[Federal Register Volume 76, Number 49 (Monday, March 14, 2011)]
[Proposed Rules]
[Pages 13852-13878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5530]



[[Page 13851]]

Vol. 76

Monday,

No. 49

March 14, 2011

Part V





Environmental Protection Agency





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40 CFR Part 63



National Emission Standards for Hazardous Air Pollutants: Mercury 
Emissions From Mercury Cell Chlor-Alkali Plants; Proposed Rule

  Federal Register / Vol. 76 , No. 49 / Monday, March 14, 2011 / 
Proposed Rules  

[[Page 13852]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2002-0017; FRL-9278-5]
RIN 2060-AN99


National Emission Standards for Hazardous Air Pollutants: Mercury 
Emissions From Mercury Cell Chlor-Alkali Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental proposed rule.

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SUMMARY: This action proposes amendments to the national emission 
standards for hazardous air pollutants (NESHAP) for mercury emissions 
from mercury cell chlor-alkali plants (Mercury Cell NESHAP). On June 
11, 2008, EPA proposed amendments to this NESHAP in response to a 
petition for reconsideration filed by the Natural Resources Defense 
Council (NRDC). This action is a supplement to the June 11, 2008, 
proposal. Specifically, this action proposes two options for amending 
the NESHAP for mercury emissions from mercury cell chlor-alkali plants. 
The first option would require the elimination of mercury emissions and 
thus encourage the conversion to non-mercury technology. The second 
option would require the measures proposed in 2008. These measures, 
which included significant improvements in the work practices to reduce 
fugitive emissions from the cell room, would result in near-zero levels 
of mercury emissions while still allowing the mercury cell facilities 
to continue to operate. We are specifically requesting comment on which 
of these options is more appropriate, and may finalize either option or 
a combination of elements from them. In addition, this action proposes 
several amendments that would apply regardless of which option we 
select. These proposed amendments are provisions of the existing NESHAP 
that would apply to periods of startup, shutdown, and malfunction 
(SSM), and corrections to compliance errors in the currently effective 
rule.

DATES: Comments must be received on or before May 13, 2011. Under the 
Paperwork Reduction Act, comments on the information collection 
provisions must be received by the Office of Management and Budget 
(OMB) on or before April 13, 2011.
    Public Hearing. If anyone contacts EPA by March 29, 2011 requesting 
to speak at a public hearing, EPA will hold a public hearing on April 
13, 2011. If a public hearing is held, it will be held at EPA's Campus 
located at 109 T.W. Alexander Drive in Research Triangle Park, NC, or 
an alternate site nearby. Contact Virginia Hunt at (919) 541-0832 to 
request a hearing, to determine if a hearing will be held, or to 
determine the hearing location. If no one contacts EPA requesting to 
speak at a public hearing concerning this proposed rule by March 29, 
2011, the hearing will be cancelled without further notice.

ADDRESSES: You may submit comments, identified by Docket ID No. EPA-HQ-
OAR-2002-0017, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov: 
Follow the instructions for submitting comments.
     Agency Web Site: http://www.epa.gov/oar/docket.html. 
Follow the instructions for submitting comments on the EPA Air and 
Radiation Docket Web site.
     E-mail: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2002-0017 in the subject line of the message.
     Fax: (202) 566-9744.
     Mail: National Emission Standards for Hazardous Air 
Pollutants for Mercury Cell Chlor-alkali Plants Docket, Environmental 
Protection Agency, EPA Docket Center (EPA/DC), Air and Radiation 
Docket, Mail Code 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 
20460. Please include a total of two copies. In addition, please mail a 
copy of your comments on the information collection provisions to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW., 
Washington, DC 20503.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2002-0017. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy at the National Emission Standards 
for Hazardous Air Pollutants for Mercury Cell Chlor-alkali Plants 
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Sharon Nizich, Sector Policies and 
Programs Division, Office of Air Quality Planning and Standards (D243-
02), Environmental Protection Agency, Research Triangle Park, North 
Carolina 27711, telephone number: (919) 541-2825; fax number: (919) 
541-5450; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:
    The supplementary information in this preamble is organized as 
follows:

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments to EPA?

[[Page 13853]]

    C. Where can I get a copy of this document?
    D. When would a public hearing occur?
II. Background Information
    A. What is the history of the Mercury Cell NESHAP?
    B. What petitions were filed after promulgation of the Mercury 
Cell NESHAP in 2003?
    C. What were the reconsideration decisions proposed in 2008?
    D. What current legislation is related to this effort?
III. Summary of Proposed Amendments
    A. What is the non-mercury technology option (Option 1)?
    B. What is the enhanced work practices option (Option 2)?
    C. What amendments are being proposed that are independent of 
which option is selected?
IV. Request for Comment
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Does this action apply to me?

    The regulated categories and entities potentially affected by this 
proposed action include:

------------------------------------------------------------------------
                                                  Examples of regulated
            Category              NAICS code\1\          entities
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Industry.......................          325181  Alkalis and Chlorine
                                                  Manufacturing.
Federal government.............  ..............  Not affected.
State/local/Tribal government..  ..............  Not affected.
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\1\ North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. To determine whether your facility would be regulated by this 
action, you should examine the applicability criteria in 40 CFR 63.7682 
of subpart IIIII, National Emission Standards for Hazardous Air 
Pollutants (NESHAP): Mercury Emissions from Mercury Cell Chlor-Alkali 
(hereafter called the ``2003 Mercury Cell NESHAP''). If you have any 
questions regarding the applicability of this action to a particular 
entity, consult either the air permitting authority for the entity or 
your EPA regional representative as listed in 40 CFR 63.13 of subpart A 
(General Provisions).

B. What should I consider as I prepare my comments to EPA?

    Do not submit information containing CBI to EPA through http://www.regulations.gov or e-mail. Send or deliver information identified 
as CBI only to the following address: Roberto Morales, OAQPS Document 
Control Officer (C404-02), Environmental Protection Agency, Office of 
Air Quality Planning and Standards, Research Triangle Park, North 
Carolina 27711, Attention Docket ID EPA-HQ-OAR-2002-0017. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information in a disk or CD ROM that you mail to EPA, mark the outside 
of the disk or CD ROM as CBI and then identify electronically within 
the disk or CD ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.

C. Where can I get a copy of this document?

    In addition to being available in the docket, an electronic copy of 
this proposed action will also be available on the World Wide Web (WWW) 
through the Technology Transfer Network (TTN). Following signature, a 
copy of this proposed action will be posted on the TTN's policy and 
guidance page for newly proposed or promulgated rules at the following 
address: http://www.epa.gov/ttn/oarpg/. The TTN provides information 
and technology exchange in various areas of air pollution control.

D. When would a public hearing occur?

    If anyone contacts EPA requesting to speak at a public hearing 
concerning the proposed amendments by March 24, 2011, we will hold a 
public hearing on April 13, 2011. If you are interested in attending 
the public hearing, contact Ms. Virginia Hunt at (919) 541-0832 to 
verify that a hearing will be held. If a public hearing is held, it 
will be held at 10 a.m. at the EPA's Environmental Research Center 
Auditorium, Research Triangle Park, NC, or an alternate site nearby.

II. Background Information

A. What is the history of the Mercury Cell NESHAP?

    On December 19, 2003, EPA promulgated the 2003 Mercury Cell NESHAP 
(40 CFR part 63, subpart IIIII, 68 FR 70904). This rule for mercury 
cell chlor-alkali plants implements section 112(d) of the Clean Air Act 
(CAA), which requires all categories and subcategories of major sources 
listed under section 112(c) to meet hazardous air pollutant emission 
standards reflecting the application of the maximum achievable control 
technology (MACT). Mercury cell chlor-alkali plants are a subcategory 
of the chlorine production source category listed under the authority 
of section 112(c)(1) of the CAA. In addition, mercury cell chlor-alkali 
plants are listed as an area source category under section 112(c)(3) 
and (k)(3)(B) of the CAA. The 2003 Mercury Cell NESHAP satisfied our 
requirement to issue 112(d) regulations under each of these listings 
(for mercury). The 2003 Mercury Cell NESHAP required both existing 
major and area sources to meet mercury emission limits on stack 
emission sources from both chlorine production and from the recovery of 
mercury from wastes and other scrap in mercury thermal recovery units. 
The 2003 Mercury Cell NESHAP also required the facilities to monitor 
and minimize fugitive mercury emissions from the cell room by 
conducting either daily work practices or work practices performed in 
response to high levels of mercury emissions determined from continuous 
mercury monitoring. The 2003 rule required facilities to comply with

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applicable emission limitations and work practice requirements at all 
times, except during periods of SSM. Finally, the 2003 Mercury Cell 
NESHAP prohibited mercury emissions from new and reconstructed 
facilities.

