel Rios Building, 1200 Pennsylvania categories or subcategories with fewer

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than 30 sources). In developing MACT, feasible under section 112(d)(6). In subpart TTT. The primary lead we must also consider control options addition, we are taking the following processing industry consists of facilities that are more stringent than the floor, actions: that produce lead metal from ore under CAA section 112(d)(2). We may • Revising the requirements in the concentrates. The source category establish standards more stringent than NESHAP related to emissions during covered by this MACT standard the floor, based on the consideration of periods of startup, shutdown, and currently includes only one operating the cost of achieving the emissions malfunction (SSM). facility, The Doe Run Company in reductions, any non-air quality health • Revising the title of the rule and Herculaneum, Missouri. and environmental impacts, and energy amending the applicability section For the reasons provided in the requirements. In promulgating MACT consistent with the definition of the proposed rule and in the support standards, CAA section 112(d)(2) directs source category adopted in 1992, to documents in the docket, we have us to consider the application of provide that the NESHAP applies to any determined that the risks associated measures, processes, methods, systems, facility processing lead ore concentrate with this source category are or techniques that reduce the volume of to produce lead metal. unacceptable and are therefore or eliminate HAP emissions through • Replacing the definition of promulgating requirements to reduce process changes, substitution of ‘‘primary lead smelter’’ with a definition the risk to an acceptable level. Once risk materials, or other modifications; of ‘‘primary lead processor’’ and adding is reduced to an acceptable level, we enclose systems or processes to definitions of ‘‘secondary lead analyze whether there are additional eliminate emissions; collect, capture, or smelters,’’ ‘‘lead refiners,’’ and ‘‘lead controls that will provide an ample treat HAP when released from a process, remelters.’’ margin of safety, considering cost, stack, storage, or fugitive emissions • Incorporating the use of plain energy, safety, and other relevant point; and/or are design, equipment, language into the rule. factors. We have concluded that there work practice, or operational standards. • Addressing technical and editorial are no additional cost-effective controls In the second stage of the regulatory corrections in the rule. available beyond those that we are process, we undertake two different • Responding to the January 2009 requiring to reduce risk to an acceptable analyses, as required by the CAA: petition for rulemaking from the Natural level and thus the same controls to section 112(d)(6) of the CAA calls for us Resources Defense Council (NRDC) that ensure an acceptable level of risk will to review these technology-based the original primary lead NESHAP also provide an ample margin of safety. standards and to revise them ‘‘as should have included an emission To satisfy section 112(f) of the CAA, we necessary (taking into account standard for organic HAP and are, therefore, revising the existing developments in practices, processes, announcing our intention to collect MACT standard to include: and control technologies)’’ no less additional data needed to develop a • An emission cap of 1.2 TPY for the frequently than every 8 years; and standard for organic HAP. furnace area stack and the refining within 8 years after promulgation of the We note that the Doe Run operation stacks, combined.2 • technology standards, CAA section Herculaneum Smelter, the only facility Work practice standards to 112(f) calls for us to evaluate the risk to in the source category, is subject to a minimize fugitive dust emissions. public health remaining after Consent Decree requiring submission of To satisfy section 112(d)(6) of the application of the technology-based a facility-wide cleanup plan by January CAA, we are revising the existing MACT standards and to revise the standards, if 1, 2013, shutdown of their sintering standard to include a reduction of the necessary, to provide an ample margin operations by the end of 2013, and lead emission limit for the main stack. of safety to protect public health or to shutdown of the blast furnace by April The MACT standard is being lowered prevent, taking into consideration costs, 30, 2014. The Consent Decree will from the current 1.0 pound per ton of energy, safety, and other relevant achieve drastic reductions in emissions lead produced to 0.97 pound of lead per factors, an adverse environmental effect. of lead and other pollutants and will ton of lead produced based on a In doing so, the EPA may adopt provide substantial environmental and determination that developments in standards equal to existing MACT public health benefits. The practices, processes, or control standards if the EPA determines that the Herculaneum area has also been technologies since promulgation of the existing standards are sufficiently designated as a nonattainment area for MACT standards demonstrate that the protective. NRDC v. EPA, 529 F.3d the 2008 National Ambient Air Quality facility can meet a reduced emission 1077, 1083 (DC Cir. 2008). Standards (NAAQS) for lead. limit from the main stack pursuant to On February 17, 2011, the EPA Attainment of the 2008 Lead NAAQS CAA section 112(d)(6). published a proposed rule in the (which is demonstrated based on three In addition to our reviews under Federal Register for the Primary Lead years of data at or below the level of the sections 112(f) and 112(d)(6) of the Smelting NESHAP, 40 CFR part 63 NAAQS) is required by December 2015. CAA, we are promulgating the subpart TTT, that took into The State of Missouri is required to following: consideration the residual risk and • The revision of the applicability submit its attainment demonstration technology review (RTR) analyses for section of the rule consistent with the State Implementation Plan (SIP) by June that source category. This action definition of the source category 30, 2012. provides the EPA’s final determinations adopted in 1992, subpart TTT which pursuant to the RTR provisions of CAA III. Summary of the Final Rule applies to any facility that produces section 112 for the Primary Lead lead metal from lead concentrate ore. Processing source category. Specifically, A. What are the final rule amendments • Changes to the Primary Lead as a result of our analyses, we are for the Primary Lead Processing source Processing MACT standards to revising the requirements of the category? NESHAP to ensure public health and The National Emission Standards for 2 EPA notes that it is setting a combined emission the environment are protected Hazardous Air Pollutant Emissions: limit for these sources because, as noted in the proposal (76 FR 9432), and the risk assessment consistent with section 112(f) and that Primary Lead Smelting was documents to support the proposed and final emission reductions are consistent with promulgated on June 6, 1999 (64 FR rulemakings, these sources have overlapping points what is economically and technically 30204), and codified at 40 CFR part 63, of maximum lead impact.

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eliminate the SSM exemption. These requirement to comply with the best performing or best controlled changes revise Table 1 in 40 CFR part otherwise applicable CAA section sources when setting emission 63, subpart TTT to indicate that several 112(d) emission standard during periods standards. Moreover, while the EPA requirements of the 40 CFR part 63 of SSM. accounts for variability in setting General Provisions related to periods of We have eliminated the SSM emissions standards consistent with the SSM do not apply. We are adding exemption in this rule. Consistent with section 112 caselaw, nothing in that provisions to the Primary Lead Sierra Club v. EPA, the EPA has caselaw requires the Agency to consider Processing MACT standards requiring established standards in this rule that malfunctions as part of that analysis. sources to operate in a manner that apply at all times. We have also revised Section 112 uses the concept of ‘‘best minimizes emissions, removing the Table 1 (the General Provisions table) in controlled’’ and ‘‘best performing’’ unit SSM plan requirement, clarifying the several respects. For example, we have in defining the level of stringency that required conditions for performance eliminated that incorporation of the section 112 performance standards must tests, and revising the SSM-associated General Provisions’ requirement that the meet. Applying the concept of ‘‘best recordkeeping and reporting source develop an SSM plan. We have controlled’’ or ‘‘best performing’’ to a requirements to require reporting and also eliminated or revised certain unit that is malfunctioning presents recordkeeping for periods of recordkeeping and reporting that related significant difficulties, as malfunctions malfunction. We are also adding to the SSM exemption. The EPA has are sudden and unexpected events. provisions to provide an affirmative attempted to ensure that we have not Further, accounting for malfunctions defense against civil penalties for included in the regulatory language any would be difficult, if not impossible, exceedances of emission standards provisions that are inappropriate, given the myriad different types of caused by malfunctions, as well as unnecessary, or redundant in the malfunctions that can occur across all criteria for establishing the affirmative absence of the SSM exemption. sources in the category and given the defense. In establishing the standards in this difficulties associated with predicting or • Replacement of the word ‘‘shall’’ rule, the EPA has taken into account accounting for the frequency, degree, with the word ‘‘must’’ in the regulatory startup and shutdown periods and, for and duration of various malfunctions text. We are also replacing ‘‘thru’’ with the reasons explained below, has not that might occur. As such, the ‘‘through.’’ We are replacing the established different standards for those performance of units that are definition of ‘‘primary lead smelter’’ periods. Information on periods of malfunctioning is not ‘‘reasonably’’ with a definition of ‘‘primary lead startup and shutdown in the industry foreseeable. See, e.g., Sierra Club v. processor’’ and adding definitions of indicate that emissions during these EPA, 167 F.3d 658, 662 (DC Cir. 1999) ‘‘secondary lead smelters,’’ ‘‘lead periods do not increase. Furthermore, (EPA typically has wide latitude in refiners,’’ and ‘‘lead remelters.’’ all processes are controlled by either determining the extent of data-gathering These revisions to the Primary Lead control devices or work practices, and necessary to solve a problem. We Processing MACT standard are expected these controls would not typically be generally defer to an agency’s decision to result in emissions reductions in lead affected by startup or shutdown. Also, to proceed on the basis of imperfect and other hazardous air pollutants and compliance with the standards requires scientific information, rather than to increased compliance costs to the averaging of emissions over three-month ‘‘invest the resources to conduct the industry. No economic impacts on small periods, which accounts for the perfect study.’’). See also, Weyerhaeuser businesses are expected as a result of variability of emissions that may result v. Costle, 590 F.2d 1011, 1058 (DC Cir. the revisions to the rule. We have during periods of startup and shutdown. 1978) (‘‘In the nature of things, no determined that the one facility in this Therefore, separate standards for general limit, individual permit, or even source category can meet the applicable periods of startup and shutdown are not any upset provision can anticipate all emissions standards at all times, being promulgated. upset situations. After a certain point, including periods of startup and Periods of startup, normal operations, the transgression of regulatory limits shutdown, in compliance with the and shutdown are all predictable and caused by ‘uncontrollable acts of third current MACT standards. routine aspects of a source’s operations. parties,’ such as strikes, sabotage, However, by contrast, malfunction is B. What are the requirements during operator intoxication or insanity, and a defined as a ‘‘sudden, infrequent, and variety of other eventualities, must be a periods of startup, shutdown, and not reasonably preventable failure of air malfunction? matter for the administrative exercise of pollution control and monitoring case-by-case enforcement discretion, not The United States Court of Appeals equipment, process equipment or a for specification in advance by for the District of Columbia Circuit process to operate in a normal or usual regulation.’’). In addition, the goal of a vacated portions of two provisions in manner * * *’’ (40 CFR 63.2). The EPA best controlled or best performing the EPA’s CAA Section 112 regulations has determined that CAA section 112 source is to operate in such a way as to governing the emissions of HAP during does not require that emissions that avoid malfunctions of the source and periods of startup, shutdown, and occur during periods of malfunction be accounting for malfunctions could lead malfunction (SSM). Sierra Club v. EPA, factored into development of CAA to standards that are significantly less 551 F.3d 1019 (DC Cir. 2008), cert. section 112 standards. Under section stringent than levels that are achieved denied, 130 S. Ct. 1735 (U.S. 2010). 112, emission standards for new sources by a well-performing non- Specifically, the Court vacated the SSM must be no less stringent than the level malfunctioning source. The EPA’s exemption contained in 40 CFR ‘‘achieved’’ by the best controlled approach to malfunctions is consistent 63.6(f)(1) and 40 CFR 63.6(h)(1), that are similar source and for existing sources with section 112 and is a reasonable part of a regulation, commonly referred generally must be no less stringent than interpretation of the statute. to as the ‘‘General Provisions Rule,’’ that the average emission limitation In the event that a source fails to the EPA promulgated under section 112 ‘‘achieved’’ by the best performing 12 comply with the applicable CAA section of the CAA. When incorporated into percent of sources in the category. There 112(d) standards as a result of a CAA Section 112(d) regulations for is nothing in section 112 that directs the malfunction event, the EPA would specific source categories, these two Agency to consider malfunctions in determine an appropriate response provisions exempt sources from the determining the level ‘‘achieved’’ by the based on, among other things, the good

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faith efforts of the source to minimize 63.1544(d), and to prevent future view that a system that incorporates emissions during malfunction periods, malfunctions. For example, the source some level of flexibility is reasonable. including preventative and corrective must prove by a preponderance of the The affirmative defense simply provides actions, as well as root cause analyses evidence that ‘‘[r]epairs were made as for a defense to civil penalties for excess to ascertain and rectify excess expeditiously as possible when the emissions that are proven to be beyond emissions. The EPA would also applicable emission limitations were the control of the source. By consider whether the source’s failure to being exceeded * * *’’ and that ‘‘[a]ll incorporating an affirmative defense, the comply with the CAA section 112(d) possible steps were taken to minimize EPA has formalized its approach to standard was, in fact, ‘‘sudden, the impact of the excess emissions on upset events. In a Clean Water Act infrequent, not reasonably preventable’’ ambient air quality, the environment setting, the Ninth Circuit required this and was not instead ‘‘caused in part by and human health * * *.’’ In any type of formalized approach when poor maintenance or careless judicial or administrative proceeding, regulating ‘‘upsets beyond the control of operation.’’ 40 CFR 63.2 (definition of the Administrator may challenge the the permit holder.’’ Marathon Oil Co. v. malfunction). assertion of the affirmative defense and, EPA, 564 F.2d 1253, 1272–73 (9th Cir. Finally, the EPA recognizes that even if the respondent has not met its burden 1977). But see, Weyerhaeuser Co. v. equipment that is properly designed and of proving all of the requirements in the Costle, 590 F.2d 1011, 1057–58 (DC Cir. maintained can sometimes fail and that affirmative defense, appropriate 1978) (holding that an informal such failure can sometimes cause an penalties may be assessed in accordance approach is adequate). The affirmative exceedance of the relevant emission with Section 113 of the Clean Air Act defense provisions give the EPA the standard. (See, e.g., State (see also 40 CFR 22.27). flexibility to both ensure that its Implementation Plans: Policy Regarding The EPA included an affirmative emission limitations are ‘‘continuous’’ Excessive Emissions During defense in the final rule in an attempt as required by 42 U.S.C. section 7602(k), Malfunctions, Startup, and Shutdown to balance a tension, inherent in many and account for unplanned upsets and (Sept. 20, 1999); Policy on Excess types of air regulation, to ensure thus support the reasonableness of the Emissions During Startup, Shutdown, adequate compliance while standard as a whole. Maintenance, and Malfunctions (Feb. simultaneously recognizing that despite C. What are the effective and 15, 1983)). The EPA is therefore adding the most diligent of efforts, emission compliance dates of the standards? to the final rule an affirmative defense limits may be exceeded under to civil penalties for exceedances of circumstances beyond the control of the The revisions to the MACT standards emission limits that are caused by source. The EPA must establish being promulgated in this action are malfunctions. See 40 CFR 63.1542 emission standards that ‘‘limit the effective on November 15, 2011. For the Primary Lead Processing (defining quantity, rate, or concentration of MACT standards being addressed in this ‘‘affirmative defense’’ to mean, in the emissions of air pollutants on a action, the compliance date for the context of an enforcement proceeding, a continuous basis.’’ 42 U.S.C. 7602(k) revised SSM requirements is the response or defense put forward by a (defining ‘‘emission limitation and effective date of the standards, defendant, regarding which the emission standard’’). See generally November 15, 2011. The compliance defendant has the burden of proof, and Sierra Club v. EPA, 551 F.3d 1019, 1021 date for the revised emission standard the merits of which are independently (DC Cir. 2008) Thus, the EPA is required in section 16.1543(a) is January 17, and objectively evaluated in a judicial to ensure that section 112 emissions 2012. The compliance date for the or administrative proceeding.). We also limitations are continuous. The revised requirements in section 16.1544 have added other regulatory provisions affirmative defense for malfunction is February 13, 2012. The compliance to specify the elements that are events meets this requirement by date for the new refining and furnace necessary to establish this affirmative ensuring that even where there is a area stack emission limit is 2 years from defense; the source must prove by a malfunction, the emission limitation is the effective date of the standard, preponderance of the evidence that it still enforceable through injunctive November 15, 2013. has met all of the elements set forth in relief. While ‘‘continuous’’ limitations, 63.1551 Primary Lead Processing. (See on the one hand, are required, there is IV. Summary of Significant Changes 40 CFR 22.24). The criteria ensure that also caselaw indicating that in many Since Proposal the affirmative defense is available only situations it is appropriate for the EPA A. Changes to the Risk Assessment where the event that causes an to account for the practical realities of Performed Under Section 112(f) of the exceedance of the emission limit meets technology. For example, in Essex Clean Air Act the narrow definition of malfunction in Chemical v. Ruckelshaus, 486 F.2d 427, 40 CFR 63.2 (sudden, infrequent, not 433 (DC Cir. 1973), the DC Circuit As noted above, in February of 2011 reasonable preventable and not caused acknowledged that in setting standards EPA published the notice of proposed by poor maintenance and or careless under CAA section 111 ‘‘variant rulemaking: National Emission operation). For example, to successfully provisions’’ such as provisions allowing Standards for Hazardous Air Pollutants: assert the affirmative defense, the source for upsets during startup, shutdown and Primary Lead Smelting. In the proposed must prove by a preponderance of the equipment malfunction ‘‘appear rulemaking, EPA presented a number of evidence that excess emissions ‘‘[w]ere necessary to preserve the reasonableness options for additional controls on the caused by a sudden, infrequent, and of the standards as a whole and that the primary lead smelting source category, unavoidable failure of air pollution record does not support the ‘never to be which currently includes only one control and monitoring equipment, exceeded’ standard currently in force.’’ facility operating in the United States. process equipment, or a process to See also, Portland Cement Association In the proposed rule, EPA solicited operate in a normal or usual manner v. Ruckelshaus, 486 F.2d 375 (DC Cir. comment on these options as well as on * * *.’’ The criteria also are designed to 1973). Though intervening caselaw such all the analyses and data the options ensure that steps are taken to correct the as Sierra Club v. EPA and the CAA 1977 were based upon, including the risk malfunction, to minimize emissions in amendments undermine the relevance methods and results presented in the accordance with section 63.1543(i) and of these cases today, they support EPA’s draft document: Draft Residual Risk