B. What petitions were filed after promulgation of the Mercury Cell 
NESHAP in 2003?

    On February 17, 2004, the NRDC submitted an administrative petition 
to EPA asking us to reconsider several aspects of the 2003 Mercury Cell 
NESHAP under CAA section 307(d)(7)(B). On the same day as the 
administrative petition, NRDC and the Sierra Club also filed a petition 
for judicial review of the 2003 Mercury Cell NESHAP in the U.S. Court 
of Appeals for the DC Circuit (Civ. No. 04-1048).
    By a letter dated April 8, 2004, Jeffrey Holmstead, then-EPA 
Assistant Administrator for the Office of Air and Radiation, notified 
the NRDC that EPA had granted NRDC's petition for reconsideration of 
the 2003 Mercury Cell NESHAP. On July 20, 2004, the Court granted EPA's 
motion to hold the case for judicial review in abeyance pending EPA's 
action on the reconsideration of the 2003 Mercury Cell NESHAP.

C. What were the reconsideration decisions proposed in 2008?

    On June 11, 2008 (73 FR 33257), EPA responded to NRDC's petition 
for reconsideration. In their petition, NRDC asked EPA to reconsider 
five issues: (1) The decision to develop a set of work practice 
requirements under CAA section 112(h) in lieu of a numeric emission 
limitation for cell rooms; (2) the decision to make the promulgated 
work practices optional for sources that choose to undertake continuous 
monitoring; (3) the decision to not require existing facilities to 
convert to a non-mercury chlorine manufacturing process; (4) the 
elimination of the previously applicable part 61 rule's 2,300 grams/day 
plant-wide emission limitation; and (5) the decision to create a 
subcategory of mercury cell chlor-alkali plants within the chlorine 
production category. In the 2008 proposal, EPA addressed each of these 
issues and proposed amendments where we determined them to be 
appropriate. Following are brief summaries of our reconsideration 
decisions. For a full explanation of these decisions and the rationale 
supporting them, please see the preamble for the June 11, 2008 proposal 
(73 FR 33258). The 2008 proposed amendments, which are being co-
proposed in this action as Option 2, are discussed in section III.B of 
this document.
    In addition, while not specifically listed as a major issue in 
their petition, the uncertainty related to the magnitude of fugitive 
mercury emissions was clearly a basis for much of NRDC's concern. This 
was also addressed in the 2008 proposal and is summarized below after 
the five specific issues cited by NRDC in the petition.
1. Emission Limitation for Cell Room
    In its petition for reconsideration, NRDC stated that EPA failed to 
adequately justify that a numeric emission limitation was not feasible 
per the criteria prescribed in section 112(h) of the CAA. In our 2008 
reconsideration, we concluded that it is not feasible to prescribe or 
enforce an emission limitation for fugitive emissions from the cell 
room. We maintained that fugitive emissions from mercury cells and 
associated equipment are a clear example of the type of situation to be 
addressed by the provisions of section 112(h). The various points which 
led to our opinion on the feasibility of establishing an emission 
standard were discussed in detail in the 2008 proposal (73 FR 33267-
33271). In summary, consistent with CAA section 112(h), we believe that 
it is not feasible to prescribe or enforce an emission standard in this 
case. There are two independent bases for this conclusion. First, 
consistent with CAA section 112(h)(2)(A), we concluded that fugitive 
mercury emissions from a mercury cell chlor-alkali plant cannot be 
emitted through a conveyance designed and constructed to emit or 
capture such pollutant. Second, consistent with CAA section 
112(h)(2)(B), we established that the application of measurement 
technology to mercury cell rooms is not practicable due to 
technological and economic limitations.
2. Optional Work Practices
    The 2003 Mercury Cell NESHAP requires facilities to follow a set of 
detailed work practices. The NESHAP also allows facilities to institute 
a cell room monitoring program to continuously monitor the mercury 
vapor concentration in the upper portion of each cell room as an 
alternative to these work practice standards. One of the objections 
raised by NRDC was that this provision backtracked from the Agency's 
proposed work practice standards. NRDC pointed out that in the 
development of the Mercury Cell NESHAP, EPA concluded that the 
housekeeping activities that facilities in the industry follow to 
comply with the part 61 mercury NESHAP (40 CFR 61, subpart E) 
represented the MACT floor and that requiring practices based upon the 
most detailed activities in the industry (i.e., ``beyond-the-floor'' 
practices) was justified. But NRDC was concerned because the work 
practices in the 2003 Mercury Cell NESHAP were optional if facilities 
chose to do continuous monitoring and, therefore, this option would 
allow sources to avoid conducting activities that represent the MACT 
floor. NRDC argued that this was a violation of section 112(d)(3) of 
the CAA, which requires all facilities to meet the MACT floor.
    As a result of our consideration of NRDC's point, we included 
proposed amendments in 2008 that would require that all plants 
institute a cell room monitoring program and comply with work practice 
standards (73 FR 33271-33272). As part of today's action, we are re-
proposing the combination of work practices and cell room monitoring 
program as option 2. The specific proposed amendments are discussed in 
section III.B of this document.
3. Requiring Conversion to a Non-Mercury Chlorine Manufacturing Process
    In its petition, NRDC argued that the 2003 Mercury Cell NESHAP does 
nothing to limit the use of mercury cell technology by existing chlor-
alkali plants, and that the Agency ignored a known technique for 
reducing mercury emissions from this industry, namely, conversion to 
non-mercury processes. According to NRDC, requiring the industry to 
convert to a non-mercury process is cost-justified and would provide 
significant non-air quality benefits. In response to NRDC's concerns 
that we did not evaluate the conversion of mercury cell chlor-alkali 
production plants to non-mercury technology, we performed an analysis 
to estimate the capital and annual costs of this action. In performing 
the analysis, we used information from all readily available sources of 
information. Based on the results of this analysis, we proposed to 
reject the option of requiring conversion to non-mercury technology 
because of the high cost impact this forced conversion would impose on 
the facilities in the industry (73 FR 33274-33275).
    Following the 2008 proposal, one commenter provided detailed 
comments on our proposed decision to not require existing facilities to 
convert to a non-mercury chlorine manufacturing process. In addition to 
comments on the EPA cost analysis described in our 2008 proposal, the 
commenter provided a report to support its comments. We

[[Page 13855]]

reviewed these comments, examined the commenter's report, and concluded 
that our cost analysis could be improved. Therefore, we incorporated 
some aspects of the commenter's cost analysis, and gathered additional 
cost information. The results of our revised analyses, and our 
consideration of the policy and legal comments made by the commenter 
regarding the benefits of non-mercury technology to produce chlorine, 
provided the impetus for the non-mercury mercury option being proposed 
today as Option 1. Details of this proposed option are provided in 
section III.A of this document.
4. Elimination of Part 61 NESHAP Numeric Limit
    NRDC stated that EPA illegally eliminated the 2,300 g/day limit on 
plant-wide mercury emissions that existed under the part 61 Mercury 
NESHAP. Upon reconsideration, we disagreed with NRDC's argument. We 
determined that the plant-wide emission limit from the part 61 Mercury 
NESHAP was a standard to which no mercury cell facility had ever 
demonstrated compliance by way of emissions testing, that it is not an 
enforceable standard today, and, more importantly, and that it did not 
reflect the MACT level of emissions control required under CAA section 
112(d)(3)(B). Therefore, we concluded that we did not unlawfully remove 
any actual requirement of the part 61 Mercury NESHAP. Instead, the 2003 
Mercury Cell NESHAP adopted a set of MACT-level work practice 
requirements under section 112(h) that are more stringent in terms of 
controlling fugitive mercury emissions than was allowed in the part 61 
NESHAP. Details on this conclusion were provided on pages 73 FR 33270 
and 33271 of the June 11, 2008 proposal.
5. Mercury Cell Chlor-Alkali Subcategory
    As stated in the preamble to the final 2003 Mercury Cell NESHAP (68 
FR 70905), we divided the chlorine production source category into two 
subcategories: (1) Mercury cell chlor-alkali plants and (2) chlorine 
production plants that do not rely upon mercury cells for chlorine 
production. In December 2003 (68 FR 70949), we issued our final 
decision to delete the subcategory of the chlorine production source 
category for chlorine production plants that do not utilize mercury 
cells to produce chlorine and caustic. This action was made under our 
authority in CAA section 112(c)(9)(B)(ii), and was not challenged in a 
petition for judicial review. Nor did anyone ask us to reconsider that 
action pursuant to CAA section 307(d)(7)(B). The objection raised by 
NRDC in its petition for reconsideration of the 2003 Mercury Cell 
NESHAP was that it was not appropriate to create a mercury cell chlor-
alkali plants subcategory. According to NRDC, if the MACT floor for 
mercury emissions was determined for the chlorine production source 
category as a whole, the best-performing 12 percent of sources in the 
category would be mercury-free. In our 2008 proposal (73 FR 33273-
33274), we explained that EPA has a long history of using 
subcategorization to appropriately differentiate between types of 
emissions and/or types of operations when analyzing whether air 
pollution control technology is feasible for groups of sources. Upon 
reconsideration of this situation for mercury cell chlor-alkali plants, 
we concluded that our earlier decision to create the mercury cell 
chlor-alkali plant subcategory was sound.
6. Magnitude of Fugitive Mercury Emissions
    Prior to 2008, the uncertainty associated with fugitive mercury 
emissions from mercury cell chlor-alkali plants had long been an issue. 
Few studies had been conducted to measure these fugitive mercury 
emissions, and the studies that had been conducted were short-term and 
did not account for a range of operating and maintenance conditions. 
For around 30 years, mercury cell chlor-alkali plants had reported 
fugitive mercury emissions of 1,300 grams per day (g/day), which 
equates to around 0.5 tons per year per plant. These estimates were 
based on two limited studies conducted by EPA in the early 1970's.
    The sensitivity and concern over the actual levels of fugitive 
mercury emissions from the cell rooms was exacerbated by the inability 
of the industry to fully account for all the mercury that was added to 
the cells. In 2000, there were approximately 65 tons of mercury 
unaccounted for at the 12 mercury cell plants in operation at that 
time. This discrepancy was based on the difference between the amount 
of mercury used, as reported in the Chlorine Institute's 2001 annual 
report to EPA's Binational Toxics Strategy Mercury Workgroup,\a\ and 
the amount of mercury released to all media, as reported in the 2000 
Toxics Release Inventory, or TRI (the EPA requires industrial 
facilities to annually report on releases and transfers of certain 
toxic chemicals to a public database known as the TRI.) While industry 
representatives provided explanations for this discrepancy, they could 
not fully substantiate their theories. NRDC maintained that this 
``missing'' mercury was being emitted as fugitive emissions.
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    \a\ Binational Toxics Strategy Mercury Workgroup--Reducing 
Mercury in the Great Lakes Region. U.S. Environmental Protection 
Agency. http://www.epa.gov/reg5oair/mercury/reducing.html#regulation.
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    We recognized that the body of fugitive mercury emissions data 
could be improved. Therefore, as part of our reconsideration of the 
2003 Mercury Cell NESHAP, we collected additional information on 
fugitive mercury emissions from mercury cell chlor-alkali plants. The 
primary purpose of this effort was to address whether the fugitive 
emissions from a mercury cell chlor-alkali plant are on the order of 
magnitude of the historical assumption of 1,300 g/day, corresponding to 
0.5 tons per year (tpy) per plant, or an order of magnitude higher as 
estimated by NRDC.
    Consequently, as part of our reconsideration efforts leading the 
2008 proposal, we sponsored a test program to address the issue of the 
magnitude of the fugitive mercury emissions at mercury cell chlor-
alkali plants. In addition to this EPA test program, we also collected 
mercury emissions data from the continuous mercury monitoring systems 
installed at three mercury cell plants.
    The daily fugitive mercury emission rates extrapolated from these 
data sets ranged from around 20 to 1,300 g/day per facility. The 
average daily emission rates ranged from around 420 g/day to just under 
500 g/day per facility, with the mean of these average values being 
slightly less than 450 g/day per facility. Therefore, the information 
we obtained in the almost one million dollar study of fugitive 
emissions from mercury cell chlor-alkali plants shows that fugitive 
emissions are on the order of magnitude of the historical assumption of 
1,300 g/day or less. There was no evidence obtained during any of the 
studies that indicated that fugitive mercury emissions were at levels 
higher than 1,300 g/day. All of the studies that produced these data 
were of sufficient duration to encompass all types of maintenance 
activities. Further, the length of these studies was also sufficient to 
include emissions from a variety of process upsets, such as: Liquid 
mercury spills, leaking cells and other process equipment, and other 
process upsets.
    We also note that since 2008, the mercury cell plants with 
continuous monitoring systems and methods to estimate the flow rates 
have reported even lower mercury emissions than

[[Page 13856]]

those reported in the 2008 proposal. In 2008, these plants reported 
fugitive mercury emissions averaging around 225 g/day/plant.

D. What current legislation is related to this action?

    There is also U.S. legislation, both recently enacted and proposed, 
that has or will have an impact on these mercury chlor-alkali 
facilities. On October 14, 2008, President Bush signed the Mercury 
Export Ban Act of 2008 into law. This law bans U.S. export of elemental 
mercury (effective in 2013), requires the Department of Energy (DOE) to 
designate and manage a long-term storage facility for elemental 
mercury, and prohibits the transfer of elemental mercury by Federal 
agencies.
    Both houses of Congress are currently considering legislation that, 
if enacted, would affect this industry (S. 1428 and H.R. 2190). These 
bills would amend the Toxic Substances Control Act to prohibit the use 
of mercury at chlor-alkali facilities. The House bill would require the 
facilities to cease using mercury by 2013 if the plant chooses to close 
or by 2015 if the plant chooses to convert to non-mercury. If this 
legislation passes Congress and is signed by the President into law, we 
will evaluate the appropriate action for EPA in light of the scope and 
impact of the law.

III. Summary of Proposed Amendments

    In today's action, we are proposing two options for amending the 
Mercury Cell NESHAP. The first option (non-mercury technology option) 
would encourage the conversion to non-mercury technology by requiring 
the elimination of mercury emissions. The second option (enhanced work 
practices option) would require improvements in the work practice 
standards to reduce fugitive emissions from the cell room including the 
requirement that every facility institute a cell room monitoring 
program and implement detailed work practices. These options, along 
with the estimated impacts of each, are described below in sections 
III.A and III.B. Also included is rationale for the selection of each 
option.
    In addition to these options, we are also proposing amendments that 
would apply regardless of which option we select. These amendments are 
described in section III.C.