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Assessment for the Primary Lead risk results are presented in the report: people may be exposed to lead Smelting Source Category. ‘‘Residual Risk Assessment for the concentrations above the NAAQS. During the public comment period for Primary Lead Smelting Source Results indicate that emissions from the the proposed rule, the one facility in the Category’’ which is available in the refining stacks and furnace area stacks source category, The Doe Run Company, docket for this rulemaking. In addition, can likely result in exceedences of the submitted substantially updated a discussion of the updated emissions NAAQS for lead beyond the fenceline of emissions, meteorological, facility information used in the final risk the facility.3 These results also indicate boundary, as well as other relevant assessment can be found in the that fugitive dust emissions could result information bearing on the risk Technical Support Document for the in exposures approximately equal to the assessment (see docket number: EPA– final rule, which can also be found in level of the NAAQS at the location of HQ–OAR–2004–0305 for Doe Run’s the docket for this rulemaking. maximum impact. The results also public comments). As a result, to Table 3 presents the results of the indicate that emissions from the main support this final rulemaking EPA final baseline risk assessment, with stack do not likely result in exceedences revised its analyses to reflect the respect to the risks due to lead of the NAAQS for lead beyond the information received during the public emissions, broken down by emission fenceline of the facility because comment period for the proposed rule. point. In the baseline scenario, we emissions are highly dispersed due to Revised methods, model inputs, and estimate that approximately 1,550 the height of the main stack.

TABLE 3—SUMMARY OF LEAD CONCENTRATIONS RELATIVE TO THE NAAQS BASED ON ESTIMATED ACTUAL 2009 EMISSIONS

2009 Emissions 3 Emission point (tpy) Offsite impact

Main stack 1 ...... 68.3 0.9 times the NAAQS. Refining stacks 2 ...... 9.1 8 times the NAAQS. Furnace area stack: (Controlled blast and drossing fugitives) ...... 2.5 2 times the NAAQS. Fugitive dust ...... 1.0 1 times the NAAQS. 1 Results presented for the main stack in this table consider the good engineering practice (GEP) stack height of 330 feet (as was done in the SIP and in modeling submitted by the Doe Run Company in its public comments on the proposed rulemaking). The actual height of the main stack is approximately 550 feet, and thus the impact would likely be lower had actual stack height been modeled. 2 Emission sources controlled by baghouses 8 and 9 at the Doe Run facility. 3 For a given emission point, the model receptor location with the highest modeled 3-month ambient lead concentration was determined. This highest 3-month ambient lead concentration was then divided by the NAAQS (0.15 μg/m3) for lead to determine the maximum offsite impact for a given emission point.

Consistent with the risk assessment to the EPA is promulgating a combined has adopted sufficient work practice support the proposed rulemaking, the lead emission limit for the furnace area standards to ensure fugitive emissions risk assessment to support the final and refining operations stacks at 1.2 do not cause exceedances of the NAAQS rulemaking also indicates that risks are tons per year.4 In addition, the risk is not necessary. unacceptable. This decision considers assessment projected ambient lead In addition to the updated lead risk all the risk estimates presented in the concentrations from fugitive dust assessment results presented above, we risk assessment document, but is emissions to be very close to the also note that there were changes to our primarily based on lead emissions from NAAQS for lead at the location of cancer, acute, and PB–HAP the furnace area stack and the refining maximum impact; thus with respect to multipathway screening analyses for operations stacks. We note that while fugitive dust emissions, since only non-lead HAP as a result of the new risk the risk assessment supporting the minimal (if any) reductions beyond analysis performed for the final rule. proposed rulemaking estimated that a those already in place are needed to With respect to our updated cancer risk combined emission limit for the furnace ensure lead levels in the air do not assessment, we estimate that the area and refining operations should be exceed the NAAQS, the EPA believes maximum individual risk (MIR) of set at 0.91 tons of lead per year to that the work practice standards being cancer is 20 in a million (as compared ensure that risks are acceptable, the promulgated in this rule, which are to 30 in a million based on the risk updated risk assessment estimates that a more stringent than currently required assessment to support the proposed combined emission limit of 1.2 tons of by the 1999 NESHAP, will ensure an rule), and that the cancer incidence is lead per year will ensure that ambient acceptable level of risk. 0.008, or 1 excess cancer case every 125 lead concentrations from those emission Moreover, since this NESHAP years (as compared to 0.0008 based on points do not result in lead levels in the includes work practice standards to the risk assessment to support the ambient air above the level of the minimize fugitive dust emissions, and proposed rule). In addition, the refined NAAQS for lead, thereby resulting in since ambient monitoring for lead is worst-case acute hazard quotient (HQ) acceptable lead risk. In our ample already conducted very close to this value is 2.0 (based on the REL for margin of safety analysis, we identified facility and in the local community to arsenic), driven by arsenic emissions no cost-effective controls that are demonstrate whether the area is from the main stack (as compared to 0.6 capable of achieving emission levels attaining the lead NAAQS, we have based on the REL for arsenic and driven below 1.2 tons per year, as described in decided that fenceline monitoring to by arsenic fugitive dust emissions as the technical support document. Thus, specifically demonstrate that the source indicated by the risk assessment to

3 For the reasons noted in the proposed 4 EPA notes that it is setting a combined emission rulemakings, these sources have overlapping points rulemaking, 76 FR at 9421, we used the level of the limit for these sources because, as noted in the of maximum lead impact. lead NAAQS as the level above which we think an proposal (76 FR 9432), and the risk assessment unacceptable risk is presented to the public. documents to support the proposed and final

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support the proposed rule). Finally, implementation of the controls required main stack as demonstrated by the 2009 while the worst-case multipathway by this rule, risks will be acceptable, and 2008 stack tests and considered an screen to support the proposed rule considering the combination of estimate of emission variability in order indicated that no non-lead PB–HAP potential multipathway risks, cancer to determine whether it was appropriate exceeded screening levels for potential risks, chronic non-cancer risks, and to revise the emission limit based on multipathway effects, in the risk acute non-cancer risks. We also what the source was able to achieve in assessment to support the final reviewed whether there were cost- practice. Based on the revised analysis, rulemaking, the worst-case effective controls that could further we are promulgating an emission limit multipathway screening level was reduce risks as part of our ample margin for the main stack of 0.97 pounds of exceeded with respect to cadmium of safety analysis. The controls we are lead per ton of lead produced. emissions. This is the result of the requiring to address lead emissions also We have also changed the compliance revised emissions information provided reduce emissions of non-lead HAP. We date for the main stack to reflect by the company during the comment were unable to identify any technically compliance ‘‘as expeditiously as period, which indicated higher feasible cost effective additional possible’’ under section 112(i)(3) of the cadmium emissions from the main stack controls that would further reduce CAA. The compliance date for the 0.97 than were assumed for purposes of the emissions of lead and non-lead HAP. lb/ton limit is 60 days from the date of risk assessment performed for the We are therefore determining that the publication of the final rule. proposed rule. standards we are promulgating today C. Other Changes Since Proposal In considering the updated non-lead provide an ample margin of safety to risk results presented above, we note protect public health. The EPA has decided not to include that while cancer incidence increased in In summary, the final rule includes an the refining and furnace area emissions our updated risk assessment, cancer emission standard of 1.2 tons per year as part of a facility wide emission limit incidence remains very low with 1 of lead emissions from refining and as was proposed. We received excess cancer case being estimated furnace area stacks, combined. The comments from Doe Run on the every 125 years. standard also includes a requirement for proposed rule that inclusion of these With respect to the worst-case acute the facility to employ work practice sources in the production based HQ value of 2 based on the REL for standards to minimize fugitive dust emission limit in section 63.1543(a) was arsenic due to emissions from the main emissions, including cleaning plant not necessary and that these sources stack, we note that this is a roadways, stabilization of material would simultaneously be required to conservative, worst-case analysis of the during storage and handling, and comply with the standard for refining potential for acute health effects. We ensuring that doorways to process areas and furnace area emissions proposed also note that in contrast to the risk remain closed. In summary, we under section 112(f) and the production analysis to support the proposed conclude that these standards being based limit proposed under section rulemaking, the final risk analysis promulgated today will ensure risks are 112(d)(6). We agree with the modeled the main stack at the good acceptable and public health is commenters and we are establishing a engineering practice (GEP) stack height protected with an ample margin of separate emission limit of 1.2 tons per of 330 feet rather than the actual stack safety and that there will not be an year of lead emissions that applies to height of 550 feet. Thus it is very likely adverse environmental effect from HAP the combined emissions of the refining that the maximum potential worst-case emissions from the one lead processing and furnace area stacks. The emission HQ value is significantly lower than 2. facility in this source category. standard limits the combined emissions Finally, with respect to the from these two stacks because the exceedence of the worst-case B. Changes to the Technology Review revised risk assessment indicated that multipathway screening level for Performed Under Section 112(d)(6) of the location of maximum impact for cadmium, we note that this only the Clean Air Act these two stacks overlapped at the same indicates the potential for cadmium In the proposed rule, the main stack receptor. A production based emission exposures above the chronic noncancer was subject to an emission limit of 0.22 limit will continue to apply to sources reference dose (RfD) for cadmium. That pounds of lead per ton of lead produced in section 63.1543(a)(1)–(9). is, while in general, emission rates based on our section 112(d)(6) As mentioned earlier, we are not below the worst-case multipathway technology review. That proposed limit finalizing a requirement for fenceline screening level indicate no significant was based on information that indicated monitoring to ensure that fugitive dust potential for multipathway related the source had significantly lower emissions do not cause an exceedance health effects, emission levels above this emissions than the emission limit of 1 of the NAAQS offsite. The revised worst-case screening level only indicate pound of lead per ton of lead produced modeling showed substantially lower the potential for multipathway-related (lb/ton) required in the 1999 MACT ambient concentrations due to fugitive health risks of concern based on a standard. However, in comments dust emissions relative to the modeling worst-case scenario. We were not able to received on the proposed rule, The Doe performed for the proposed rule. We refine our multi-pathway analysis Run Company indicated that the estimate current fugitive dust emissions beyond the worst-case screening proposed emission limit of 0.22 lb/ton result in maximum lead levels offsite assessment. As a result, based on worst under Section 112(d)(6) could not be that are approximately equal to the case screening, we cannot state whether met and that the data on which that NAAQS. We are promulgating work or not there are going to be emission limit was based were not practice standards beyond what is multipathway risks at true exposure accurate. The facility provided a 2009 required by the 1999 rule that must be levels, we can only say that worst case stack emissions test for the main stack implemented by the source in order to modeling suggests there could be that indicated that emissions at the ensure that fugitive emissions will not potential risks. However, due to the facility are significantly higher than we result in an exceedance of the NAAQS highly conservative nature of this assumed as the basis for the proposed and thus result in an unacceptable risk. screening assessment and the limit. For purposes of our analysis for We expect that after implementation of uncertainties related to the results, we the final rule, the EPA recalculated the this revised NESHAP, fugitive dust have concluded that, after emissions performance achieved for the emissions from primary lead processing

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facilities will not result in exposures establish an affirmative defense for compliance period has serious adverse levels above the NAAQS. Since the risk malfunctions. economic effects on the company and levels are much lower than we had We received written comments from the new hydrometallurgical process can estimated at proposal, and since we are 16 commenters. Our responses to some be considered an alternative means of promulgating specific work practice of the significant public comments are emission limitation. requirements to minimize fugitive dust provided below. Responses to the The commenter also stated that the emissions, we have determined that the comments that are not in the preamble circumstances of this case present a proposed fenceline monitoring have been placed in the docket. See unique challenge in determining an requirement is not necessary to show Summary of Public Comments and appropriate compliance deadline for a compliance with this NESHAP. Responses for Primary Lead Processing new primary lead smelting MACT Furthermore, there are already several NESHAP (October 2011), for summaries standard. The commenter stated that monitors nearby that measure ambient of other comments and our responses to there were several differences from the lead levels and that should provide them. typical MACT rulemaking: Instead of multiple sources within a category, sufficient indication of whether fugitive A. Timeline for Compliance lead emissions have been sufficiently there is only one facility in the category; reduced. Comment: Two commenters opposed by virtue of a federally enforceable In recent rules promulgated under the compliance timing and supported consent decree, the facility must section 112 and 129, the EPA has extending the compliance date beyond terminate its present operations by April revised certain terms and conditions of two years for several reasons. One 30, 2014; and assuming a final rule the affirmative defense in response to commenter stated that according to the issues on October 31, 2011, and a two- concerns raised by various commenters. time line in the proposed rule, the year compliance deadline, the The EPA is adopting those same facility will operate in its current form compliance period would be at most six revisions in this rule. Specifically, the for only a few months after the months prior to stoppage of many of the EPA is revising the affirmative defense compliance date of the rule. This creates current operations. If forced to achieve language to delete ‘‘short’’ from a dilemma for the State and facility in compliance that would last only for 63.1551(a)(1)(i), because other criteria in terms of implementation, planning, such a short period, the facility would the affirmative defense require that the resources and compliance. The face severe economic hardship that source assure that the duration of the commenter suggested that the could jeopardize its ability to finance excess emissions ‘‘were minimized to implementation and attainment and to build a new hydrometallurgical the maximum extent practicable.’’ The schedules for this MACT rule should lead production process that would EPA is also deleting the term ‘‘severe’’ correspond to those of the 2008 largely eliminate lead emissions. These in the phrase ‘‘severe personal injury’’ NAAQS. circumstances raise questions as to the in 63.1551(a)(4) because we do not think One commenter identified three legal necessity as well as the feasibility it is appropriate to make the affirmative provisions they suggest could be used to and practicality of implementing a two- defense available only when bypass was allow more than 2 years for compliance: year compliance deadline. unavoidable to prevent severe personal (1) 112(i)(3)(A) establishes 3 years for Further, it was incorrectly assumed injury. In addition, the EPA is revising compliance for section 112 standards, that a two-year compliance period is 63.1551(a)(6) to add ‘‘consistent with (2) 112(i)(5) allows exemption for up to consistent with the schedule of required good air pollution control practice for 6 years for facilities demonstrating 90 actions contained in the Consent minimizing emissions.’’ The EPA is also percent reduction in HAP prior to first Decree, when the opposite is true. revising the language of 63.1551(a)(9) to proposal of a section 112(d) standard, Requiring MACT standard compliance clarify that the purpose of the root cause and (3) 112(h)(3) allows an alternative six months before the required analysis is to determine, correct, and means of compliance in some termination of Doe Run’s existing lead eliminate the primary cause of the circumstances. The commenter stated smelting seriously erodes several malfunction. The root cause analysis that the import of the underlying Consent Decree goals: Introducing a itself does not necessarily require that statutory authority relates to the new hydrometallurgical lead production the cause be determined, corrected or compliance period for existing sources. process that minimizes lead emissions, eliminated. However, in most cases, the Under the EPA practice, a three-year assuring continued primary lead EPA believes that a properly conducted compliance period applies to section production in the United States, and root cause analysis will have such 112(d) MACT standards, while a two- promoting the development of the most results. In addition, the EPA is revising year period applies to section 112(f) technologically advanced lead 63.1551(b) to state that a written report standards. Although the EPA seems to production process in the world. must be submitted within 45 days of the have reflexively applied the section Finally, the commenter stated that the initial occurrence of the malfunction 112(f) period, this approach is not primary lead RTR proposal effectively and that the source may seek an foreordained in the present accelerates the compliance date for the extension of up to an additional 30 circumstances. Specifically, section lead NAAQS for the Doe Run facility. days. 112(i)(3)(A), which allows a three-year According to the commenter a two-year compliance period for any section 112 compliance timeframe relies, in part, on V. Summary of Significant Comments standard, merits consideration in light the various steps that must be and Responses of the various proposed MACT undertaken to implement a plan to In the proposed action, we requested standards, including a plant-wide monitor lead concentration in air. But public comments on all aspects of the section 112(d)(6) standard. With regard this reliance is also misplaced because proposal, including our residual risk to the authority under section 112(i)(5), it requires Doe Run to comply with the reviews and resulting proposed the commenter states that emissions new Lead NAAQS in 2013, or more than standards, our technology reviews and have been reduced from 140 tons in the two years before the Lead NAAQS itself resulting proposed standard, and our year 2000 to less than 14 tons in 2009, requires compliance. No statutory proposed amendments to delete the representing a decrease of over 90%. authority supports such accelerated startup and shutdown exemptions and With regard to section 112(h)(3), the compliance for the lead NAAQS or the malfunction exemption and to commenter believes that the two year preemption of the SIP process. In short,