A. What is the non-mercury technology option (Option 1)?

1. Summary of Non-Mercury Technology Option
    This proposed option would amend the 2003 Mercury Cell NESHAP by 
prohibiting mercury emissions from existing mercury cell chlor-alkali 
plants. This would make the standard for existing sources the same as 
the current standard for new and reconstructed sources, which is 
codified at 40 CFR 63.8190(a)(1).
    Since we believe it is improbable that a mercury cell chlor-alkali 
plant can be operated without mercury emissions, we believe that this 
proposal would effectively require existing mercury cell chlor-alkali 
plants either to convert to a non-mercury technology or to cease 
production of chlorine with their current mercury cell production 
methods. However, if there are circumstances where the elimination of 
mercury emissions from an operating mercury cell plant could be 
achieved, we are interested in data and supporting information 
regarding technologies that would eliminate mercury emissions from an 
operating mercury cell facility.
    This proposed option would provide a three-year period from the 
date the final rule is published in the Federal Register to comply. To 
demonstrate compliance, each owner or operator would have to submit a 
report certifying that all mercury emissions have been eliminated 
permanently. This report would have to be submitted no later than 120 
days following the applicable compliance date.
2. Technical Information and Analyses for the non-Mercury Technology 
Option
a. Background on the 2008 Proposal and Costs Analysis
    Section 112(d)(2) of the CAA provides that emission standards for 
new or existing sources of hazardous air pollutants (HAP) shall require 
the maximum degree of reduction in emissions (including a prohibition 
on such emissions, where achievable) that EPA, taking into 
consideration the cost of achieving such emission reduction, and any 
non-air quality health and environmental impacts and energy 
requirements, determines is achievable through application of measures, 
processes, methods, systems or techniques. These may include, but are 
not limited to, measures which (A) Reduce the volume of or eliminate 
emissions through process changes, substitution of materials or other 
modifications; (B) enclose systems or processes to eliminate emissions; 
(C) collect, capture or treat such pollutants when released from a 
process, stack, storage or fugitive emission point; (D) are design, 
equipment, work practice, or operational standards; or (E) are a 
combination of the above.
    One of the claims presented in NRDC's petition for reconsideration 
of the 2003 Mercury Cell NESHAP was that EPA had not adequately 
considered non-mercury technology as a ``beyond-the-floor'' MACT 
control measure for existing sources in the original rulemaking for the 
Mercury Cell NESHAP (see section II.D.3). Further, NRDC claimed that 
the cost-effectiveness of such a requirement, in terms of the 
annualized costs of control per pound of mercury eliminated, would be 
less than EPA previously indicated was warranted for mercury emissions 
from the mercury cell subcategory.
    In response to this comment, we performed an analysis in 2008 to 
determine the capital and annual costs of requiring non-mercury 
technology (Docket Item EPA-HQ-OAR-2002-0017-0088). Specifically, this 
analysis estimated the costs and the cost-effectiveness of converting 
the existing mercury cell chlor-alkali plants to membrane cells.
    In a chlor-alkali process, an electric current is passed through a 
salt solution or brine (sodium chloride or potassium chloride), causing 
the dissociation of salt to produce chlorine gas and an alkaline 
solution (sodium hydroxide or potassium hydroxide). Hydrogen gas is 
also produced as a by-product. This dissociation occurs in chlor-alkali 
``cells,'' where the chloride ions stripped from the brine flow to the 
anode to form the chlorine product, and the sodium/potassium ions flow 
to the cathode, where they form the hydroxide product and hydrogen. In 
a mercury cell, the cathode is a flowing layer of liquid mercury. The 
sodium/potassium ions form an amalgam with the mercury, which is routed 
to a decomposer. In the decomposer, the amalgam is reacted with water 
to form the hydroxide product and hydrogen. The mercury is then 
recycled.
    In a membrane process, a polymer membrane is used to separate the 
anode products from the cathode products. The chloride ions (at the 
anode) and the hydrogen (at the cathode) are kept apart by this 
membrane, which allows the sodium ions to pass into the cathodic 
compartment and react to form the hydroxide.
    Conversion from mercury cells to membrane cells is technically 
possible at all existing mercury cell chlor-alkali plants, although the 
amount of significant changes will vary for each individual situation. 
There are parts of the mercury cell plant that could be re-used after 
conversion to the membrane cells. It could be possible to use the 
existing cell room building for the new

[[Page 13857]]

membrane cells, provided that the building is in good condition. 
However, constructing a new membrane cell room building would reduce 
the production losses as the mercury cells could continue to operate 
longer throughout the conversion process. Other equipment and processes 
that possibly could be retained include the rectifiers, the hydrogen 
treatment system, and the chlorine compression and liquefaction 
process.
    The mercury cells themselves (and associated decomposers) would 
have to be replaced by membrane cells. Membrane cells need purer brine 
than mercury cells, so a completely new brine purification system would 
likely be needed. Other equipment that would commonly need to be 
totally replaced include the sodium/potassium hydroxide concentration 
unit and evaporation system, the chlorine gas drying and chlorine gas 
absorption units, the power supply unit (excluding the rectifiers), 
pumps, instruments, and much of the piping.
    In performing the cost analysis, we used data from readily-
available sources of information. In our 2008 proposal, we estimated 
that the average cost-effectiveness associated with conversion to non-
mercury technology would be approximately $14,000 per pound of mercury 
emissions eliminated. Further, our 2008 analysis estimated the average 
capital cost of conversion for one mercury cell chlor-alkali facility 
in the U.S. to be approximately $68 million per plant. The average 
annualized facility costs for this conversion were estimated to be 
approximately $7.5 million per plant. Nationwide, the capital cost was 
estimated to be nearly $340 million and the annual costs around $38 
million for the five facilities in operation at the time. We estimated 
that this cost impact would be approximately 11 percent of revenues. As 
a result of these analyses, we proposed in 2008 to reject conversion to 
non-mercury technology as a beyond-the-floor control requirement.
b. Summary of Comments Received on the 2008 Cost Analysis
    One environmental organization disagreed with both our technical 
analysis and resulting conclusions in the 2008 proposal, and claimed 
that the switch to non-mercury technology would be economical. The 
commenter said that, in the 2008 analysis, EPA considered only the 
costs associated with the conversion, without considering the net cost 
or economic benefit. The commenter maintained that it is likely that 
any plant that converts will experience substantial benefits, including 
an increase in energy efficiency between 25 and 35 percent. The 
commenter claimed that this increased energy efficiency could amount to 
substantial savings. Furthermore, the commenter pointed out that 
membrane cells are smaller than mercury cells, which would allow plants 
to increase their chlorine capacity, leading to increased sales and 
additional energy savings due to the additional capacity. The commenter 
submitted a report that it prepared which provided individualized cost 
analyses for each of the remaining mercury cell chlor-alkali plants 
(Docket Item EPA-HQ-OAR-2002-0017-0094.3). According to the commenter, 
its report proves that conversion would pay for the majority of its 
cost in five years. Thus, the commenter concluded that EPA's proposal 
was incorrect to suppose a ``high cost impact'' of conversion to non-
mercury technology, and claimed that EPA should heed the evidence that 
conversion is not only economically feasible but beneficial and mandate 
conversion to non-mercury technology as a beyond-the-floor control 
requirement.
c. 2009 Revised Cost Analyses
    In the second quarter of 2009, we performed a revised beyond-the-
floor cost analysis to address comments received on the 2008 proposed 
amendments described above. The impacts, particularly the savings and 
benefits, of a forced conversion to membrane cells might not be 
universally applicable since the conditions and benefits are not the 
same at every facility. We do agree, however, that these facilities 
would achieve some savings associated with lower electricity and the 
elimination of environmental compliance costs for water treatment, 
waste disposal, and mercury monitoring, and that items should be added 
to the EPA cost analyses. Therefore, without assuming that a uniform 
energy savings would accrue to every facility currently operating, we 
updated our analysis to consider the energy costs savings. We also 
amended our analysis to include savings from the elimination of waste 
treatment, waste disposal, and mercury monitoring. On June 5, 2009, we 
developed a revised and updated analysis of conversion costs for the 
industry. This analysis was posted as a memorandum in the docket 
(Docket Item EPA-HQ-OAR-2002-0017-0098).
    Subsequent to the posting of the June 5, 2009, memorandum, industry 
representatives provided comments on the revised analysis (Docket Items 
EPA-HQ-OAR-2002-0017-0100, 0101, 0102, and 0103). One of the major 
comments raised by industry representatives on our revised analysis 
regarded the 2006 mercury emission levels used to estimate the cost-
effectiveness of conversion to non-mercury technology. The industry 
representatives stated that these data reflected emission levels 
considerably higher than their more recently reported emissions. In 
addition, the industry representatives stated that the capital and 
annual costs in our 2008 analysis were underestimated. The industry 
representatives also believed that the annual energy savings were 
overstated because these savings did not take into account the 
additional energy and fuel that would be needed to concentrate the 
caustic by-product obtained using membrane cells, which is produced at 
33 percent purity, to the 50 percent purity obtained using the mercury 
cell process. The industry representatives also commented that the June 
2009 cost analysis: (1) Underestimated the mercury storage costs; (2) 
used an interest rate that was in practicality too low for calculating 
the capital recovery factor; (3) erroneously used information from a 
European study to estimate the savings due to the elimination of the 
mercury process that were not applicable to the U.S.; and (4) did not 
consider decommissioning costs.
    Consequently, we considered the industry comments and, in instances 
where specific relevant data were provided or available, we 
incorporated the information into another revised cost analysis dated 
September 15, 2009 (Docket Item EPA-HQ-OAR-2002-0017-0105). The 
September 2009 updated cost analysis for conversion to membrane 
technology estimated that the costs to convert the four remaining 
mercury cell plants to be nearly $336 million in total capital costs 
and almost $36 million per year in total annual costs, considering 
electricity and other savings. The cost-effectiveness of conversion 
based on this September 2009 analysis was about $66,000 per pound of 
mercury.
    In this analysis, we did not add certain highly variable costs 
mentioned by the industry commenter that could potentially be incurred 
by a plant when making a change to non-mercury technology. These 
variable costs include losses in production, building replacement, 
plant decommissioning, and many others that are likely to be highly 
variable from facility to facility. We believe that the magnitude of 
these costs, although very likely to occur for most facilities, would 
depend on factors such as the condition of the existing buildings, 
available space on the facility

[[Page 13858]]

site to erect a new cell room building to avoid production losses, and 
possibly other unknown factors. We also received comments on the 
revised 2009 cost analyses from the same environmental organization 
that provided comments on the 2008 cost analysis. The complete comments 
can be found in the docket (Docket EPA-HQ-OAR-2002-0017). The 
environmental organization commenter stated that the capital costs 
estimated by EPA are too high and the EPA analysis did not uniformly 
account for expansion during conversion. In addition, the commenter 
stated that the regression formula of cost vs. capacity used to 
establish an equation is incorrect since there is no relationship 
between capital costs and capacity when considering the full set of 
relevant data rather than just recent U.S. facilities. Also, the 
commenter stated that the capital costs should be annualized over a 
longer period than the 15 years used in the analysis since 30 years is 
a more likely useful life.
    The environmental commenter also made the following points: The 
energy savings estimated by EPA are too low, since higher reductions in 
electricity consumption are common place; the EPA cost estimate for 
producing steam double-counted the cost associated with concentrating 
caustic and did not account for the fact the steam could be obtained 
on-site without expense; the cost savings for environmental compliance 
avoided are underestimated; and the decommissioning costs are already 
included in estimates of conversion since many factories include the 
cost of dismantling and decommission in the reported cost of 
conversion.
    In addition, the commenter recommended that in evaluating the 
costs, EPA should use the average sales per establishment instead of 
the average sales per ton of chlorine capacity because the commenter 
believes that the latter term grossly underestimates sales. The 
commenter also stated that societal costs of conversion to non-mercury 
technology should be considered (Docket Item EPA-HQ-OAR-2002-0017-
0104). The commenter also believed that the industry-supplied emission 
estimates are not reliable and are likely underestimated, thus 
overestimating the costs per pound of mercury emissions prevented. 
Finally, the commenter stated that EPA's overall conclusion does not 
reflect the real world since over 100 plants have made the conversion 
globally and at least five chlor-alkali facilities expected or received 
a complete repayment from their investment within five years.
d. Revised Cost Analysis for This Proposal
    Many of the comments we received on the September 2009 cost 
analysis were considered and used to estimate costs that represent the 
outcome of a potential conversion to non-mercury technology. In this 
revised analysis, we recognize that there are significant uncertainties 
in estimating these costs, and consider ranges of the potential costs 
(and savings) associated with each cost element. For each element, we 
do select a ``best estimate'' to allow the estimation of capital and 
annual costs of conversion for each facility. The results of this 
analysis are summarized below in section III.A.2.a of this document, 
and a memorandum that documents the details of this cost analysis can 
be found in the docket. We are specifically requesting comment on our 
analysis, along with additional facility-specific data, to allow a 
refinement of the analysis.
3. Estimated Impacts of the Non-Mercury Technology Option
a. Environmental and Energy Impacts
    We estimate that the total mercury emissions from the four mercury 
cell operating facilities to be around 640 pounds per year. The non-
mercury technology option would reduce mercury emissions by this 
amount. These four facilities reported almost 2,000 additional pounds 
per year of on-site and off-site mercury releases to non-air media. 
These releases, which are primarily in the form of hazardous wastes, 
would be eliminated in the longer term, with consequential benefits for 
non-air quality related health and environmental values. The potential 
problems associated with the handling and continuous management of over 
1,200 tons of virgin mercury that is used in the cells at these four 
chlor-alkali plants would also be eliminated. In addition, 
approximately two tons of this mercury was reported by the industry as 
``unaccounted'' in 2008. This non-mercury technology option would 
eliminate the unaccounted mercury as well.
    The membrane cell chlor-alkali process requires less energy than 
the mercury cell process. Therefore, assuming that all four existing 
mercury cell chlor-alkali plants convert to membrane cells, there would 
be a savings in energy. We estimate that this savings would be around 
350,000 megawatt hours per year, which is approximately equivalent to 
the energy produced annually by a 40 megawatt power plant. The emission 
reductions associated with this reduced electricity generation are 
estimated to be 68 tons per year of fine particulate matter 
(PM2.5), 5 tons per year of volatile organic compounds 
(VOC), 0.1 tons per year of ammonia (NH3) 0.008 tons per 
year of mercury, and 287,000 tons per year of carbon dioxide 
(CO2). Since nitrogen oxide (NOx) and sulfur dioxide 
(SO2) are covered by capped emissions trading programs, we 
are only estimating PM2.5 emission reductions from reduced 
electricity demand.
    In the short term, the conversion of these facilities would result 
in the need to dispose of mercury-contaminated wastes. While there is 
considerable uncertainty in quantifying the amount of these wastes, we 
estimate that there could be around 7,000 cubic meters of mercury 
contaminated waste generated that could contain around 6 tons of 
mercury.
    As stated above, over 1,200 tons of virgin or process mercury from 
the facilities would need to be dealt with whether the facilities close 
or convert to non-mercury technology. The Mercury Export Ban Act of 
2008, discussed earlier, would prohibit this mercury from being 
exported. Therefore, this mercury would need to be stored or sold 
domestically. Since mercury is a hazardous substance, it cannot be 
stored without a permit; hence, DOE is planning to build a Federal 
facility to accommodate the excess mercury that results from the export 
ban.
b. Cost Impacts
    The estimated costs for the non-mercury technology option, assuming 
that all four currently operating mercury cell chlor-alkali plants 
convert to membrane cell technology, include total capital costs of 
approximately $300 million dollars, with individual plant capital costs 
ranging from a low of $28 million to a high of approximately $160 
million. Our analysis does show that, in the hypothetical situation 
that a single plant could incur the lowest possible costs while also 
realizing the highest possible energy and other savings, there could be 
an overall cost savings in the conversion from mercury cells to 
membrane cells. However, we do not believe that this scenario is 
realistic. Using more conservative assumptions, our best estimate is 
that the average annual costs would be between $800,000 and $7 million 
per year per plant. The total annual costs are estimated to be $13 
million per year. Based on these costs and the estimated mercury 
emissions for each facility, the cost-effectiveness, in terms of 
annualized costs per pound of mercury eliminated, is approximately 
$20,000 per pound for the industry, with a range

[[Page 13859]]