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the two-year timeframe rests on faulty in the case of HAPs that are particulate section 112(f) is two years. The grounds: Factually, it is inconsistent matter) prior to the proposal of the commenter submits no facts or with the Consent Decree requirements, section 112(d) standard. Thus, this information that supports a legal basis and legally, it unlawfully attempts to provision does not apply to the for providing a longer period for speed up the previously-established standards established under 112(f) in compliance for the refining and furnace compliance timeframe for the lead this final rule. With regard to the area stack limits and for the work NAAQS. emission standard proposed for the practice standards to minimize fugitive Response: Section 112(i)(3) main stack, stack test data indicate that dust emissions. establishes the compliance timeframe the main stack emissions are Finally, we note that the Lead for any standard issued under section substantially higher than the 14 tons per NAAQS does not apply to a specific 112 for existing sources and provides year value cited by the commenter. facility but rather is a level that must be that the compliance date shall be as Based on performance test data, the met within the designated expeditiously as practicable but no later facility has not achieved the reductions nonattainment area. However, we than 3 years following the effective date in emissions required to apply the recognize that Doe Run is the only of the standard. Section 112(f)(4), alternative compliance dates in section stationary industrial source creating the however, expressly provides more 112(i)(5). Jefferson County lead nonattainment specific requirements for standards Section 112(h)(3) allows the area and the reductions required under issued under section 112(f) and thus for Administrator through notice and the rule will help bring the area into section 112(f) standards those more comment rulemaking to accept an attainment with the lead NAAQS. prescriptive requirements govern in alternative means of emission limit in However, this regulation does not place of the compliance requirements in place of a work practice standard preempt the SIP process; the State of section 112(i)(3). Specifically, section established under 112(h)(1) if the owner Missouri is still required to submit a 112(f)(4) provides that a source cannot or operator of a source establishes that state implementation plan emit an air pollutant in violation of a such alternative means will achieve demonstrating how the area will attain standard issued under subsection (f) reductions at least equivalent to those and maintain the lead NAAQS. In doing except that the standard will not apply that would be achieved by the work so, the State may rely on any reductions until 90 days after its effective date. It practice standard. It is unclear precisely required under this regulation. Finally, also provides that the Administrator what the commenter is suggesting with we note that this regulation does not may grant a waiver for a period of up regard to this provision. However, it ‘‘speed up’’ the compliance timeframe to 2 years from the effective date if seems they may be suggesting that the for meeting the Lead NAAQS. The CAA necessary for the installation of controls new hydrometallurgical process that requires areas to attain the various and if measures will be taken in the they plan to install after they close the NAAQS as expeditiously as practicable, interim to ensure public health is pyrometallurgical processes should be but no later than specified dates. For the protected from imminent endangerment. considered an alternative means of 2008 lead NAAQS, areas are required to Thus, for standards applicable to the compliance with the work practice attain the standard as expeditiously as furnace and refinery area emissions and standard. It is unclear how this process practicable, but no later than December the work practice standards to address would address the emissions covered by 31, 2015. The Act not only contemplates fugitive emissions, which were issued the work practice standards we are but requires, if practicable, for areas to under section 112(f), the compliance establishing which are intended to attain the 2008 lead NAAQS earlier than period may not exceed two years from address current fugitive dust emissions December 31, 2015. the effective date of the standard. We from the facility. Those emissions are Additionally, we are not requiring are providing 90 days for compliance almost exclusively from lead entrenched fenceline monitoring as part of the final with the work practice standards and in open areas and the installation of a NESHAP amendments. Therefore, the two years for compliance with the new process for lead processing would commenter’s concerns related to standards applicable to the furnace and not appear to affect those emissions. potential conflict between monitoring refinery area stacks. Moreover, we understand that the new for the NAAQS and this NESHAP are no The main stack emission limit, hydrometallurgical process won’t be longer relevant. proposed under 112(d)(6), is subject to operational until sometime after the Comment: One commenter stated that the section 112(i)(3) compliance compliance date for the work practice the proposed emission standards and provisions. We are establishing an standards we are requiring. Thus, even ambient standard had negative emission standard of 0.97 lb Pb/ton of if that process would address in whole implications for determining lead produced that would replace the or in part the fugitive dust emissions compliance under the proposed two- existing standard of 1 lb Pb/ton of lead addressed through the work practice year compliance period and the produced. This standard is based on the standards, it would not be an ‘‘plantwide reductions’’ that are level of emissions that the source is appropriate substitute in the absence of ‘‘required under section 112(f)(2).’’ 76 already achieving in practice and thus being able to achieve the necessary FR at 9437/1. According to the no additional controls would be needed reductions within the compliance commenter, the only plant-wide to meet that emission limit for the main period. We note that our determination reduction proposed in the rule is the stack. For that reason, we are requiring here does not preclude Doe Run from plant wide limit of 0.22 pounds per ton compliance with the new limit for the submitting additional information that produced while the other two new main stack within 60 days of the may further support a demonstration numerical standards are the 0.91 tpy effective date of this final rule as this under section 112(h)(3) and for which limit for furnace area and refining and timeframe constitutes compliance ‘‘as we could take further action in a casting operations and the 0.15 mg/m3 expeditiously as practicable.’’ separate rulemaking. limit for ambient lead concentrations. Concerning section 112(i)(5), the As to the concerns the commenter The commenter stated that the three provision only applies to standards raises about this situation being unique, proposed numerical standards present a promulgated pursuant to section 112(d) we do not disagree. However, the statute confusing regulatory regime as to which (and not 112(f)) and also only where a is clear that the maximum compliance standard ultimately controls for source achieves a 90% reduction (95% period for standards issued pursuant to determining compliance. If, for

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example, Doe Run achieves an aggregate • The opening phrase of the first New Lead Technology submitted to the emission of 0.22 lb/ton on a facility sentence ‘‘The Primary Lead Smelting Missouri Department of Natural wide basis but exceeds 0.91 tpy for its source category,’’ describes and limits Resources. furnace and refining and casting ‘‘any facility’’ to mean those involving Response: Section 112(c)(1) describes operations, would it be in compliance? smelting; and the ‘‘includes, but is not the process for creating the source Of the three numerical standards, the limited to’’ language does not apply to category list. To the extent that the commenter stated that only the 0.91 tpy any lead producing process, but only to commenter is concerned that the source limit can arguably be linked to Section ‘‘the following smelting processes.’’ category listing for primary lead was not • 112(f), and even that is unclear. The The list of processes identified all issued consistent with the requirements 0.91 tpy standard is derived from the involve pyrometallurgical activities: of section 112(c)(1), such claim is Lead NAAQS risk analysis. Despite this Sintering process, blast furnace, electric untimely. We disagree with the starting point, this standard is smelting furnace, reverberatory furnace, commenter that the source category subsumed in the proposed 0.22 lb/ton slag fuming furnace, drossing kettles, description must be read to be limited and dross reverberatory furnace. to pyrometallurgical processes. The plant-wide limit which arose under the • section 112(d)(6) technology review, The plain meaning of that language source category description was adjusted for ‘‘variability in the evidences intent to cover any and all intended to include all processes used operations and emissions.’’ While an types of pyrometallurgical processes for to produce lead metal from ore effort is made to differentiate the producing lead but shows no attempt to concentrates, as evidenced by the first components of the 0.22 lb/ton standard encompass other, as yet unknown, lead sentence of the category description. as to which portion fits under what production processes. While it is true that at the time of the • Isolating the phrase ‘‘including, not statutory authority, this single plant- source category listing, the limited to’’ from the company it keeps wide emission standard rests on the hydrometallurgical process described by to justify an expansive reading goes well section 112(d)(6) review. Although not the commenter did not exist, the beyond the meaning of the listing as a explicitly stated, this plant-wide language left open the possibility that whole and thus cannot stand. other lead metal production processes standard offers more than an ample The commenter also stated that the margin of safety. might be developed in the future and proposed change in applicability is would be covered under the source Response: We have decided not to inconsistent with the statutory structure category listing. include a facility-wide limit that would for formulating source categories: ‘‘To Although, the source category name include the refining and furnace area the extent practicable, the categories in the 1999 NESHAP was ‘‘primary lead stacks as well as to the main stack. and subcategories listed under this smelting’’ rather than ‘‘primary lead Instead, the 1.2 tpy emissions standard subsection shall be consistent with the processing,’’ it was given that title we are promulgating under section list of source categories established because, at that time smelting was the 112(f) will apply to combined emissions pursuant to section 7411 of this title and only technology used to process lead ore from the refining and furnace area part C of this subchapter.’’ The into lead metal. However, the three- stacks. The 0.97 lb/ton emission commenter cited several instances in word title should not be read as limiting standard that we are promulgating the statute where Primary Lead the broader language in the description pursuant to section 112(d)(6) will Smelting is referred to as a of the source category, which provides replace the 1.0 lb/ton limit in the pyrometallurgical process. In the full evidence of EPA’s intent of what original MACT rule and will apply to summation, the commenter states that should be included in the source the same sources subject to the limit in the statutory directive of CAA section category. the original MACT rule. Additionally, 112(c)(1) to assure consistency between Recently, during the development of we have eliminated the fenceline a source category definition and how this RTR rulemaking, we became aware monitoring requirement from the final the same terms are used in other parts of a new primary lead processing and rule. These changes should alleviate the of the Act demonstrates that the production technology (i.e., regulatory confusion that could arise statutory and regulatory use of ‘‘primary hydrometallurgical process). It is our over the limits in the proposal. lead smelting’’ and ‘‘primary lead understanding that even after this new Furthermore, we believe a plant-wide smelter’’ was consistently designed to technology is in place, the facility plans limit is not necessary to address the cover only pyrometallurgical processes. to continue operating some of the same residual risk and technology review The EPA’s assertion that the originally thermal processes in use now and requirements of the Act. As provided in formulated primary lead smelting subject to the NESHAP (such as refining the preamble to the proposed and final source category has a ‘‘broader and casting) which continue to have the rules, we evaluated each of the emission definition’’ is inconsistent with the potential to emit significant amounts of stacks separately to determine whether original source category language and lead. We also note that this facility will additional controls are necessary under the pyro-oriented definitions applied to continue to have the potential for section 112(f) or 112(d)(6) and a plant- primary lead smelting/smelter found fugitive emissions. For these reasons, wide limit is not needed under either of throughout the statute and regulations. we conclude that it is appropriate and those statutory requirements. The commenter also stated that the necessary to update the title for the EPA’s effort to recast the primary lead MACT standard and the applicability B. The EPA’s Authority Under Section smelting category is barred by the section of the standard, consistent with 112 of the Clean Air Act failure to show a major source would be the description of the listed source Comment: One commenter stated that present. The new hydrometallurgical category, to ensure these emissions the modification to the applicability process bears no resemblance to the points continue to be subject to provision does not comport with how current pyrometallurgical process, other emissions standards. However, it is also smelting is defined and used and that than feedstock and end product. The important to note that the rule being the source category listing was intended new process will have drastically promulgated today has no requirements to cover smelting only, not other reduced lead emissions and is presented that apply to the hydrometallurgical processes. The commenter lists several as a minor source in the Doe Run Air processes themselves, since this process issues supporting this position: Construction Permit Application for the currently does not exist at this facility.

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As noted in the response to comments, exercised that authority here by chapter.’’ The language can only be if a new process such as the establishing emission limitations for reasonably read to allow a standard hydrometallurgical process is developed activities previously only subject to applicable to emissions from specific and put into use in the future, then EPA work practice requirements. The source(s). The lead (or any other) would consider what standards to commenter’s arguments to the contrary NAAQS, by definition, is not targeted to propose for such process after such notwithstanding, the revised specific source(s), but applies generally process is operational. applicability definition will result in a to the national ambient air. See, e.g., We believe section 112(d)(1) provides source category containing a major CAA section 109(a)(1)(A) (‘‘regulations the authority for this revision to the source, the Doe Run facility. Doe Run is prescribing a national primary ambient standard. That provision requires EPA currently a major source of lead air quality standard * * * for each air to ‘‘promulgate regulations establishing emissions and will be a major source of pollutant’’). emission standards for each category or such emissions on the date by which it The commenters stated that the subcategory of major sources and area must initially comply with the newly contrasting language highlights that the sources’’ of the hazardous air pollutants established emission limits for refining lead NAAQS does not qualify as an listed in section 112(b)(1). Because activities. Thus, regardless of the level emission standard within the meaning EPA’s initial promulgation of the MACT of its emissions following conversion to of section 112. The NAAQS addresses standard did not fully describe the the hydrometallurgical process, Doe ambient air rather than emissions from source category, and thus did not Run must meet the newly established a source, and as a result the NAAQS regulate all potential sources within the emission limits by the specified date(s). does not put any limits on the quantity, source category, we believe it is now As noted elsewhere, a new rate, or concentration of emissions from appropriate to revise the applicability hydrometallurgical process is not a particular source or on its operation, provision to fully cover the sources as subject to an emission limit under the maintenance, design, or work practices, provided under the source category existing MACT standard as it now exists all of which are central to the section listing. or following the changes resulting from 112(f)(2) mandate or on the practices, Comment: A commenter stated that this rulemaking; we would consider an processes, and control technologies the proposed rule does not suggest that appropriate emission limit for the related to sources central to section the new lead production processes hydrometallurgical process once that 112(d)(6). Further, a NAAQS limits should be listed as area sources. If the process is a demonstrated technology. ambient air lead without regard to EPA could make the necessary ‘‘adverse Comment: Another commenter stated source category or types of sources, effects finding’’ for including a that the EPA appropriately proposes to while the MACT standards are hydrometallurgical lead production update the applicability of the MACT to particularized to control emissions at process as an area source, a separate cover Doe Run’s new type of facility. specific sources. Thus, the primary lead NESHAP would be required for a new Response: We agree with this smelting emission standards differ from area source. The EPA lacks authority to comment. the secondary lead smelting emission subsume a new area source into the Comment: Two commenters stated standards, but the same lead ambient air Primary Lead Smelting major source that the EPA cannot use section 112(f) standards apply throughout the country category, as it would require in the authority to establish an ambient air without regard to such distinctions. In proposed rule. Therefore, the EPA must standard because this type of standard short, the lead NAAQS does not fit the show that either Doe Run’s new lead is not an ‘‘emission standard.’’ meaning of ‘‘emission standard’’ as used production process or the entire Doe The commenters stated that the in section 112 and therefore cannot be Run facility after the new process is NAAQS does not fit within the meaning properly used as the MACT standard operational would or could emit more of ‘‘emission standard’’ as used in CAA here. than 10 tpy of lead if the facility is to sections 112(d)(6) or (f)(2), the EPA’s One commenter stated further that remain a major source category and the stated authority for the proposed rule. this error is not cured by the wording of proposed rule offers no documented Section 112(f)(2) is entitled ‘‘Emission proposed section 63.1544(a), which evidence that Doe Run’s standards’’ and the second sentence, states: ‘‘No owner * * * shall discharge hydrometallurgical lead production where the ‘‘ample margin of safety’’ or cause to be discharged into the process or the Herculaneum facility factor is found, has ‘‘emission standard’’ atmosphere lead compounds that cause after the new process becomes as its subject; these specific references the concentration of lead in air to operational would constitute a major clarify the use of ‘‘standards’’ elsewhere exceed 0.15 mg/m3 on a 3-month rolling source. The commenter contended that in the subsection means ‘‘emission average measured at locations approved neither the new process nor the entire standard.’’ Likewise, section 112(d)(6) by the Administrator.’’ As such, Herculaneum facility would be a major gives the Administrator authority to proposed section 63.1544(a) measures source. Plant-wide emissions at Doe revise ‘‘emission standards.’’ Both ambient air levels for compliance Run’s facility after the new process subsections limit the EPA’s rule- (‘‘concentration of lead in air * * * at becomes operational are estimated to promulgating authority to setting locations’’) in what appears to match the approximate 0.65 tpy. Absent the ‘‘emission standards.’’ source monitoring of ambient air presence of a major source at Doe Run’s According to commenters, Congress required for the Lead NAAQS. See 73 facility, the new lead production defined ‘‘emission standard’’ in CAA FR at 67052, section 50.16(a) and at process cannot be treated as a major section 302(k) to ‘‘mean a requirement 67059, section 58.10; see also 76 FR at source category. established by the * * * Administrator 9436/1 (proposing that compliance ‘‘be Response: As explained in detail which limits the quantity, rate or demonstrated using a compliance elsewhere, the EPA has the authority to concentration of emissions of air monitoring system’’). As such, proposed impose additional requirements on pollutants on a continuous basis, section 63.1544(a) does not limit the emission points already subject to an including any requirement relating to quantity, rate, or concentration of emission standard and to impose the operation or maintenance of a emissions from a specified source or requirements on previously unregulated source * * * and any design, take into account developments in emission points in performing a risk and equipment, work practice or operational practices, processes, and control technology review. The EPA has standard promulgated under this technologies. Compare 40 CFR