of around $13,000 to $31,000 per pound for the individual facilities.
c. Economic Impacts
    In addition to cost analyses, we also conducted an economic 
analysis of the impacts of the option to require non-mercury 
technology. A regulatory impact analysis (RIA) was performed for this 
non-mercury technology option. A report that documents the EIA methods 
and results can be found in the docket (EPA-HQ-OAR-2002-0017).
    Although individual plant information would be the best method to 
assess the true economic impacts of the non-mercury technology option, 
detailed information for this industry was not publicly available. As a 
result, we relied on parent company information provided in company 
annual reports (e.g., form 10-K), local press and industry trade 
publications, and company Web sites.
    There are many aspects of the cost estimate for conversion that are 
unknown or difficult to assess. While we believe that we have evaluated 
the conversion cost information available to us at the time of this 
action, the true costs may vary considerably. However, variation in 
engineering costs is not expected to cause a significant difference in 
the general conclusions of the RIA.
    We performed an analysis that compared the annual conversion costs 
to sales (cost to sales ratio, or CSR). We estimated that the CSR of 
ASHTA, the one small business in this industry, would range from one to 
two percent using the costs presented in this proposal. The other three 
plants are owned by large parent companies with significant company-
wide sales. As a result, the CSRs for these large parent companies are 
below one percent. When single plant sales were considered, the CSRs 
for the mercury cell chlor-alkali plants owned by large parent 
companies ranged from 4 to 9 percent.
    We also analyzed industry profitability effects by comparing the 
annual conversion costs to reported industry margins for a 
representative electrochemical unit. This analysis confirms the results 
of the sales comparisons that plant conversion costs will likely have 
an economically significant effect. Conversion costs could reduce the 
margins by 10 to 20 percent.
    This non-mercury technology option would force owners of mercury 
chlor-alkali plants to make an investment decision based on the costs 
of conversion as opposed to the future benefits of the conversion. This 
non-mercury technology option could lead to plant shutdowns that would 
involve adjustment costs for people working at the affected plants. 
Affected plants may also have strong links with other firms or 
downstream markets; as a result, secondary consequences of the 
regulation are important to consider. We are interested in receiving 
comments related to the downstream impacts of potential mercury cell 
plant shutdowns. In particular, we are interested in the impact on the 
potassium carbonate market and the potential impact on the 
competitiveness of the potassium hydroxide market.
    Many owners have converted from mercury cell chlor-alkali 
technologies in Europe and the U.S., while other mercury cell chlor-
alkali plant owners have concluded the investment decision was 
currently not in their company's interest given their assessment of 
future economic conditions, and have shutdown their mercury cell chlor-
alkali plants instead. Since 2003, three U.S. mercury cell chlor-alkali 
facilities have closed and three have converted. Specifically, the 
Occidental Chemical mercury cell chlor-alkali facilities in Delaware 
City, Delaware, Muscle Shoals, Alabama, and Deer Park, Texas, have 
closed; while the PPG facility in Lake Charles, Louisiana, the ERCO 
facility in Port Edwards, Wisconsin, and the Pioneer chlor-alkali 
facility (now owned by Olin) in St. Gabriel, Louisiana, have converted 
to membrane cells.
    We do not have sufficient data to predict whether individual 
companies would choose to convert or close the affected mercury cell 
chlor-alkali plants. However, the data obtained in this study suggests 
that plant closure may be a preferred alternative to meet the 
requirements of the non-mercury technology option for one or more of 
the mercury cell chlor-alkali plants.
    As noted above, individual plant information was not available to 
perform a refined analysis of whether these mercury cell plants would 
likely convert to non-mercury technology or close. We are specifically 
requesting comment on our analysis, along with facility-specific data, 
to allow a refinement of the analysis for this non-mercury technology 
option.
d. Benefits
    Mercury is a highly neurotoxic contaminant that enters the food web 
as a methylated compound, methylmercury (U.S. EPA, 2008c). The 
contaminant is concentrated in higher trophic levels, including fish 
eaten by humans. Mercury is emitted to the air from various man-made 
and natural sources. These emissions transport through the atmosphere 
and eventually deposit to land or water bodies. This deposition can 
occur locally, regionally, or globally, depending on the form of 
mercury emitted and other factors such as the weather. The form of 
mercury emitted from these sources is estimated to be about 98 percent 
elemental and two percent divalent mercury. Gaseous elemental mercury 
can be transported very long distances, even globally, to regions far 
from the emissions source (becoming part of the global ``pool'') before 
deposition occurs. Inorganic ionic (divalent) mercury has a shorter 
atmospheric lifetime and can deposit to land or water bodies closer to 
the emissions source. Furthermore, elemental mercury in the atmosphere 
can undergo transformation into ionic mercury, providing a significant 
pathway for deposition of emitted elemental mercury.
    This source category emitted about 640 pounds of mercury in the air 
in 2008 in the U.S. Based on the EPA's National Emission Inventory, 
about 103 tons of mercury were emitted from all anthropogenic sources 
in the U.S. in 2005. Moreover, the United Nations has estimated that 
about 2,100 tons of mercury were emitted worldwide by anthropogenic 
sources in 2005. We believe that total mercury emissions in the U.S. 
and globally in 2008 were about the same magnitude in 2005. Therefore, 
we estimate that in 2008, these sources emitted about 0.3 percent of 
the total anthropogenic mercury emissions in the U.S. and about 0.02 
percent of the global emissions. Overall, the non-mercury technology 
option (Option 1) would directly reduce mercury emissions by about 640 
pounds per year from current levels as well as an estimated 16 pounds 
per year indirectly through reduced electricity generation, and, 
therefore, contribute to reductions in mercury exposures and health 
effects. Due to data, time, and resource limitations, we were unable to 
model mercury dispersion, deposition, methylation, bioaccumulation in 
fish tissue, and human consumption of mercury-contaminated fish that 
would be needed in order to estimate the human health benefits from 
reducing mercury emissions.
    Potential exposure routes to mercury emissions include both direct 
inhalation and consumption of fish containing methylmercury. For 
elemental mercury, inhalation is the most direct exposure route of 
potential concern. Effects on the nervous system appear to be the most 
sensitive toxicological endpoint and can include tremors, nervousness, 
insomnia, neuromuscular changes (such as weakness, muscle atrophy, and 
muscle

[[Page 13860]]

twitching), and headaches.\b\ In the U.S., the primary route of human 
exposure to mercury emissions from industrial sources is generally 
indirectly through the consumption of fish containing methylmercury. As 
described above, mercury that has been emitted to the air eventually 
settles into water bodies or onto land where it can either move 
directly or be leached into waterbodies. Once deposited, certain 
microorganisms can change it into methylmercury, a highly toxic form 
that builds up in fish, shellfish and animals that eat fish. 
Consumption of fish and shellfish are the main sources of methylmercury 
exposure to humans. Methylmercury builds up more in some types of fish 
and shellfish than in others. The levels of methylmercury in fish and 
shellfish vary widely depending on what they eat, how long they live, 
and how high they are in the food chain. Most fish, including ocean 
species and local freshwater fish, contain some methylmercury. For 
example, in recent studies by EPA and the U.S. Geological Survey (USGS) 
of fish tissues, every fish sampled from 291 streams across the country 
contained some methylmercury (Scudder, 2009).\c\
---------------------------------------------------------------------------

    \b\ Integrated Risk Information System (IRIS). U.S. 
Environmental Protection Agency. http://www.epa.gov/ncea/iris/subst/0370.htm.
    \c\ Scudder, B.C., Chasar, L.C., Wentz, D.A., Bauch, N.J., 
Brigham, M.E., Moran, P.W., and Krabbenhoft, D.P. 2009. Mercury in 
fish, bed sediment, and water from streams across the United States, 
1998-2005: U.S. Geological Survey Scientific Investigations Report 
2009-5109, p. 74.
---------------------------------------------------------------------------

    The majority of fish consumed in the U.S. are ocean species. The 
methylmercury concentrations in ocean fish species are primarily 
influenced by the global mercury pool. However, the methylmercury found 
in local fish can be due, at least partly, to mercury emissions from 
local sources. Research shows that most people's fish consumption does 
not cause a mercury-related health concern. However, certain people may 
be at higher risk because of their routinely high consumption of fish 
(e.g., Tribal and other subsistence fishers and their families who rely 
heavily on fish for a substantial part of their diet). It has been 
demonstrated that high levels of methylmercury in the bloodstream of 
unborn babies and young children may harm the developing nervous 
system, making the child less able to think and learn. Moreover, 
mercury exposure at high levels can harm the brain, heart, kidneys, 
lungs, and immune system of people of all ages.
    Several studies suggest that the methylmercury content of fish may 
reduce these cardio-protective effects of fish consumption. Some of 
these studies also suggest that methylmercury may cause adverse effects 
to the cardiovascular system. For example, the National Research 
Council (NRC) (2000) review of the literature concerning methylmercury 
health effects took note of two epidemiological studies that found an 
association between dietary exposure to methylmercury and adverse 
cardiovascular effects.\d\ Moreover, in a study of 1,833 males in 
Finland aged 42 to 60 years, Solonen et al. (1995) observed a 
relationship between methylmercury exposure via fish consumption and 
acute myocardial infarction (AMI or heart attacks), coronary heart 
disease, cardiovascular disease, and all-cause mortality.\e\ The NRC 
also noted a study of 917 seven year old children in the Faroe Islands, 
whose initial exposure to methylmercury was in utero although post 
natal exposures may have occurred as well. At seven years of age, these 
children exhibited an increase in blood pressure and a decrease in 
heart rate variability.\f\ Based on these and other studies, NRC 
concluded in 2000 that, while ``the data base is not as extensive for 
cardiovascular effects as it is for other end points (i.e., neurologic 
effects) the cardiovascular system appears to be a target for 
methylmercury toxicity.'' \g\
---------------------------------------------------------------------------

    \d\ National Research Council (NRC). 2000. Toxicological Effects 
of Methylmercury. Committee on the Toxicological Effects of 
Methylmercury, Board on Environmental Studies and Toxicology. 
National Academies Press. Washington, DC. pp. 168-173.
    \e\ Salonen, J.T., Seppanen, K. Nyyssonen et al. 1995. ``Intake 
of mercury from fish lipid peroxidation, and the risk of myocardial 
infarction and coronary, cardiovascular and any death in Eastern 
Finnish men.'' Circulation, 91 (3):645-655.
    \f\ Sorensen, N, K. Murata, E. Budtz-Jorgensen, P. Weihe, and 
Grandjean, P., 1999. ``Prenatal Methylmercury Exposure as a 
Cardiovascular Risk Factor at Seven Years of Age'', Epidemiology, 
pp. 370-375.
    \g\ National Research Council (NRC). 2000. Toxicological Effects 
of Methylmercury. Committee on the Toxicological Effects of 
Methylmercury, Board on Environmental Studies and Toxicology. 
National Academies Press. Washington, DC. p. 229.
---------------------------------------------------------------------------

    Since publication of the NRC report, there have been some 30 
published papers presenting the findings of studies that have examined 
the possible cardiovascular effects of methylmercury exposure. These 
studies include epidemiological, toxicological, and toxicokinetic 
investigations. Over a dozen review papers have also been published. If 
there is a causal relationship between methylmercury exposure and 
adverse cardiovascular effects, then reducing exposure to methylmercury 
would result in public health benefits from reduced cardiovascular 
effects.
    In early 2010, EPA sponsored a workshop in which a group of experts 
were asked to assess the plausibility of a causal relationship between 
methylmercury exposure and cardiovascular health effects and to advise 
EPA on methodologies for estimating population level cardiovascular 
health impacts of reduced methylmercury exposure. The report from that 
workshop is in preparation.
    The primary benefit of the non-mercury technology option would be 
the reduction of mercury emissions from these sources, as discussed 
above. Due to data and resource limitations, we were unable to monetize 
the benefits associated with reducing mercury emissions for this non-
mercury technology option. However, we estimate the monetized energy 
co-benefits of the non-mercury technology option to be $22 million to 
$43 million (2007$, 3 percent discount rate) in the implementation year 
(2013). The monetized co-benefits of the regulatory action at a 7 
percent discount rate are $14 million to $33 million (2007$). Higher or 
lower co-benefits estimates are plausible using other assumptions.\h\ A 
summary of the monetized energy co-benefits estimates at discount rates 
of 3 percent and 7 percent is in Table 1 of this preamble.
---------------------------------------------------------------------------

    \h\ Roman et al, 2008. ``Expert Judgment Assessment of the 
Mortality Impact of Changes in Ambient Fine Particulate Matter in 
the U.S.'' Environ Sci Technol, 42, 7, 2268-2274.

 Table 1--Summary of the Monetized Co-Benefits Estimates for the Proposed Non-Mercury Technology Option in 2013
                                             (Millions of 2007$) \1\
----------------------------------------------------------------------------------------------------------------
                                                                 Monetized co-benefits    Monetized co-benefits
              Pollutant                   Estimated emission   -------------------------------------------------
                                              reductions           (3% Discount rate)       (7% Discount rate)
----------------------------------------------------------------------------------------------------------------
Mercury \2\..........................  656 pounds per year....  N/A....................  N/A
Direct PM2.5.........................  68 tons per year.......  $15 to $37.............  $14 to $33

[[Page 13861]]

 
CO2 3                                  287,000 tons per year..  $6.5...................  $6.5
Grand Total..........................  .......................  $22 to $43.............  $21 to $40
----------------------------------------------------------------------------------------------------------------
\1\ All estimates are for the implementation year (2013), and are rounded to two significant figures so numbers
  may not sum across rows. All fine particles are assumed to have equivalent health effects.
\2\ Includes an estimated 16 pounds per year of mercury emission reductions from energy savings.
\3\ CO2-related benefits were calculated using the social cost of carbon (SCC), which is discussed further in
  the RIA. The net present value of reduced CO2 emissions is calculated differently than other benefits. The
  same discount rate used to discount the value of damages from future emissions (SCC at 5, 3, 2.5 percent) is
  used to calculate net present value of SCC for internal consistency. This table shows monetized CO2 co-
  benefits at discount rates of 3 and 7 percent that were calculated using the global average SCC estimate at a
  3 percent discount rate because the interagency workgroup on this topic deemed this marginal value to be the
  central value. In the RIA, we also provide the monetized CO2 co-benefits using discount rates of 5 percent
  (average), 2.5 percent (average), and 3 percent (95th percentile).

    These co-benefits estimates represent the total monetized human 
health benefits for populations exposed to less PM2.5 in 
2013 from emission reductions due to the decreased electricity demand. 
These co-estimates are calculated as the sum of the monetized value of 
avoided premature mortality and morbidity associated with reducing a 
ton of PM2.5 precursor emissions. To estimate the human 
health benefits derived from reducing PM2.5 precursor 
emissions, we used the general approach and methodology laid out in 
Fann, Fulcher, and Hubbell (2009).\i\
---------------------------------------------------------------------------

    \i\ Fann, N., C.M. Fulcher, B.J. Hubbell. 2009. ``The influence 
of location, source, and emissions type in estimates of the human 
health benefits of reducing a ton of air pollution.'' Air Qual Atmos 
Health (2009) 2:169-176.
---------------------------------------------------------------------------

    To generate the benefit-per-ton estimates, we used a model to 
convert emissions of direct PM2.5 and PM2.5 
precursors into changes in ambient PM2.5 levels and another 
model to estimate the changes in human health associated with that 
change in air quality. The PM2.5 benefit-per-ton estimates 
used for this rule assume a certain geographic distribution of 
emissions reductions, population density, meteorology, exposure and 
baseline health incidence rates. To the extent that these attributes 
differ greatly from those of the Mercury Chlor Alkali facilities, the 
use of these $/ton values in combination with emission changes at MCL 
facilities to estimate PM2.5 co-benefits may lead to higher 
or lower benefit estimates than if these co-benefits were estimated 
using site-specific data. Finally, the monetized health co-benefits 
were divided by the emissions reductions to create the benefit-per-ton 
estimates. These models assume that all fine particles, regardless of 
their chemical composition, are equally potent in causing premature 
mortality because there is no clear scientific evidence that would 
support the development of differential effects estimates by particle 
type.
    Direct PM is the only PM2.5 precursor we are estimating 
for the non-mercury technology option. For context, it is important to 
note that the magnitude of the PM co-benefits is largely driven by the 
concentration response function for premature mortality. Experts have 
advised EPA to consider a variety of assumptions, including estimates 
based both on empirical (epidemiological) studies and judgments 
elicited from scientific experts, to characterize the uncertainty in 
the relationship between PM2.5 concentrations and premature 
mortality. For this non-mercury technology option we cite two key 
empirical studies, one based on the American Cancer Society cohort 
study \j\ and the extended Six Cities cohort study.\k\ In the RIA for 
this non-mercury technology option, which is available in the docket, 
we also include co-benefits estimates derived from expert judgments and 
other assumptions.
---------------------------------------------------------------------------

    \j\ Pope et al, 2002. ``Lung Cancer, Cardiopulmonary Mortality, 
and Long-term Exposure to Fine Particulate Air Pollution.'' Journal 
of the American Medical Association 287:1132-1141.
    \k\ Laden et al, 2006. ``Reduction in Fine Particulate Air 
Pollution and Mortality.'' American Journal of Respiratory and 
Critical Care Medicine. 173: 667-672.
---------------------------------------------------------------------------

    EPA strives to use the best available science to support our 
benefits analyses. We recognize that interpretation of the science 
regarding air pollution and health is dynamic and evolving. After 
reviewing the scientific literature and recent scientific advice, we 
have determined that the no-threshold model is the most appropriate 
model for assessing the mortality benefits associated with reducing 
PM2.5 exposure. Consistent with this recent advice, we are 
replacing the previous threshold sensitivity analysis with a new 
``Lowest Measured Level'' (LML) assessment. While a LML assessment 
provides some insight into the level of uncertainty in the estimated PM 
mortality benefits, EPA does not view the LML as a threshold and 
continues to quantify PM-related mortality impacts using a full range 
of modeled air quality concentrations.
    Most of the estimated PM-related benefits in this non-mercury 
technology option would accrue to populations exposed to higher levels 
of PM2.5. Using the Pope et al. (2002) study, 85 percent of 
the population is exposed at or above the LML of 7.5 [mu]g/m\3\. Using 
the Laden et al. (2006) study, 40 percent of the population is exposed 
above the LML of 10 [mu]g/m\3\. It is important to emphasize that we 
have high confidence in PM2.5-related effects down to the 
lowest LML of the major cohort studies. This fact is important, because 
as we estimate PM-related mortality among populations exposed to levels 
of PM2.5 that are successively lower, our confidence in the 
results diminishes. However, our analysis shows that the great majority 
of the impacts occur at higher exposures. This analysis does not 
include the type of detailed uncertainty assessment found in the 2006 
PM2.5 National Ambient Air Quality Standard (NAAQS) 
Regulatory Impact Analysis (RIA) because we lack the necessary air 
quality input and monitoring data to run the benefits model. In 
addition, we have not conducted any air quality modeling for this rule. 
The 2006 PM2.5 NAAQS benefits analysis \l\ provides an 
indication of the sensitivity of our results to various assumptions.
---------------------------------------------------------------------------