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63.1544(a)(2010) (requiring ‘‘manual rationale for the proposed rule and the provide any data to refute this. Thus, we that describes in detail the measures basis for the proposed requirements. disagree with the commenter that we are that will be put in place to control (See 76 FR 9412–9414 for a discussion attempting to regulate in contravention fugitive dust emissions from the of the statutory authority underlying the of section 112(b)(7) in this action. sources’’). Measuring ambient air at proposed revisions to the standard.) The National Lime opinion cited by locations presumably near the source With regard to fugitive dust emissions, the commenters addressed a different does not fall within the standards we are establishing a requirement for issue than the one being at issue here. allowed by CAA section 112, and, in work practice standards consistent with In that case, the issue was whether the any event, is redundant to the same section 112(h)(1) in lieu of an emission EPA could use a NAAQS pollutant monitoring and limitations already standard because these fugitive dust (particulate matter) as a surrogate for established under the Lead NAAQS. emissions, which are predominantly HAP metal emissions. While certain Consequently, the proposed rule from materials handling and roadways HAP listed in 112(b)(1) are considered exceeds the statutory authority granted cannot be captured and vented to a particulate matter, ‘‘particulate matter’’ by section 112, and therefore cannot be stack for which we could establish an is not listed on the 112(b)(1) list. In that adopted. emission limit. case, the court rejected the argument by One commenter stated that the Comment: One commenter stated that the National Lime Association that the proposal requests comments on a work the CAA limits the EPA’s ability to EPA was regulating particulate matter practices standard operating procedure regulate pollutants subject to NAAQS ‘‘through the back door.’’ In the present (SOP) alternative to ambient air (‘‘criteria pollutants’’) to that regime and situation, the EPA is not regulating lead monitoring. As opposed to using the does not allow supplemental (or ‘‘through the back door’’ in this Lead NAAQS, which is not an emission supplanting) regulation of them under rulemaking. standard under Section 112, the NESHAP. The commenter cited CAA Comment: One commenter stated that alternative SOP proposal is consistent section 112(b)(2) that states in relevant the EPA unlawfully refused to set a with the MACT directive that emission part: ‘‘No air pollutant which is listed standard for organic HAP. According to reductions be tied to specific sources. under section 7408(a) of this title may the commenter, the EPA must set an One commenter stated that the be added to the list under this section’’ emission standard for the organic HAP proposed ambient lead standard is with certain exceptions not relevant listed on the section 112(b)(1) list that procedurally flawed because the EPA here. Section 7408(a) provides the this source category emits. Specifically, fails to explain the legal basis for statutory authority for setting NAAQS. the commenter argues that: imposing such a standard under section Also, CAA section 112(b)(7) removes 112(f). The agency’s legal authority is of elemental lead from consideration as a ‘‘[w]hen EPA performs a section 112(d)(6) central relevance to this aspect of the HAP. According to the commenter, the review, it must consider the ongoing legality proposal and the failure to clearly and effectiveness of the existing standard. prohibition is not only clear, but also Explicitly, in the current rulemaking EPA describe the legal basis for the standard expansive: The statute ‘‘unqualifiedly must ‘‘review, and revise as necessary’’ the violates the EPA’s obligation under prohibits listing a criteria pollutant as a existing MACT standard. 42 U.S.C. section section 307(d)(3)(C) to set forth the HAP, that is, regardless of the reason.’’ 7412(d)(6). It is clearly ‘‘necessary’’ for EPA ‘‘major legal interpretations’’ that Nat’l Lime Ass’n v. EPA, 233 F.3d 625, to close inherently unlawful gaps in the underlie the proposal. 638 (DC Cir. 2000). original MACT, by setting a standard for an Response: The commenters mistake Response: As we recognized in the uncontrolled HAP. Indeed, EPA has the purpose of the fenceline monitoring preamble to the proposed rule, under recognized the need and done this during its requirement in the proposed rule. The section 112(b)(7) elemental lead may not section 112(d)(6) review in its recent proposed rule established emissions be listed as a HAP under section 112 rulemaking for Marine Tank Vessel Loading standards from the main, furnace area, and the references to ‘‘lead’’ in the Operations and Group I Polymers and Resins and refinery operations stacks and where it proposed a standard for previously proposed rule referred to ‘‘lead uncontrolled subcategories of these sources. further provided that fugitive dust compounds’’ which are expressly listed See Proposed Rule, 75 Fed. Reg. 65068, emissions would need to be addressed as a HAP in CAA section 112(b)(1). 76 65115, 65106 (Oct. 21, 2010). EPA has no by work practice standards (as is FR 9412. Because lead compounds are legal basis for failing to set a MACT standard allowed under section 112(h)(1)). a listed HAP, we are required to regulate now for the uncontrolled HAPs for the Finally, we proposed a fenceline them under section 112, as we did when primary lead source category.’’ monitoring requirement to ensure that we established the original MACT Response: We disagree with the the work practice standards adequately standard for primary lead in 1999. 64 FR commenter that section 112(d)(6) address fugitive dust emissions 30194. The lead emitted from primary mandates that the EPA must correct any consistent with the requirements of lead processing is lead compounds with deficiency in an underlying MACT section 112(f). However, we have elemental lead present only in trace standard when it conducts the 5 eliminated the fenceline monitoring amounts. The commenter did not ‘‘technology review’’ under that section. requirement in the final rule. Instead, We believe that section 112 does not we are specifying work practice 5 Harrison, R.M. and Williams, C.R. (1981). Environmental Science and Technology, Vol. 15:10, expressly address this issue, and the standards to minimize fugitive dust EPA has discretion in determining how emissions. Because we are not requiring p. 1197–1204.; Ohmsen, G.S. (2001). Journal of the Air and Waste Management Association, Vol. 51, p. to address a purported flaw in a fenceline monitoring in this final rule, 1443–1451.; Uzu, G., Sobanska, S., Sarret, G., promulgated standard. The ‘‘as ` the commenter’s concerns related to Sauvain, J.J., Pradere, P., and Dumat, C. (2011). necessary’’ language cited by the redundant monitoring requirements Journal of Hazardous Materials, Vol. 186, p. 1018– 1027.; Spear, T.M., Svee, W., Vincent, J.H., and need not be addressed. Stanisich, N. (1998). Environmental Health (1983). The Science of the Total Environment, Vol. We disagree with the suggestion that Perspectives, Vol. 106:9, p. 565–571.; Czaplicka, M., 31, p. 129–140.; Batonneau, Y., Bremard, C., we do not provide the legal basis for our and Buzek, 4. (2011). Water, Air, & Soil Pollution, Gengembre, L., Laureyns, J., Maguer, A.L., Maguer, proposed rule. The preamble clearly Vol. 218, p. 157–163.; Sobanska, S., Ricq, N., D.L., Perdrix, E., and Sobanska, S. (2004). Laboudigue, A., Guillermo, R., Bre´mard, C., Environmental Science and Technology, Vol. 38, p. explains that we are addressing residual Laureyns, J., Merlin, J.C., Wignacourt, J.P. (1999). 5281–5289.; Foster, R.L. and Lott, P.F. (1980). risk for this source category under Environmental Science and Technology, Vol. 33, p. Environmental Science and Technology, Vol. 14:10, section 112(f) and clearly explains the 1334–1339.; Harrison, R.M. and Williams, C.R. p. 1240–1244.

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commenter must be read in the context stated that the EPA’s Science Advisory source category (i.e., those emissions of the provision, which focuses on the Board (SAB) in May 2010 urged the EPA that can actually be affected by the review of developments that have to use the RTR rulemaking process to do specific rulemaking) and supplements occurred since the time of the original this as well as perform a sensitivity that with additional information about promulgation of the MACT standard analysis to identify the major other possible concurrent and relevant and thus should not be read as a uncertainties in both the human health risks that is readily available. In some mandate to correct flaws that existed at and ecological risk assessments. cases, we have additional information the time of the original promulgation. In According to the commenter, the SAB about HAP emissions that are outside several recent rulemakings, we have and numerous other scientific experts the scope of the particular rulemaking chosen to fix underlying defects in have developed, and are in the process but within the boundaries of the subject existing MACT standards under sections of developing, cutting edge methods to facilities. In other cases, we may have 112(d)(2) and (3), the provisions that perform these assessments and that the ambient HAP monitoring data that can directly govern the initial promulgation EPA, as the lead environmental agency be considered as part of the regulatory of MACT standards (see National of the United States, has a responsibility decision-making. In still other cases, we Emission Standards for Hazardous Air to show leadership in this process. It may have very little additional risk Pollutants From Petroleum Refineries, should rely on the significant information that can be considered. In October 28, 2009, 74 FR 55670; and information already available and also all cases, however, when we consider National Emission Standards for use the current and future RTR additional information about risks, we Hazardous Air Pollutants: Group I rulemakings to further advance this also consider its attendant uncertainties, Polymers and Resins; Marine Tank process. and information which carries Vessel Loading Operations; The commenter stated that it could be significant uncertainties generally Pharmaceuticals Production; and the done on a site-specific basis or for the carries much less weight in the overall Printing and Publishing Industry, April industry as a whole. Uncertainty in regulatory decision. 21, 2011, 76 FR 22566). (We note that estimates of HAP in ambient air has All of the quantitative risk assessment the commenter incorrectly states that we been characterized, so the data available information about HAP emissions from revised those standards under from the National-Scale Air Toxics the source category under consideration 112(d)(6)). We believe that our approach Assessments (NATA) would allow a is also considered in the manner is reasonable because using those defensible estimate of what might be prescribed by the decision framework provisions ensures that the process and expected from other sources. set forth by the CAA for residual risk considerations are those associated with Response: We disagree with the decision-making (i.e., the Benzene initially establishing a MACT standard, commenter that our risk assessments do decision framework), and this means and it is reasonable to make corrections not consider cumulative risk. We note that the general guidelines of risk following the process that would have that our assessment of cancer risks is, in acceptability have been developed in a been followed if we had not made an fact, cumulative, summing the risks way that they already take into account error at the time of the original associated with all carcinogens emitted the impossibility of accurately promulgation. by the facility. Similarly, the use of the quantifying the health risks posed by Nevertheless, based on our review of target organ specific hazard index outside forces on every individual in the the commenter’s 2009 petition and their (TOSHI) for chronic non-cancer effects population. They do this by noting that additional comments on this proposed evaluates the cumulative effects of HAP the guidelines apply in ‘‘the world in rulemaking, we agree that the Primary on a given target organ. Further, our which we live,’’ a world which is Lead Smelting NESHAP should have assessment for Primary Lead Processing acknowledged to be ‘‘not risk-free,’’ but included an emission standard for is cumulative in that it considers all rather a world which is full of risks, organic HAP. We have evaluated emission points within the fenceline many of which can simply not be available data and believe that we need (since they are all covered by the quantified. This acknowledgment additional data in order to set an MACT). Moreover, the level of the lead allows the EPA to make risk-based emission standard for organic HAP that NAAQS, which we used as the metric decisions by focusing on the risks is representative of current operations for defining unacceptable risk, was set associated with the emissions that are and emissions. We intend to collect the based on all air-related exposures in its themselves the subject of regulation needed data and propose a MACT derivation and thus is also a cumulative being considered, and not get distracted emission standard under section standard. We note that for the present by the daunting task of assessing all the 112(d)(2) and (3) of the CAA. rulemaking, our consideration of other concurrent potential risks that Accordingly, we are not taking final cumulative risks for the Doe Run facility may or may not be relevant and can’t be action on the 2009 petition with respect is the same as that for the industry as impacted by the regulation in question to the issue of setting a standard or a whole since Doe Run is the only anyway. standards for organic HAP and will facility within the source category. Comment: Two commenters took address that petition once we have We further disagree with the issue with the modeling methodology gathered the necessary data. commenter’s assertion that a used for the RTR proposal and disagreed comprehensive quantitative assessment with the risk results based on a number C. Primary Lead Processing Risk of risks from all sources outside the of concerns. Assessment source category is required under the One commenter stated that the RTR Comment: One commenter stated that statute. If such were in fact the case, the modeling characterized the maximum the EPA failed to consider or account for task of completing such a requirement air lead concentrations near the facility cumulative risk and that there is no would take an interminable length of to be fifty times the 2008 NAAQS which rational or scientific basis to dismiss time. Instead, to provide the is inconsistent with both recent air consideration of the cumulative risk of quantitative risk information necessary quality monitoring data and Missouri’s exposures to HAPs due to uncertainties. to inform RTR regulatory decisions, the 2007 attainment demonstration The commenter urged that these EPA conducts a comprehensive modeling and stated that the proposed uncertainties require protective action assessment of the risks associated with RTR modeling overestimated the rather than inaction. The commenter exposure to the HAPs emitted by the maximum air lead concentration by at

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least a factor of five. The commenter the model and assessment of the maximum non-adverse facility-level stated that the inaccuracies of the EPA’s proposed RTR could not be made. The emissions rate for all ages, which cannot proposed modeling analysis will be in commenter identified several specific be done on the basis of a risk assessment conflict with future baseline and modeling parameters and data elements that studied children only. attainment demonstration modeling that were not correctly applied during Response: The lead NAAQS was a based on more accurate data, especially the proposal modeling run which could public health policy judgment since the RTR proposes to correlate the have significantly affected the results considering the available health MACT standard with the 2008 NAAQS. including model control options, run evidence and risk analyses as well as The commenter recommended that the script parameters, volume sources the uncertainties associated with the EPA remodel this facility using higher modeled as point sources, inaccurate health evidence and risk analyses. We quality input data that are more fenceline/boundary locations, incorrect disagree with the commenter that the representative of current operations at elevations for sources and receptors, lead NAAQS cannot be used in a the Herculaneum facility, to obtain and old census data information for quantitative manner. The review of the results that better reflect the actual receptor centroids. lead NAAQS clearly resulted in a monitored 3-month lead concentrations. Response: Because of the availability quantitative standard: 3-month Alternately, the commenter stated that of newer emissions data, more detailed maximum lead concentration not to the EPA should either defer to site-specific meteorological data, as well exceed a level of 0.15 mg/m3. This appropriate air quality monitoring as updated facility boundary and other standard was set to protect public information or to the modeling run used information provided by Doe Run in health, including the health of sensitive for the 2007 SIP revision attainment comments on the proposed rule, we populations, with an adequate margin of demonstration as the basis for this RTR. have remodeled the facility with these safety. As the commenter notes, the lead Some commenters also suggested using newer data. We remodeled using NAAQS applies in all areas of the AERMOD modeling followed by AERMOD in the default mode to United States and is meant to protect LEADPOST, rather than using HEM–3 to estimate monthly lead concentrations, the public health with an adequate ultimately calculate 3-month rolling and we used the building and particle margin of safety regardless of the age of average lead concentrations. data submitted by one commenter to the individuals living in a particular Two commenters identified specific model building downwash and plume area. issues with regard to the modeling depletion. We used the LEADPOST Comment: One commenter stated that approach and input data including: processor to calculate 3-month rolling rather than finalizing this proposal as it • The ratio of modeled results to averages. In addition, using the updated stands, the best available science directs monitored data should not exceed a facility boundary information, the EPA the EPA to set a residual risk standard factor of two. The commenter provided also removed census blocks that would that incorporates protective health specific corrections and analysis of data. now be considered onsite. The methods benchmarks and assures that children • The NAAQS attainment and results of this modeling effort can living near the facility will not face an demonstration model developed by the be found in the document: Residual unacceptable neurological effect, such State of Missouri and the RTR modeling, Risk Assessment for the Primary Lead as the loss of IQ points. This includes although conducted for different Smelting Source Category, which is protecting children against a blood lead purposes, are both based on compliance available in the docket for this level change of 1.0 mg/dL or more, a with the same standard for the same rulemaking. The EPA notes that the benchmark used by California for the geographic location. Therefore, the results of this modeling effort are blood lead level change that is output of both dispersion models, similar to results submitted by the Doe associated with a child’s loss of one IQ whether for residual risk assessment or Run Company to the State as part of a point. Because there is no safe level of SIP development, should reflect the SIP (this Doe Run modeling effort was lead exposure and because lead persists maximum ambient air lead also submitted to the EPA as part of its in the environment, resulting in concentration. The commenter stated public comments). Moreover, the EPA reservoirs in soils and dusts, the EPA that any data limitations should be notes that a comparison of modeled lead has an obligation to control emissions addressed with input from the concentrations at the sites of six lead from this source category promptly and commenter. monitors are within 50 percent of in a precautionary manner. The • Improvements from the 2007 SIP for measured concentrations at those commenter stated that the EPA should the fugitive emissions from the sinter monitors. These results are similar to a consider requiring zero lead emissions. plant and blast furnace building do not model-to-monitor comparison submitted At a minimum, the EPA should set a appear to be reflected in the run script by Doe Run in its public comments. standard that would ensure that the of the model, resulting in concentrations We note that the docket included all ambient air concentration for lead in the up to fifty times the NAAQS. The of the input files and documentation local community does not exceed the commenter stated that actual monitoring needed to reproduce the modeling that level of 0.02 mg/m3 as a one-month data from 2010 show a maximum three- was performed for the proposal risk average, in order to protect children. As month average ambient air assessment. this is the level the Children’s Health concentration of 1.12 mg/m3 at the Main Comment: With respect to using the Protection Advisory Committee had Street site. This actual monitored value NAAQS to evaluate potential recommended for the lead NAAQS, the is in line with the MDNR modeled multipathway risks from lead, one EPA must also set additional protections estimate from the 2007 SIP revision and commenter stated that the risk beyond this ambient air limit in order to is recommended to be the basis for the assessment used to set the NAAQS was provide an ‘‘ample margin of safety.’’ risk assessment. based on quantitative studies of young Response: In order to assess • The EPA did not provide a children and that while ‘‘the Lead multipathway risks associated with modeling protocol for their dispersion NAAQS obviously applies to all ages, emissions of lead, the EPA compared modeling, or all of the modeling inputs, that was a qualitative risk management modeled rolling three month average post processing and other data in the decision made as a matter of policy’’ lead concentrations estimated from docket for public review. Therefore, a and that ‘‘the task at hand is to provide emissions from the one source in this complete, replicable public review of a quantitative risk assessment of the category to the NAAQS for lead. As

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noted above, we believe that this is a to an acceptable level and ensure an acceptable, under the two-step residual reasonable approach given that the ample margin of safety from non-lead risk decision process, the EPA then NAAQS is a health based standard set emissions. considered whether there were to protect the public health, including Response: With respect to cancer risk, additional controls that might further the health of sensitive sub-populations section 112 provides for EPA to follow reduce risk to achieve an ample margin (such as children) with an adequate the benzene decision framework for of safety considering cost and margin of safety. Moreover, the risk determining acceptability. Under that feasibility. We did not identify any assessment supporting the NAAQS framework, cancer risk less than 100 in additional cost-effective controls considered direct inhalation exposures a million is generally considered beyond those that would need to be and indirect air-related multi-pathway acceptable, although this is not a bright implemented to ensure an acceptable exposures from industrial sources like line and EPA examines a variety of level of risk. Thus, with regard to the primary and secondary lead smelting health factors to make its determination. two stack emissions points (the furnace operations. We conclude that the level Once we concluded that the risk from area stack and the refinery stacks) for of the NAAQS presents an acceptable non-lead HAP was acceptable, we then which we are requiring action to ensure level of risk from lead in ambient air. considered whether there were an acceptable level of risk, and for Moreover, we are promulgating additional cost-effective controls that fugitive dust emissions, for which we emissions limits (for the furnace area would further reduce risk from the other are specifying work practice standards, and refining operation stacks) to reduce HAP emitted in order to provide an we have concluded that there are no emissions and promulgating specific ample margin of safety. Because the additional cost-effective controls and work practice standards to minimize controls for other HAP were the same as that an ample margin of safety will be fugitive emissions to ensure that the controls for lead, we determined (for provided by the same controls that emissions do not result in exceedances the same reason we did for lead) that ensure an acceptable level of risk. of the NAAQS. As part of our ‘‘ample there were no additional cost effective Moreover, there are no additional cost margin of safety’’ analysis, we examined controls and that the acceptable level of effective controls to further reduce whether there were additional cost HAP emissions also provided an ample emissions from the main stack beyond effective controls available to further margin of safety. those controls that are already applied. reduce emissions and risks. As Comment: One commenter stated that Therefore, an ample margin of safety explained elsewhere in this notice and they oppose the use of the lead NAAQS will be provided by the current level of in other supporting documents available assessment instead of a multi-pathway control for the main stack. A more in the docket, we have not identified risk assessment because the lead detailed presentation of the economic any additional cost effective controls to NAAQS provides an inappropriate level analysis of additional controls for the reduce emissions further and provide of protection, i.e., the lead NAAQS refining, furnace area, and main stacks requires an adequate margin of safety further risk reductions. can be found in the technical support With respect to the California while a residual risk standard requires document, which is available in the benchmark for protecting children, the an ample margin of safety. The docket. EPA has a hierarchy of appropriate commenter stated that a residual risk Comment: One commenter stated that health benchmark values. In general, standard should provide a level of the EPA has not appropriately this hierarchy places greater weight on protection that is higher than the accounted for or prevented EPA derived health benchmarks than NAAQS. Moreover, the commenter environmental risks from lead or non- those from other agencies (http:// noted that the NAAQS is set to protect lead emissions as required by section sensitive populations while residual www.epa.gov/ttn/atw/nata1999/99pdfs/ 112(f)(2)(A). According to the risk rules are set to protect the greatest healtheffectsinfo.pdf). For the reasons commenter, using the NAAQS to assess number of individuals possible from provided above, we believe that the lead ecological risk is problematic and EPA’s unacceptable risk. The proposed rule NAAQS level establishes an appropriate approach of assuming that ‘‘when based on the lead NAAQS will not benchmark for addressing the exposure levels are not anticipated to provide as high a level of protection as acceptable level of risk and we disagree adversely affect human health, they also required by CAA section 112(f)(2). with the commenter that we should are not anticipated to adversely affect Response: We disagree with the the environment,’’ 76 FR at 9425, is instead use an ambient concentration of commenter that the lead NAAQS 3 illogical and unlawful. Further, based 0.02 mg/m based on a one month assessment should not be considered as 6 on the information the EPA has gathered average. part of our residual risk analysis Comment: With regard to the source about the local environment around the because it provides an inappropriate Doe Run facility, the EPA cannot category’s emissions of two dozen other level of protection. The lead NAAQS is hazardous air pollutants, including assume that there would be no effects set at a level to protect public health, either to wildlife or to natural resources cadmium and arsenic, one commenter including the health of sensitive in the environment either from stated that the EPA should determine populations, most critical for lead, the inhalation or air deposition of HAP that this health risk is also health of children. That does not suggest emissions, exacerbated by persistence unacceptable. With thousands of people that non-sensitive populations are not and bioaccumulation. As the EPA’s own exposed to a lifetime risk of cancer protected, but rather that the NAAQS is Scientific Advisory Board has stated: above 1 in a million, and with at least set at a level that will not only protect ‘‘The assumption that ecological 200 exposed to a lifetime risk of up to the general population but also those receptors will be protected if human 30 in a million, the EPA must recognize who are more sensitive to lead health is protected is incorrect.’’ SAB that this risk is too high for this local exposures. In the proposed rule, the May 2010 at 48. community. The EPA should set a level of the NAAQS, which protects Response: The EPA is unaware of any standard that would reduce cancer risks public health with an adequate margin data indicating a direct atmospheric of safety, was used to determine impact of non-lead HAP emitted from 6 This level is well below the background ambient lead levels measured in the area during the SIP whether or not there was unacceptable this source category on receptors such process. See docket ID EPA–HQ–OAR–2006–0735– risk. Once we determined a level of as plants, birds, and wildlife. Given that 5204. emissions that results in risks being there is no information supporting that

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there is an effect, we find it appropriate does not support a conclusion that there neurological effects, particularly to assume that exposure levels not are adverse environmental effects below neurobehavioral and neurocognitive expected to harm humans are also not that level that must be addressed as part effects, in children (73 FR 67007). In expected to harm ecological receptors. of this residual risk determination. As developing the NAAQS for lead, Although the ecological effects of lead we have noted previously, there are not because of the multi-pathway, multi- are well documented, there was a lack sufficient data supporting that a lower media impacts of lead, the risk of evidence at the time of the last lead level is necessary to protect against an assessment supporting the NAAQS NAAQS review linking various environmental risk. considered direct inhalation exposures ecological effects to specific levels of Comment: One commenter stated that and indirect air-related multi-pathway lead in the air. It was determined that in evaluating potential multipathway exposures from industrial sources like the evidence did not provide a sufficient risks from PB–HAP other than lead, the primary and secondary lead smelting basis for establishing a separate EPA used de minimis emission rates to operations. It also considered secondary standard, but that revising screen for potentially significant multi- background lead exposures from other the secondary standard to be equal to pathway impacts, but for lead, this sources (like contaminated drinking the revised primary standard would method was abandoned. The commenter water and exposure to lead-based provide substantial additional disagrees with this approach, stating, paints). The EPA believes that the lead protection to ecological receptors from ‘‘This comparison mirrors NAAQS NAAQS is a reasonable benchmark to the effects of lead. Thus, we find it source monitoring for attainment evaluate the potential for multipathway appropriate to consider the secondary purposes in its use of the national health effects from lead. lead NAAQS when evaluating the ambient air lead level as the benchmark. Finally, as noted in the risk potential for adverse environmental As such, it is not a proper surrogate for assessment document, there is no RfD or effects. ‘‘facility-level de minimis emission other comparable chronic health Comment: One commenter generally rates’’ used as the chronic reference benchmark value for lead compounds. stated that the EPA must not use the benchmarks for CAA section 112 risk That is, in 1988, the EPA’s IRIS program secondary NAAQS as a benchmark to assessments.’’ reviewed the health effects data determine whether there will be Response: The EPA disagrees that regarding lead and its inorganic environmental effects and that the use comparing modeled 3-month rolling compounds and determined that it of the lead NAAQS to evaluate ecologic average lead concentrations to the would be inappropriate to develop an risks is inappropriate. The commenter NAAQS for lead mirrors source RfD for these compounds, saying, ‘‘A states that the EPA should recognize monitoring for NAAQS attainment great deal of information on the health that the establishment of the Secondary purposes and that this approach is not effects of lead has been obtained lead NAAQS at the same level of the a proper surrogate for facility-level de through decades of medical observation Primary Lead NAAQS was a risk minimis emission rates used as the and scientific research. This information management decision, rather than a chronic reference benchmarks for CAA has been assessed in the development of decision quantitatively founded in risk section 112 risk assessments. In general, air and water quality criteria by the assessment. The commenter cited that determining attainment for the lead Agency’s Office of Health and in establishing the lead NAAQS, the NAAQS is based on aggregate ambient Environmental Assessment (OHEA) in EPA introduced its approach by monitoring of all potential sources of support of regulatory decision-making describing the ‘‘substantial limitations lead in a given area. In contrast, the by the Office of Air Quality Planning in the evidence, especially the lack of Primary Lead Smelting Risk Assessment and Standards (OAQPS) and by the evidence linking various effects to and Preamble clearly state that 3-month Office of Drinking Water (ODW). By specific levels of ambient Pb’’ (U.S. rolling average lead concentrations are comparison to most other EPA, 2008. P. 67007), and ultimately based on modeled lead concentrations environmental toxicants, the degree of concluded that the secondary lead from lead emissions from the one uncertainty about the health effects of NAAQS should be set equal to the facility in the source category. 76 FR lead is quite low. It appears that some primary lead NAAQS. 9421. Thus, for example, while for of these effects, particularly changes in In contrast, in this proposed rule, the NAAQS attainment purposes ambient the levels of certain blood enzymes and EPA concludes that ‘‘ambient lead lead concentrations resulting from lead in aspects of children’s neurobehavioral concentrations above the lead NAAQS haul roads outside the facility boundary development, may occur at blood lead indicates potential for adverse would contribute to the overall 3-month levels so low as to be essentially environmental effects’’ (76 FR 9421). rolling average ambient lead without a threshold. The agency’s RfD Response: The secondary lead concentration measured at a nearby Work Group discussed inorganic lead NAAQS was set to protect against ambient lead monitor, for purposes of (and lead compounds) at two meetings adverse welfare effects (including the risk assessment to support this (07/08/1985 and 07/22/1985) and adverse environmental effects) and has rulemaking, these types of offsite considered it inappropriate to develop the same averaging time, form, and level emission sources were not included an RfD for inorganic lead.’’ The EPA’s as the primary standard. Thus, we find when modeling 3-month rolling lead IRIS assessment for Lead and it appropriate to consider the secondary concentrations (i.e., only emission compounds (inorganic) (CASRN 7439– lead NAAQS when considering the sources from within the facility 92–1), http://www.epa.gov/iris/subst/ potential for adverse environmental boundary were used as inputs into the 0277.htm. effects. The commenter is correct that dispersion model to estimate resulting Comment: One commenter stated that we stated in the proposed rule that modeled 3-month average lead the EPA must include a plain language ‘‘ambient lead concentrations above the concentrations). statement of health risks and benefits of lead NAAQS indicates potential for The NAAQS for lead was set to the proposed rule. As part of its adverse environmental effects.’’ This protect, with an adequate margin of rulemaking proposal, the EPA should statement is entirely consistent with the safety, human health, including the include a plain statement of the health idea that the secondary lead NAAQS health of children and other at-risk impacts and risks at issue. For example, was set at a level above which there may populations, against an array of adverse the commenter stated that the MIR and be adverse environmental effects but health effects, most notably including chronic and risk numbers are not easily

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understandable by the general public; to achieve acceptable risks will also this action to the Office of Management the IQ point losses at stake or how it is provide an ample margin of safety. and Budget (OMB) for review under setting a standard to address these are With regard to discussing specific Executive Order 12866 and Executive not discussed, and the types of cancer types of cancers potentially associated Order 13563 (76 FR 3821, January 21, or the nature of the health disorders or with exposure to a given HAP, we note 2011), and any changes made in other adverse effects that most of these that the cancer unit risk estimates used response to OMB recommendations types of HAP emissions present to the in the risk assessment are not associated have been documented in the docket for public are not discussed. The with specific types of cancers, but rather this action. commenter stated that this type of with the risk of cancer in general. B. Paperwork Reduction Act ‘‘[e]xpanded discussion is important to Moreover, since many of the cancer understanding the ‘real-world’ risk, studies the unit risk estimates take into The Office of Management and Budget including dealing with health account are animal studies, there is (OMB) has approved the information disparities.’’ SAB May 2010 at 50. appreciable uncertainty as to whether collection requirements contained in A full elaboration of the types of the same types of cancers would be seen this rule under the provisions of the health impacts at issue here, ranging in humans. Thus, we find it appropriate Paperwork Reduction Act, 44 U.S.C. from significant IQ loss (due to lead to express the results of our cancer 3501 et seq. and has assigned OMB emissions), to a high lifetime cancer risk assessment in terms of general cancer control number 2060–0414. The information requirements are (from non-lead emissions), for this risk. based on notification, recordkeeping, particular community, is needed to VI. Impacts of the Final Rule and reporting requirements in the inform the EPA’s and the public’s NESHAP General Provisions (40 CFR consideration of what level of risk is The revisions to the Primary Lead Processing MACT standard will ensure part 63, subpart A), which are acceptable or unacceptable, and what mandatory for all operators subject to standard is required to provide an that emissions from the one source in this source category do not present an national emission standards. These ample margin of safety. recordkeeping and reporting Response: The EPA strives to unacceptable level of risk and will also provide an ample margin of safety. The requirements are specifically authorized communicate its health and risk by section 114 of the CAA (42 U.S.C. information to the public in a manner estimated reductions include as much as 10 tons per year of lead from the 7414). All information submitted to the that is concise, informative, and readily EPA pursuant to the recordkeeping and understandable. In the risk assessment furnace area and refining operations stacks. We also expect reductions will reporting requirements for which a document, we discuss the various claim of confidentiality is made is metrics used to characterize risk be achieved with the additional work practices, but we have not been able to safeguarded according to agency associated with the source category (e.g., policies set forth in 40 CFR part 2, see section 2.3 of the risk assessment quantify those reductions. These controls and work practices will also subpart B. document for a discussion of the MIR). This final rule includes new reduce emissions of other HAP emitted Moreover, while the commenter is paperwork requirements for increased from the facility. The costs of these correct that we do not discuss in detail frequency for stack testing as described controls and work practices were not the neurological effects associated with in 40 CFR 63.1546. exposure to lead (e.g., loss of IQ points directly considered in the decision When a malfunction occurs, sources in children), we do reference the final because these controls and practices are must report the event according to the lead NAAQS decision, which does necessary to ensure that risks are applicable reporting requirements of 40 discuss in detail the health effects acceptable. The EPA evaluated control CFR part 63, subpart TTT. An associated with lead exposure. With practices and technology and associated affirmative defense to civil penalties for regard to how the proposed controls costs in determining that the same exceedances of emission limits that are limit the health risks associated with requirements needed to achieve caused by malfunctions is available to a lead exposure, we noted in the preamble acceptable risks would also provide an source if it can demonstrate that certain of the proposed rule that the proposed ample margin of safety. In addition, we criteria and requirements are satisfied. controls would ensure that the facility’s considered other available practices, The criteria ensure that the affirmative contribution to ambient concentrations processes and control technologies. For defense is available only where the of lead were at or below the NAAQS for the same reason we concluded that no event that causes an exceedance of the lead and that this represents an additional controls were necessary to emission limit meets the narrow acceptable level of risk since the lead provide an ample margin of safety, we definition of malfunction in 40 CFR 63.2 NAAQS was set to protect public health, concluded that there were no additional (sudden, infrequent, not reasonably including the health of sensitive cost effective developments in practices, preventable, and not caused by poor populations (e.g., children), from the processes or control technologies for maintenance and or careless operation) adverse health effects associated with any sources other than the main stack. and where the source took necessary lead exposure. Moreover, although the VII. Statutory and Executive Order actions to minimize emissions. In requirements that we are promulgating Reviews addition, the source must meet certain in today’s action are somewhat different notification and reporting requirements. than the proposed requirements, we A. Executive Order 12866: Regulatory For example, the source must prepare a believe that the requirements that we Planning and Review, and Executive written root cause analysis and submit are promulgating will also ensure that Order 13563: Improving Regulation and a written report to the Administrator the facility’s contribution to ambient Regulatory Review documenting that it has met the concentrations of lead will not present Under Executive Order 12866 (58 FR conditions and requirements for an unacceptable level of risk. In 51735, October 4, 1993), this action is a assertion of the affirmative defense. addition, as discussed previously, we ‘‘significant regulatory action.’’ This The EPA is adding affirmative defense have not identified any additional cost- action is a significant regulatory action to the estimate of burden in the ICR. To effective controls and we therefore because it raises novel legal and policy provide the public with an estimate of conclude that the same level of controls issues. Accordingly, the EPA submitted the relative magnitude of the burden

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associated with an assertion of the EPA ICR number 1856.08. Burden requirements on small entities. The affirmative defense position adopted by changes associated with these costs associated with the new a source, the EPA has provided amendments result from the reporting requirements in these final rules are not administrative adjustments to the ICR and recordkeeping requirements of the expected to present an undue burden to that show what the notification, affirmative defense provisions added to this industry as discussed above. recordkeeping, and reporting the rule. The change in respondents’ requirements associated with the annual reporting and recordkeeping D. Unfunded Mandates Reform Act assertion of the affirmative defense burden associated with these This action contains no Federal might entail. The EPA’s estimate for the amendments for this collection mandates under the provisions of Title required notification, reports, and (averaged over the first 3 years after the II of the Unfunded Mandates Reform records, including the root cause effective date of the standards) is Act of 1995 (UMRA), 2 U.S.C. 1531– analysis, totals $3,141, and is based on estimated to be 30 labor hours at a cost 1538 for State, local, or tribal the time and effort required of a source of $3,141 per year for the affirmative governments or the private sector. The to review relevant data, interview plant defense reporting. There will be no action imposes no enforceable duty on employees, and document the events capital costs associated with the any State, local or tribal governments or surrounding a malfunction that has information collection requirements of the private sector. Therefore, this action caused an exceedance of an emission the final rule. There is no estimated is not subject to the requirements of limit. The estimate also includes time to change in annual burden to the Federal sections 202 or 205 of the UMRA. produce and retain the record and government for these amendments. These rules are also not subject to the reports for submission to the EPA. The Burden is defined at 5 CFR 1320.3(b). regulatory requirements that might EPA provides this illustrative estimate An agency may not conduct or significantly or uniquely affect small of this burden, because these costs are sponsor, and a person is not required to governments. They contain no only incurred if there has been a respond to, a collection of information requirements that apply to such violation, and a source chooses to take unless it displays a currently valid OMB governments or impose obligations advantage of the affirmative defense. control number. The OMB control upon them. Given the variety of circumstances numbers for EPA’s regulations in 40 under which malfunctions could occur, CFR are listed in 40 CFR part 9. In E. Executive Order 13132: Federalism as well as differences among sources’ addition, EPA is amending the table in This action does not have federalism operation and maintenance practices, 40 CFR part 9 of currently approved implications. It will not have substantial we cannot reliably predict the severity OMB control numbers for various direct effects on the States, on the and frequency of malfunction-related regulations to list the regulatory relationship between the national excess emissions events for a particular citations for the information government and the States, or on the source. It is important to note that the requirements contained in this final distribution of power and EPA has no basis currently for rule. responsibilities among the various estimating the number of malfunctions levels of government, as specified in C. Regulatory Flexibility Act that would qualify for an affirmative Executive Order 13132. These final defense. Current historical records The Regulatory Flexibility Act (RFA) rules primarily affect private industry, would be an inappropriate basis, as generally requires an agency to prepare and do not impose significant economic source owners or operators previously a regulatory flexibility analysis of any costs on State or local governments. operated their facilities in recognition rule subject to notice and comment Thus, Executive Order 13132 does not that they were exempt from the rulemaking requirements under the apply to this action. requirement to comply with emissions Administrative Procedure Act, or any F. Executive Order 13175: Consultation standards during malfunctions. Of the other statute, unless the agency certifies number of excess emission events that the rule will not have a significant and Coordination With Indian Tribal reported by source operators, only a economic impact on a substantial Governments small number would be expected to number of small entities. Small entities This action does not have tribal result from a malfunction (based on the include small businesses, small implications, as specified in Executive definition above), and only a subset of organizations, and small governmental Order 13175 (65 FR 67249, November 9, excess emissions caused by jurisdictions. 2000). It will not have substantial direct malfunctions would result in the source For purposes of assessing the impact effect on tribal governments, on the choosing to assert the affirmative of these final rules on small entities, relationship between the Federal defense. Thus, we believe the number of small entity is defined as: (1) A small government and Indian tribes, or on the instances in which source operators business as defined by the Small distribution of power and might be expected to avail themselves of Business Administration’s regulations at responsibilities between the Federal the affirmative defense will be 13 CFR 121.201; (2) a small government and Indian tribes, as extremely small. For this reason, we governmental jurisdiction that is a specified in Executive Order 13175. estimate no more than 2 or 3 such government of a city, county, town, Thus, Executive Order 13175 does not occurrences for all sources subject to 40 school district, or special district with a apply to this action. CFR part 63, subpart TTT over the population of less than 50,000; and (3) G. Executive Order 13045: Protection of 3-year period covered by this ICR. We a small organization that is any not-for- Children From Environmental Health expect to gather information on such profit enterprise which is independently events in the future, and will revise this owned and operated and is not Risks and Safety Risks estimate as better information becomes dominant in its field. This action is not subject to Executive available. After considering the economic Order 13045 (62 FR 19885, April 23, For the Primary Lead Processing impacts of these final rules on small 1997), because it is not economically MACT standard, the ICR document entities, I certify that this action will not significant as defined in Executive prepared by the EPA, which has been have a significant economic impact on Order 12866. However, the agency does revised to include the amendments to a substantial number of small entities. believe there is a disproportionate risk the standards, has been assigned the This final action will not impose any to children. Modeled ambient air lead

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concentrations from the one facility in as appropriate, disproportionately high Dated: November 4, 2011. this source category are in excess of the and adverse human health or Lisa P. Jackson, NAAQS for lead, which was set to environmental effects of their programs, Administrator. ‘‘provide increased protection for policies, and activities on minority For the reasons stated in the children and other at-risk populations populations and low-income preamble, the Environmental Protection against an array of adverse health populations in the United States. Agency amends title 40, chapter I, of the The EPA has determined that this effects, most notably including Code of Federal Regulations as follows: neurological effects in children, final rule will not have including neurocognitive and disproportionately high and adverse PART 63—[AMENDED] neurobehavioral effects.’’ 73 FR 67007. human health or environmental effects However, the control measures on minority or low-income populations, ■ 1. The authority citation for part 63 promulgated in this notice will result in because it does not decrease the level of continues to read as follows: lead concentration levels that are in protection provided to human health or Authority: 42 U.S.C. 7401, et seq. compliance with the lead NAAQS, the environment, but in fact decreases thereby mitigating the risk of adverse emissions of lead. To examine the Subpart TTT—[Amended] health effects to children. potential for any environmental justice issues that might be associated with this ■ 2. Section 63.1541 is revised to read H. Executive Order 13211: Actions rule, we evaluated the distributions of as follows: Concerning Regulations That HAP-related cancer and non-cancer § 63.1541 Applicability. Significantly Affect Energy Supply, risks across different social, Distribution, or Use demographic, and economic groups (a) The provisions of this subpart This action is not a ‘‘significant within the populations living near the apply to any facility engaged in energy action’’ as defined in Executive one facility that is currently operating in producing lead metal from ore Order 13211 (66 FR 28355 (May 22, this source category. Our analyses also concentrates. The category includes, but 2001)), because it is not likely to have show that, although there is potential is not limited to, the following smelting a significant adverse energy effect on the for an adverse environmental and processes: Sintering, reduction, supply, distribution, or use of energy. human health effects from emission of preliminary treatment, refining and This action will not create any new lead, it does not indicate any significant casting operations, process fugitive requirements for sources in the energy potential for disparate impacts to the sources, and fugitive dust sources. The supply, distribution, or use sectors. specific demographic groups analyzed. sinter process includes an updraft or Further, we have concluded that these The rule would require additional downdraft sintering machine. The final rules are not likely to have any control measures to address the reduction process includes the blast adverse energy effects. identified environmental and health furnace, electric smelting furnace with a risks and would therefore, decrease converter or reverberatory furnace, and I. National Technology Transfer and risks to any populations exposed to slag fuming furnace process units. The Advancement Act these sources. preliminary treatment process includes Section 12(d) of the National the drossing kettles and dross Technology Transfer and Advancement K. Congressional Review Act reverberatory furnace process units. The Act of 1995 (NTTAA), Public Law 104– The Congressional Review Act, 5 refining process includes the refinery 113, 12(d) (15 U.S.C. 272 note) directs U.S.C. 801, et seq., as added by the process unit. The provisions of this the EPA to use voluntary consensus Small Business Regulatory Enforcement subpart do not apply to secondary lead standards (VCS) in its regulatory Fairness Act of 1996, generally provides smelters, lead refiners, or lead remelters. activities, unless to do so would be that, before a rule may take effect, the (b) Table 1 of this subpart specifies inconsistent with applicable law or agency promulgating the rule must the provisions of subpart A of this part otherwise impractical. VCS are submit a rule report, which includes a that apply and those that do not apply technical standards (e.g., materials copy of the rule, to each House of the to owners and operators of primary lead specifications, test methods, sampling Congress and to the Comptroller General processors. procedures, and business practices) that of the United States. The EPA will ■ 3. Section 63.1542 is amended by are developed or adopted by VCS submit a report containing this final rule adding a definition for ‘‘Affirmative bodies. NTTAA directs the EPA to and other required information to the defense,’’ ‘‘Lead refiner,’’ ‘‘Lead provide Congress, through OMB, United States Senate, the United States remelter,’’ ‘‘Primary lead processor,’’ explanations when the agency decides House of Representatives, and the and ‘‘Secondary lead smelter;’’ not to use available and applicable VCS. Comptroller General of the United removing the definition of ‘‘Primary This action does not involve technical States prior to publication of the final lead smelter;’’ and revising the standards. Therefore, the EPA did not rule in the Federal Register. A major definitions of ’’Fugitive dust source,’’ consider the use of any VCS. rule cannot take effect until 60 days ‘‘Furnace area,’’ ‘‘Malfunction,’’ after it is published in the Federal J. Executive Order 12898: Federal ‘‘Materials storage and handling area,’’ Register. This action is not a ‘‘major Actions To Address Environmental ‘‘Plant roadway,’’ ‘‘Process fugitive rule’’ as defined by 5 U.S.C. 804(2). The Justice in Minority Populations and source,’’ ‘‘Refining and casting area,’’ final rules will be effective on Low-Income Populations ‘‘Sinter machine area,’’ and ‘‘Tapping November 15, 2011. location’’ to read as follows: Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal List of Subjects for 40 CFR Part 63 § 63.1542 Definitions. executive policy on environmental Environmental protection, * * * * * justice. Its main provision directs Administrative practice and procedures, Affirmative defense means, in the Federal agencies, to the greatest extent Air pollution control, Hazardous context of an enforcement proceeding, a practicable and permitted by law, to substances, Intergovernmental relations, response or defense put forward by a make environmental justice part of their Reporting and recordkeeping defendant, regarding which the mission by identifying and addressing, requirements. defendant has the burden of proof, and

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the merits of which are independently processing or refining but is not the and must be ventilated to a baghouse or and objectively evaluated in a judicial primary exhaust stream and is not a equivalent control device. The hood or administrative proceeding. fugitive dust source. Process fugitive design and ventilation rate must be * * * * * sources include sinter machine charging consistent with American Conference of Fugitive dust source means a locations, sinter machine discharge Governmental Industrial Hygienists stationary source of hazardous air locations, sinter crushing and sizing recommended practices. pollutant emissions at a primary lead equipment, furnace charging locations, (d) The sinter machine area must be processor resulting from the handling, furnace taps, and drossing kettle and enclosed in a building that is ventilated storage, transfer, or other management refining kettle charging or tapping to a baghouse or equivalent control of lead-bearing materials where the locations. device at a rate that maintains a positive source is not part of a specific process, Refining and casting area means any in-draft through any doorway opening. process vent, or stack. Fugitive dust area of a primary lead processor in (e) Except as provided in paragraph (f) sources include roadways, storage piles, which drossing or refining operations of this section, following the initial tests materials handling transfer points, and occur, or casting operations occur. to demonstrate compliance with materials transport areas. Secondary lead smelter means any paragraphs (a) and (b) of this section, Furnace area means any area of a facility at which lead-bearing scrap the owner or operator of a primary lead primary lead processor in which a blast material, primarily, but not limited to, processor must conduct compliance furnace or dross furnace is located. lead-acid batteries, is recycled into tests for lead compounds on a quarterly Lead refiner means any facility that elemental lead or lead alloys by basis (no later than 100 days following refines lead metal that is not located at smelting. any previous compliance test). a primary lead processor. * * * * * (f) If the 12 most recent compliance Lead remelter means any facility that Sinter machine area means any area tests demonstrate compliance with the remelts lead metal that is not located at of a primary lead processor where a emission limit specified in paragraphs a primary lead processor. sinter machine, or sinter crushing and (a) and (b) of this section, the owner or Malfunction means any sudden, sizing equipment is located. operator of a primary lead processor infrequent, and not reasonably * * * * * shall be allowed up to 12 calendar preventable failure of air pollution Tapping location means the opening months from the last compliance test to control and monitoring equipment, through which lead and slag are conduct the next compliance test for process equipment, or a process to removed from the furnace. lead compounds. operate in a normal or usual manner (g) The owner or operator of a primary ■ 4. Section 63.1543 is revised to read which causes, or has the potential to lead processor must maintain and as follows: cause, the emission limitations in an operate each baghouse used to control applicable standard to be exceeded. § 63.1543 Standards for process and emissions from the sources listed in Failures that are caused in part by poor process fugitive sources. paragraphs (a)(1) through (9) and (b) of maintenance or careless operation are (a) No owner or operator of any this section such that the alarm on a bag not malfunctions. existing, new, or reconstructed primary leak detection system required under Materials storage and handling area lead processor shall discharge or cause § 63.1547(c)(8) does not sound for more means any area of a primary lead to be discharged into the atmosphere than five percent of the total operating processor in which lead-bearing lead compounds in excess of 0.97 time in a 6-month reporting period. materials (including ore concentrate, pounds per ton of lead metal produced (h) The owner or operator of a sinter, granulated lead, dross, slag, and from the aggregation of emissions primary lead processor must record the flue dust) are stored or handled between discharged from air pollution control date and time of a bag leak detection process steps, including areas in which devices used to control emissions from system alarm and initiate procedures to materials are stored in piles, bins, or the sources listed in paragraphs (a)(1) determine the cause of the alarm tubs, and areas in which material is through (9) of this section. according to the corrective action plan prepared for charging to a sinter (1) Sinter machine; required under § 63.1547(f) within 1 machine or smelting furnace or other (2) Blast furnace; hour of the alarm. The cause of the lead processing operation. (3) Dross furnace; alarm must be corrected as soon as * * * * * (4) Dross furnace charging location; practicable. Plant roadway means any area of a (5) Blast furnace and dross furnace (i) At all times, the owner or operator primary lead processor that is subject to tapping location; must operate and maintain any affected vehicle traffic, including traffic by (6) Sinter machine charging location; source, including associated air forklifts, front-end loaders, or vehicles (7) Sinter machine discharge end; pollution control equipment and carrying ore concentrates or cast lead (8) Sinter crushing and sizing monitoring equipment, in a manner ingots. Excluded from this definition are equipment; and consistent with safety and good air employee and visitor parking areas, (9) Sinter machine area. pollution control practices for provided they are not subject to traffic (b) No owner or operator of any minimizing emissions. Determination of by vehicles carrying lead-bearing existing, new, or reconstructed primary whether such operation and materials. lead processor shall discharge or cause maintenance procedures are being used Primary lead processor means any to be discharged into the atmosphere will be based on information available facility engaged in the production of lead compounds in excess of 1.2 tons to the Administrator which may lead metal from lead sulfide ore per year from the aggregation of the air include, but is not limited to, concentrates through the use of pollution control devices used to monitoring results, review of operation pyrometallurgical or other techniques. control emissions from furnace area and and maintenance procedures, review of Process fugitive source means a refining and casting operations. operation and maintenance records, and source of hazardous air pollutant (c) The process fugitive sources listed inspection of the source. emissions at a primary lead processor in paragraphs (a)(4) through (8) of this ■ 5. Section 63.1544 is revised to read that is associated with lead smelting, section must be equipped with a hood as follows:

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§ 63.1544 Standards for fugitive dust closure system or equivalent lock-and- than January 17, 2012. Each owner or sources. key method. operator of an existing primary lead (a) Each owner or operator of a (iii) It may be necessary to open doors processor must achieve compliance primary lead processor must prepare, subject to the requirements in with the requirements of § 63.1544 no and at all times operate according to, a § 63.1544(a)(4)(i) and (ii) to prevent heat later than February 13, 2012. Each standard operating procedures manual stress or exhaustion of workers inside owner or operator of an existing primary that describes in detail the measures the blast furnace building. Records of lead processor must achieve compliance that will be put in place to control such periods must be included in the with the requirements in § 63.1543(b) fugitive dust emissions from the sources report required under § 63.1549(e)(8). and (e) of this subpart no later than listed in paragraphs (a)(1) through (a)(5) (5) Refining and casting area(s). (i) November 15, 2013. of this section that incorporates each of Personnel doors must be kept closed (b) Each owner or operator of a new the specific work practices listed in during operations except when entering primary lead processor must achieve paragraphs (a)(1) through (a)(5) of this or exiting the furnace building by the compliance with the requirements of section: aid of door weights or similar device for this subpart no later than January 17, (1) Plant roadways. (i) Paved plant automatic closure. 2012 or startup, whichever is later. roadways must be cleaned using a wet (ii) Large equipment doors must (c) Prior to the dates specified in sweeper unless the temperature falls remain closed except when entering or § 63.1545(a), each owner or operator of below 39 degrees Fahrenheit or when existing the building using an automatic an existing primary lead processor must the application of water results in the closure system or equivalent lock-and- continue to comply with the formation of ice. During periods when key method. requirements of §§ 63.1543 and 63.1544 the temperature is below 39 degrees (iii) It may be necessary to open doors as promulgated in the June 4, 1999 Fahrenheit, paved plant roadways must subject to the requirements in NESHAP for Primary Lead Smelting. be cleaned using a high efficiency dry § 63.1544(a)(5)(i) and (ii) to prevent heat (d) Each owner or operator of an sweeper. stress or exhaustion of workers inside existing primary lead processor must (ii) Continuously operate a sprinkler the refining and casting building. comply with the requirements of system to wet plant roadways to prevent Records of such periods must be §§ 63.1547(g)(1) and (2), 63.1551, and fugitive dust entrainment. This included in the report required under Table 1 of Subpart TTT of Part 63 on sprinkler system must be operated § 63.1549(e)(8). November 15, 2011. (b) Notwithstanding paragraph (c) of except during periods when the ■ 7. Section 63.1546 is revised to read this section, the standard operating temperature is less than 39 degrees as follows: procedures manual shall be submitted Fahrenheit or when the application of to the Administrator or delegated § 63.1546 Performance testing. water results in formation of ice. authority for review and approval. (2) Material storage and handling (a) The following procedures must be (c) Existing manuals that describe the used to determine quarterly compliance area(s). (i) Chemically stabilize inactive measures in place to control fugitive concentrate storage piles a minimum of with the emissions standard for lead dust sources required as part of a State compounds under § 63.1543(a) and (b) once every month to reduce particulate implementation plan for lead shall from wind born re-suspension. for existing sources: satisfy the requirements of paragraph (a) (1) Each owner or operator of existing (ii) Finished sinter must be of this section provided they include all sources listed in § 63.1543(a)(1) through sufficiently wetted to ensure fugitive the work practices as described in (9) and (b) must determine the lead dust emissions are minimized prior to paragraphs (a)(1) through (5) of this compound emissions rate, in units of loading to railcars. section and provided they address all pounds of lead per hour according to (3) Sinter machine area(s). (i) the sources listed in paragraphs (a)(1) the following test methods in appendix Personnel doors must be kept closed through (5) of this section. A of part 60 of this chapter: during operations except when entering (d) At all times, the owner or operator (i) Method 1 must be used to select or exiting the furnace building by the must operate and maintain any affected the sampling port location and the aid of door weights or similar device for source, including associated air number of traverse points. automatic closure. pollution control equipment and (ii) Method 2, 2F, 2G must be used to (ii) Large equipment doors must monitoring equipment, in a manner measure volumetric flow rate. remain closed except when entering or consistent with safety and good air (iii) Method 3, 3A, 3B must be used existing the building using an automatic pollution control practices for for gas analysis. closure system or equivalent lock-and- minimizing emissions. Determination of (iv) Method 4 must be used to key method. whether such operation and determine moisture content of the stack (iii) It may be necessary to open doors maintenance procedures are being used gas. subject to the requirements in will be based on information available (v) Method 12 or Method 29 must be § 63.1544(a)(3)(i) and (ii) to prevent heat to the Administrator which may used to determine lead emissions rate of stress or exhaustion of workers inside include, but is not limited to, the stack gas. the sinter plant building. Records of monitoring results, review of operation (2) A performance test shall consist of such periods must be included in the and maintenance procedures, review of at least three runs. For each test run report required under § 63.1549(e)(8). operation and maintenance records, and with Method 12 or Method 29, the (4) Furnace area(s). (i) Personnel inspection of the source. minimum sample time must be 60 doors must be kept closed during ■ 6. Section 63.1545 is revised to read minutes and the minimum volume must operations except when entering or as follows: be 1 dry standard cubic meter (35 dry exiting the furnace building by the aid standard cubic feet). of door weights or similar device for § 63.1545 Compliance dates. (3) Performance tests shall be automatic closure. (a) Each owner or operator of an completed quarterly, once every 3 (ii) Large equipment doors must existing primary lead processor must months, to determine compliance. remain closed except when entering or achieve compliance with the (4) The lead emission rate in pounds existing the building using an automatic requirements in § 16.1543(a) no later per quarter is calculated by multiplying

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the quarterly lead emission rate in accordance with paragraphs (b)(1) through visual inspection or equivalent pounds per hour by the quarterly plant through (4) of this section. means. operating time, in hours as shown in (1) Use a propeller anemometer or (5) Quarterly visual check of bag Equation 1: equivalent device. tension on reverse air and shaker-type (2) Determine doorway in-draft by baghouses to ensure that bags are not placing the anemometer in the plane of kinked (kneed or bent) or laying on their Where: the doorway opening near its center. sides. Such checks are not required for shaker-type baghouses using self- EPb = quarterly lead emissions, pounds per (3) Determine doorway in-draft for quarter; each doorway that is open during tensioning (spring loaded) devices. ERPb = quarterly lead emissions rate, pounds normal operation with all remaining (6) Quarterly confirmation of the per hour; and doorways in their customary position physical integrity of the baghouse QPOT = quarterly plant operating time, hours during normal operation. through visual inspection of the per quarter. (4) Do not determine doorway in-draft baghouse interior for air leaks. (7) Quarterly inspection of fans for (5) The lead production rate, in units when ambient wind speed exceeds 2 wear, material buildup, and corrosion of tons per quarter, must be determined meters per second. through visual inspection, vibration based on production data for the (c) Performance tests shall be detectors, or equivalent means. previous quarter according to the conducted under such conditions as the Administrator specifies to the owner or (8) Except as provided in paragraph procedures detailed in paragraphs (h) of this section, continuous operation (a)(5)(i) through (iv) of this section: operator based on representative performance of the affected source for of a bag leak detection system. (i) Total lead products production (d) The procedures specified in the the period being tested. Upon request, multiplied by the fractional lead content standard operating procedures manual the owner or operator shall make must be determined in units of tons. for maintenance must, at a minimum, available to the Administrator such (ii) Total copper matte production include a preventative maintenance records as may be necessary to multiplied by the fractional lead content schedule that is consistent with the determine the conditions of must be determined in units of tons. baghouse manufacturer’s instructions performance tests. (iii) Total copper speiss production for routine and long-term maintenance. multiplied by the fractional lead content ■ 8. Section 63.1547 is revised to read (e) The bag leak detection system must be determined in units of tons. as follows: required by paragraph (c)(8) of this (iv) Total quarterly lead production § 63.1547 Monitoring requirements. section must meet the specifications and must be determined by summing the requirements of (e)(1) through (8) of this values obtained in paragraphs (a)(5)(i) (a) Owners and operators of primary section. through (iii) of this section. lead processors must prepare, and at all (1) The bag leak detection system (6) To determine compliance with the times operate according to, a standard must be certified by the manufacturer to production-based lead compound operating procedures manual that be capable of detecting particulate emission rate in § 63.1543(a), the describes in detail the procedures for matter emissions at concentrations of 10 quarterly production-based lead inspection, maintenance, and bag leak milligram per actual cubic meter (0.0044 compound emission rate, in units of detection and corrective action for all grains per actual cubic foot) or less. pounds of lead emissions per ton of lead baghouses that are used to control (2) The bag leak detection system produced, is calculated as shown in process, process fugitive, or fugitive sensor must provide output of relative Equation 2 by dividing lead emissions dust emissions from any source subject particulate matter loadings, and the by lead production. to the lead emission standards in owner or operator must continuously §§ 63.1543 and 63.1544, including those record the output from the bag leak used to control emissions from general detection system. ventilation systems. (3) The bag leak detection system (b) The standard operating procedures must be equipped with an alarm system Where: manual for baghouses required by that will sound when an increase in paragraph (a) of this section must be CEPb = quarterly production-based lead relative particulate loading is detected compound emission rate, in units of submitted to the Administrator or over a preset level, and the alarm must pounds of lead emissions per ton of lead delegated authority for review and be located such that it can be heard or produced; approval. otherwise determined by the EPb = quarterly lead emissions, pounds per (c) The procedures specified in the appropriate plant personnel. quarter; and standard operating procedures manual (4) Each bag leak detection system PPb = quarterly lead production, tons per for inspections and routine maintenance that works based on the triboelectric quarter. must, at a minimum, include the effect must be installed, calibrated, and (7) To determine quarterly requirements of paragraphs (c)(1) maintained in a manner consistent with compliance with the emissions standard through (8) of this section. guidance provided in the U.S. for lead compounds under § 63.1543(b), (1) Weekly confirmation that dust is Environmental Protection Agency sum the lead compound emission rates being removed from hoppers through guidance document ‘‘Fabric Filter Bag for the current and previous three visual inspection or equivalent means of Leak Detection Guidance’’ (EPA–454/R– quarters for the sources in § 63.1543(b), ensuring the proper functioning of 98–015). Other bag leak detection as determined in accordance with removal mechanisms. systems must be installed, calibrated, paragraphs (a)(1) through (4) of this (2) Daily check of compressed air and maintained in a manner consistent section. supply for pulse-jet baghouses. with the manufacturer’s written (b) Owners and operators must (3) An appropriate methodology for specifications and recommendations. perform an initial compliance test to monitoring cleaning cycles to ensure (5) The initial adjustment of the demonstrate compliance with the sinter proper operation. system must, at a minimum, consist of building in-draft requirements of (4) Monthly check of bag cleaning establishing the baseline output by § 63.1543(d) at each doorway opening in mechanisms for proper functioning adjusting the sensitivity (range) and the

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averaging period of the device, and 1 hour of the alarm, 1 hour of alarm system ventilating the building. The establishing the alarm set points and the time must be counted. flow rate monitoring device(s) can be alarm delay time. (2) For each alarm where the owner or installed in any location in the exhaust (6) Following initial adjustment, the operator does not initiate procedures to duct such that reproducible flow rate owner or operator must not adjust the determine the cause of the alarm within measurements will result. The flow rate sensitivity or range, averaging period, 1 hour of the alarm, alarm time will be monitoring device(s) must have an alarm set points, or alarm delay time, counted as the actual amount of time accuracy of plus or minus 10 percent except as detailed in the approved SOP taken by the owner or operator to over the normal process operating range required under paragraph (a) of this initiate procedures to determine the and must be calibrated according to section. In no event shall the sensitivity cause of the alarm. manufacturer’s instructions. be increased by more than 100 percent (3) The percentage of time the alarm (ii) During the initial demonstration of or decreased more than 50 percent over on the bag leak detection system sounds sinter building in-draft, and at any time a 365-day period unless a responsible must be calculated as the ratio of the the owner or operator wishes to re- official certifies that the baghouse has sum of alarm times to the total operating establish the baseline ventilation been inspected and found to be in good time multiplied by 100. parameters, the owner or operator must operating condition. (h) Baghouses equipped with HEPA continuously record the volumetric flow (7) For negative pressure, induced air filters as a secondary filter used to rate through each separately ducted baghouses, and positive pressure control process or process fugitive hood, or continuously record the baghouses that are discharged to the sources subject to the lead emission volumetric flow rate at the control atmosphere through a stack, the bag leak standards in § 63.1543 are exempt from device inlet of each exhaust system detector must be installed downstream the requirement in paragraph (c)(8) of ventilating the building and record of the baghouse and upstream of any this section to be equipped with a bag exhaust system damper positions. The wet acid gas scrubber. leak detector. The owner or operator of owner or operator must determine the (8) Where multiple detectors are an affected source that uses a HEPA average volumetric flow rate(s) required, the system’s instrumentation filter must monitor and record the corresponding to the period of time the and alarm may be shared among pressure drop across the HEPA filter in-draft compliance determinations are detectors. system daily. If the pressure drop is being conducted. (f) The standard operating procedures outside the limit(s) specified by the (iii) The owner or operator must manual required by paragraph (a) of this filter manufacturer, the owner or maintain the volumetric flow rate(s) at section must include a corrective action operator must take appropriate or above the value(s) established during plan that specifies the procedures to be corrective measures, which may the most recent in-draft determination at followed in the event of a bag leak include, but not be limited to, the all times the sinter machine is in detection system alarm. The corrective following: operation. Volumetric flow rate(s) must action plan must include at a minimum, (1) Inspecting the filter and filter be calculated as a 15-minute average. procedures to be used to determine the housing for air leaks and torn or broken (iv) If the volumetric flow rate is cause of an alarm, as well as actions to filters. monitored at the control device inlet, (2) Replacing defective filter media, or be taken to minimize emissions, which the owner or operator must check and otherwise repairing the control device. may include, but are not limited to, the record damper positions daily to ensure (3) Sealing off a defective control following. they are in the positions they were in device by routing air to other (1) Inspecting the baghouse for air during the most recent in-draft comparable control devices. leaks, torn or broken bags or filter determination. media, or any other condition that may (4) Shutting down the process (3) An owner or operator may request cause an increase in emissions. producing the particulate emissions. an alternative monitoring method by (2) Sealing off defective bags or filter (i) Owners and operators must following the procedures and media. monitor sinter machine building in-draft (3) Replacing defective bags or filter to demonstrate continued compliance requirements in § 63.8(f) of the General media, or otherwise repairing the with the operating standard specified in Provisions. control device. § 63.1543(d) in accordance with either (j) Each owner or operator of new or (4) Sealing off a defective baghouse paragraph (i)(1), (2), or (3) of this modified sources listed under § 63.1543 compartment. section. (a)(1) through (9) and (b) must install, (5) Cleaning the bag leak detection (1) Owners and operators must check calibrate, maintain, and operate a system probe, or otherwise repairing or and record on a daily basis doorway in- continuous emission monitoring system maintaining the bag leak detection draft at each doorway in accordance (CEMS) for measuring lead emissions system. with the methodology specified in and a continuous emission rate (6) Shutting down the process § 63.1546(b). monitoring system (CERMS) subject to producing the particulate emissions. (2) Owners and operators must Performance Specification 6 of (g) The percentage of total operating establish and maintain baseline Appendix B to part 60. time the alarm on the bag leak detection ventilation parameters which result in a (1) Each owner or operator of a source system sounds in a 6-month reporting positive in-draft according to paragraphs subject to the emissions limits for lead period must be calculated in order to (i)(2)(i) through (iv) of this section. compounds under § 63.1543(a)and (b) determine compliance with the five (i) Owners and operators must install, must install a CEMS for measuring lead percent operating limit in § 63.1543(g). calibrate, maintain, and operate a emissions within 180 days of The percentage of time the alarm on the monitoring device that continuously promulgation of performance bag leak detection system sounds must records the volumetric flow rate through specifications for lead CEMS. be determined according to paragraphs each separately ducted hood; or install, (i) Prior to promulgation of (g)(1) through (3) of this section. calibrate, maintain, and operate a performance specifications for CEMS (1) For each alarm where the owner or monitoring device that continuously used to measure lead concentrations, an operator initiates procedures to records the volumetric flow rate at the owner or operator must use the determine the cause of an alarm within control device inlet of each exhaust procedure described in § 63.1546(a)(1)

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through (7) of this section to determine subpart A, General Provisions as (6) If an owner or operator chooses to compliance. specified in Table 1 of this subpart. demonstrate continuous compliance (2) If a CEMS used to measure lead (b) The owner or operator of a primary with the sinter building in-draft emissions is applicable, the owner or lead processor must submit the standard requirement under § 63.1543(d) by operator must install a CERMS with a operating procedures manual for employing the method allowed in sensor in a location that provides baghouses required under § 63.1547(a) § 63.1547(i)(2), the records of the output representative measurement of the to the Administrator or delegated from the continuous volumetric flow exhaust gas flow rate at the sampling authority along with a notification that monitor(s), an identification of the location of the CEMS used to measure the primary lead processor is seeking periods when the 15-minute volumetric lead emissions, taking into account the review and approval of the manual and flow rate dropped below the minimum manufacturer’s recommendations. The procedures. Owners or operators of established during the most recent in- flow rate sensor is that portion of the existing primary lead processors must draft determination, and an explanation system that senses the volumetric flow submit this notification no later than of the corrective actions taken. rate and generates an output November 6, 2000. The owner or (7) If an owner or operator chooses to proportional to that flow rate. operator of a primary lead processor that demonstrate continuous compliance (i) The CERMS must be designed to commences construction or with the sinter building in-draft measure the exhaust gas flow rate over reconstruction after April 17, 1998, requirement under § 63.1543(d) by a range that extends from a value of at must submit this notification no later employing the method allowed in least 20 percent less than the lowest than 180 days before startup of the § 63.1547(i)(2), and volumetric flow rate expected exhaust flow rate to a value of constructed or reconstructed primary is monitored at the baghouse inlet, at least 20 percent greater than the lead processor, but no sooner than records of the daily checks of damper highest expected exhaust gas flow rate. September 2, 1999. positions, an identification of the days (ii) The CERMS must be equipped ■ 10. Section 63.1549 is revised to read that the damper positions were not in with a data acquisition and recording as follows: the positions established during the system that is capable of recording most recent in-draft determination, and values over the entire range specified in § 63.1549 Recordkeeping and reporting an explanation of the corrective actions paragraph (j)(2)(i) of this section. requirements. taken. (iii) Each owner or operator must (a) The owner or operator of a primary (8) Records of the occurrence and perform an initial relative accuracy test lead processor must comply with the duration of each malfunction of of the CERMS in accordance with the recordkeeping requirements of § 63.10 operation (i.e., process equipment) or applicable Performance Specification in of subpart A, General Provisions as the air pollution control equipment and Appendix B to part 60 of the chapter. specified in Table 1 of this subpart. monitoring equipment. (iv) Each owner or operator must (b) In addition to the general records (9) Records of actions taken during operate the CERMS and record data required by paragraph (a) of this section, periods of malfunction to minimize during all periods of operation of the each owner or operator of a primary emissions in accordance with affected facility including periods of lead processor must maintain for a §§ 63.1543(i) and 63.1544(d), including startup, shutdown, and malfunction, period of 5 years, records of the corrective actions to restore except for periods of monitoring system information listed in paragraphs (b)(1) malfunctioning process and air malfunctions, repairs associated with through (10) of this section. pollution control and monitoring monitoring system malfunctions, and (1) Production records of the weight equipment to its normal or usual required monitoring system quality and lead content of lead products, manner of operation. (c) Records for the most recent 2 years assurance or quality control activities copper matte, and copper speiss. of operation must be maintained on site. (including, as applicable, calibration (2) Records of the bag leak detection Records for the previous 3 years may be checks and required zero and span system output. maintained off site. adjustments. (3) An identification of the date and (d) The owner or operator of a (3) Each owner or operator must time of all bag leak detection system primary lead processor must comply calculate the lead emissions rate in tons alarms, the time that procedures to with the reporting requirements of per year by summing all hours of CEMS determine the cause of the alarm were § 63.10 of subpart A, General Provisions data for a year to determine compliance initiated, the cause of the alarm, an as specified in Table 1 of this subpart. with § 63.1543(b). explanation of the actions taken, and the (e) In addition to the information (i) When the CERMS are unable to date and time the cause of the alarm was required under § 63.10 of the General provide quality assured data the corrected. Provisions, the owner or operator must following applies: (4) Any recordkeeping required as provide semi-annual reports containing (A) When data are not available for part of the practices described in the the information specified in paragraphs periods of up to 48 hours, the highest standard operating procedures manual (e)(1) through (9) of this section to the recorded hourly emission rate from the for baghouses required under Administrator or designated authority. previous 24 hours must be used. § 63.1547(a). (1) The reports must include records (B) When data are not available for 48 (5) If an owner or operator chooses to of all alarms from the bag leak detection or more hours, the maximum daily demonstrate continuous compliance system specified in § 63.1547(e). emission rate based on the previous 30 with the sinter building in-draft (2) The reports must include a days must be used. requirement under § 63.1543(d) by description of the actions taken ■ 9. Section 63.1548 is revised to read employing the method allowed in following each bag leak detection as follows: § 63.1547(i)(1), the records of the daily system alarm pursuant to § 63.1547(f). doorway in-draft checks, an (3) The reports must include a § 63.1548 Notification requirements. identification of the periods when there calculation of the percentage of time the (a) The owner or operator of a primary was not a positive in-draft, and an alarm on the bag leak detection system lead processor must comply with the explanation of the corrective actions sounded during the reporting period notification requirements of § 63.9 of taken. pursuant to § 63.1547(g).

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(4) If an owner or operator chooses to during a malfunction of an affected to the maximum extent practicable demonstrate continuous compliance source to minimize emissions in during periods of such emissions; and with the sinter building in-draft accordance with §§ 63.1543(i) and (4) If the excess emissions resulted requirement under § 63.1543(d) by 63.1544(d), including actions taken to from a bypass of control equipment or employing the method allowed in correct a malfunction. a process, then the bypass was § 63.1547(i)(1), the reports must contain ■ 11. Section 63.1550 is revised to read unavoidable to prevent loss of life, an identification of the periods when as follows: personal injury, or severe property there was not a positive in-draft, and an damage; and explanation of the corrective actions § 63.1550 Delegation of authority. (5) All possible steps were taken to taken. (a) In delegating implementation and minimize the impact of the excess (5) If an owner or operator chooses to enforcement authority to a State under emissions on ambient air quality, the demonstrate continuous compliance section 112(l) of the act, the authorities environment and human health; and with the sinter building in-draft contained in paragraph (b) of this (6) All emissions monitoring and requirement under § 63.1543(d) by section must be retained by the control systems were kept in operation employing the method allowed in Administrator and not transferred to a if at all possible, consistent with safety § 63.1547(i)(2), the reports must contain State. and good air pollution control practices; an identification of the periods when (b) Authorities which will not be and the 15-minute volumetric flow rate(s) delegated to States: No restrictions. (7) All of the actions in response to dropped below the minimum ■ 12. Section 63.1551 is added to read the excess emissions were documented established during the most recent in- as follows: by properly signed, contemporaneous draft determination, and an explanation operating logs; and of the corrective actions taken. § 63.1551 Affirmative defense for (8) At all times, the facility was (6) If an owner or operator chooses to exceedance of emission limit during malfunction. operated in a manner consistent with demonstrate continuous compliance good practices for minimizing with the sinter building in-draft In response to an action to enforce the emissions; and requirement under § 63.1543(d) by standards set forth in this subpart you (9) A written root cause analysis has employing the method allowed in may assert an affirmative defense to a been prepared, the purpose of which is § 63.1547(i)(2), and volumetric flow rate claim for civil penalties for exceedances to determine, correct, and eliminate the is monitored at the baghouse inlet, the of such standards that are caused by primary causes of the malfunction and reports must contain an identification of malfunction, as defined at 40 CFR 63.2. the excess emissions resulting from the the days that the damper positions were Appropriate penalties may be assessed, malfunction event at issue. The analysis not in the positions established during however, if you fail to meet your burden shall also specify, using best monitoring the most recent in-draft determination, of proving all of the requirements in the methods and engineering judgment, the and an explanation of the corrective affirmative defense. The affirmative amount of excess emissions that were actions taken. defense shall not be available for claims (7) The reports must contain a the result of the malfunction. for injunctive relief. (b) Notification. The owner or summary of the records maintained as (a) Affirmative defense. To establish operator of the facility experiencing an part of the practices described in the the affirmative defense in any action to exceedance of its emission limit(s) standard operating procedures manual enforce such a limit, you must timely during a malfunction shall notify the for baghouses required under meet the notification requirements in Administrator by telephone or facsimile § 63.1547(a), including an explanation paragraph (b) of this section, and must (FAX) transmission as soon as possible, of the periods when the procedures prove by a preponderance of evidence but no later than two business days after were not followed and the corrective that: the initial occurrence of the actions taken. (1) The excess emissions: (8) The reports shall contain a (i) Were caused by a sudden, malfunction, if it wishes to avail itself summary of the fugitive dust control infrequent, and unavoidable failure of of an affirmative defense to civil measures performed during the required air pollution control and monitoring penalties for that malfunction. The reporting period, including an equipment, process equipment, or a owner or operator seeking to assert an explanation of any periods when the process to operate in a normal or usual affirmative defense shall also submit a procedures outlined in the standard manner, and written report to the Administrator operating procedures manual required (ii) Could not have been prevented within 45 days of the initial occurrence by § 63.1544(a) were not followed and through careful planning, proper design of the exceedance of the standards in the corrective actions taken. The reports or better operation and maintenance this subpart to demonstrate, with all shall not contain copies of the daily practices; and necessary supporting documentation, records required to demonstrate (iii) Did not stem from any activity or that it has met the requirements set forth compliance with the requirements of the event that could have been foreseen and in paragraph (a) of this section. The standard operating procedures manuals avoided, or planned for; and owner or operator may seek an required under §§ 63.1544(a) and (iv) Were not part of a recurring extension of this deadline for up to 30 63.1547(a). pattern indicative of inadequate design, additional days by submitting a written (9) If there was a malfunction during operation, or maintenance; and request to the Administrator before the the reporting period, the report shall (2) Repairs were made as expiration of the 45 day period. Until a also include the number, duration, and expeditiously as possible when the request for an extension has been a brief description for each type of applicable emission limitations were approved by the Administrator, the malfunction which occurred during the being exceeded. Off-shift and overtime owner or operator is subject to the reporting period and which caused or labor were used, to the extent requirement to submit such report may have caused any applicable practicable to make these repairs; and within 45 days of the initial occurrence emission limitation to be exceeded. The (3) The frequency, amount and of the exceedance. report must also include a description of duration of the excess emissions ■ 13. Table 1 to Subpart TTT of Part 63 actions taken by an owner or operator (including any bypass) were minimized is revised to read as follows:

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TABLE 1 OF SUBPART TTT—GENERAL PROVISIONS APPLICABILITY TO SUBPART TTT

Applies to subpart Reference TTT Comment

******* 63.6(a), (b), (c) ...... Yes. 63.6(d) ...... No ...... Section reserved. 63.6(e)(1)(i) ...... No ...... See 63.1543(i) and 63.1544(d) for general duty re- quirement. 63.6(e)(1)(ii) ...... No. 63.6(e)(1)(iii) ...... Yes. 63.6(e)(2) ...... No ...... Section reserved. 63.6(e)(3) ...... No. 63.6(f)(1) ...... No. 63.6(g) ...... Yes. 63.6(h) ...... No ...... No opacity limits in rule. 63.6(i) ...... Yes. 63.6(j) ...... Yes. § 63.7(a)–(d) ...... Yes. § 63.7(e)(1) ...... No ...... See 63.1546(c). § 63.7(e)(2)–(e)(4) ...... Yes. 63.7(f), (g), (h) ...... Yes. 63.8(a)–(b) ...... Yes. 63.8(c)(1)(i) ...... No. 63.8(c)(1)(ii) ...... Yes. 63.8(c)(1)(iii) ...... No. 63.8(c)(2)–(d)(2) ...... Yes. 63.8(d)(3) ...... Yes, except for last sentence. 63.8(e)–(g) ...... Yes. 63.9(a), (b), (c), (e), (g), (h)(1) through (3), (h)(5) and Yes. (6), (i) and (j). 63.9(f) ...... No. 63.9(h)(4) ...... No ...... Reserved. 63.10(b)(2)(i) ...... No. 63.10(b)(2)(ii) ...... No ...... See 63.1549(b)(9) and (10) for recordkeeping of oc- currence and duration of malfunctions and record- keeping of actions taken during malfunction. 63.10(b)(2)(iii) ...... Yes. 63.10(b)(2)(iv)–(b)(2)(v) ...... No. 63.10(b)(2)(vi)–(b)(2)(xiv) ...... Yes. 63.(10)(b)(3) ...... Yes. 63.10(c)(1)–(9) ...... Yes. 63.10(c)(10)–(11) ...... No ...... See 63.1549(b)(9) and (10) for recordkeeping of mal- functions. 63.10(c)(12)–(c)(14) ...... Yes. 63.10(c)(15) ...... No. 63.10(d)(1)–(4) ...... Yes. 63.10(d)(5) ...... No ...... See 63.1549(e)(9) for reporting of malfunctions. 63.10(e)–(f) ...... Yes.

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[FR Doc. 2011–29287 Filed 11–14–11; 8:45 am] BILLING CODE 6560–50–P

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