    \l\ U.S. Environmental Protection Agency, 2006. Final Regulatory 
Impact Analysis: PM2.5 NAAQS. Prepared by Office of Air 
and Radiation. October. Available on the Internet at http://www.epa.gov/ttn/ecas/ria.html.
---------------------------------------------------------------------------

    It should be emphasized that the monetized co-benefits estimates 
provided above do not include benefits from several important benefit 
categories, including reducing HAP

[[Page 13862]]

emissions, ecosystem effects, and visibility impairment. The primary 
benefit of this non-mercury technology option is the reduction of 
mercury emissions from these sources. Due to data and resource 
limitations, we were unable to model mercury dispersion, deposition, 
methylation, bioaccumulation in fish tissue, and human consumption of 
mercury-contaminated fish that would be needed in order to estimate the 
human health benefits from reducing mercury emissions. Although we do 
not have sufficient information or modeling available to provide 
monetized estimates for this non-mercury technology option, we include 
a qualitative assessment of these other effects in the RIA for the non-
mercury technology option, which is available in the docket.
    The annualized social costs of this non-mercury technology option 
are estimated to be $13 million (2007$, 7 percent discount rate) in 
2013. The combined monetized energy co-benefits are $22 million to $43 
million (2007$, 3 percent discount rate) and $21 million to $40 million 
(2007$, 7 percent discount rate) for 2013. Thus, net benefits of the 
non-mercury technology option are estimated at $9 million to $30 
million (2007$, 3 percent discount rate) and $8 million to $27 million 
(2007$, 7 percent discount rate) in 2013. EPA believes that the non-
monetized mercury benefits and the energy co-benefits of the non-
mercury technology option are likely to exceed the costs even when 
taking into account the uncertainties in the cost and benefit 
estimates.
4. Rationale for Selection of the Non-Mercury Technology Option
    While the results of these additional analyses were that the costs 
and cost-effectiveness values decreased from those estimated in our 
2008 analysis, there is still some uncertainty regarding numerous 
facets of the cost analysis. Since the lower estimates of potential 
costs show that conversion to non-mercury technology may be a 
reasonable investment action in the long term, we are proposing this 
supplemental amendment to request a complete set of comments on the 
costs presented here in order to prepare a final cost analysis to 
support or not support the non-mercury technology option. Once all 
comments are received, we will re-evaluate whether or not these costs 
constitute an unreasonably high cost impact given the benefits of 
eliminating all mercury emissions to public health, the environment, 
and to energy use.
    We gave serious consideration to the comments we received that 
stated the use of mercury in chlor-alkali plants is unnecessary since 
over 95 percent of the chlorine produced in the U.S. is already 
produced using mercury-free technology. Forcing these plants to switch 
to mercury-free technology would eliminate approximately 0.5 tons of 
mercury released per year.
    In the 2008 proposal, we rejected the conversion to non-mercury 
technology as a beyond-the floor option because of the high cost 
impacts. The total annual costs estimated at that time were around $38 
million, or around $7.5 million per facility on average for each of the 
five facilities operating at that time. The revised cost analysis 
described above estimates total annual costs of around $13 million, 
which averages to just over $3 million per facility. Therefore, the 
current estimated conversion costs are around 60 percent lower than 
those driving our decision in 2008.
    With regard to cost-effectiveness, we stated in the original 
proposal of the Mercury Cell NESHAP Standard in 2002 (67 FR 44683) that 
we considered the additional mercury emission reduction achieved by the 
beyond-the-floor option for hydrogen by-product vents and end-box 
ventilation systems to be warranted at an incremental cost-
effectiveness of $9,000 per pound of mercury emission reduction. We did 
not indicate that this cost-effectiveness level represented an upper 
end of acceptability, and in other contexts, such as the Clean Air 
Mercury Rule (70 FR 28606, 05/18/2005),\m\ we have found even larger 
cost-effectiveness factors to be reasonable. Similarly, in our 2008 
proposal of amendments, we did not conclude that a cost-effectiveness 
value of $14,000 per pound of mercury emission reduction was 
unacceptable, as this was one of several cost and economic factors 
considered that led to our conclusion regarding the high cost impact of 
the beyond-the-floor option of forced conversion.
---------------------------------------------------------------------------

    \m\ On March 29, 2005, EPA published a final rule (70 FR 15994) 
entitled ``Revision of December 2000 Regulatory Finding on the 
Emissions of Hazardous Air Pollutants From Electric Utility Steam 
Generating Units and the Removal of Coal- and Oil-Fired Electric 
Utility Steam Generating Units from the Section 112(c) List (Section 
112(n) Revision Rule).'' Following that final action, the 
Administrator received two petitions for reconsideration. In 
response to those petitions, EPA announced (Federal Register, Vol. 
70, October 28, 2005, p. 62200) the reconsideration of certain 
aspects of the Section 112(n) Revision Rule, but these aspects did 
not include costs related to mercury control or cost-effectiveness.
---------------------------------------------------------------------------

    Historically, EPA has not established a clear cost-effectiveness 
level for mercury reductions that are considered acceptable. In fact, 
we have rejected regulatory alternatives for mercury with cost-
effectiveness values of $5,000 per pound, and accepted regulatory 
strategies with estimated cost-effectiveness values of $39,000 per 
pound, in the case of the Clean Air Mercury Rule.\n\ Obviously, when 
making decisions regarding regulatory approaches to achieve mercury 
reductions, we have looked at cost in conjunction with many other 
factors to assess the reasonableness of possible control strategies.
---------------------------------------------------------------------------

    \n\ The costs of complying with CAMR as a whole are discussed 
briefly in the preamble to the final rule [Federal Register, Vol. 
70, No. 95, May 18, 2005, pp. 28606-28700. Standards of Performance 
for New and Existing Stationary Sources: Electric Utility Steam 
Generating Units (40 CFR Parts 60, 72, and 75)], and in more detail 
in two items in the two air dockets for the CAMR rule: EPA Office of 
Research and Development's White Papers ``Control of Mercury 
Emissions from Coal Fired Electric Utility Boilers.'' Docket ID No. 
OAR-2002-0056 and Docket ID No. A-92-55.
---------------------------------------------------------------------------

    We also recognize that the mercury cell technology is an outdated 
technology that has been largely phased out in the U.S. even without a 
mercury emissions prohibition and even with the high costs of the 
conversion process. While the economic analysis suggests significant 
adverse economic impacts could occur if all four plants closed rather 
than convert to non-mercury technology, we believe that it is possible 
that one potential outcome of this proposed rule is that some companies 
will convert rather than close, if the recent incidence of conversion 
to non-mercury technology by the U.S. chlor-alkali industry continues. 
Therefore, the negative economic effects described above would be 
mitigated if only some of the four facilities closed.
    We also believe that any near-term negative economic impacts are 
justified given the potential adverse health and environmental effects 
of mercury that will be reduced permanently into the future. Therefore, 
we are proposing this non-mercury technology option to request comments 
on whether the benefits of eliminating mercury emissions from this 
industry, as a beyond-the-floor control alternative, are warranted 
given the foregoing discussion.

B. What is the enhanced work practices option (Option 2)?

1. Summary of Enhanced Work Practices Option
    On June 11, 2008 (73 FR 33257), we proposed modifications to the 
work practice standards that apply to fugitive emissions, primarily 
those fugitive emissions from cell rooms. The proposed modifications to 
these work practices included requiring mercury

[[Page 13863]]

monitoring in the cell room for all facilities, along with daily work 
practices and weekly certification of the performance of these work 
practices. Establishment of the ``action level'' for investigating and 
correcting high mercury concentration levels revealed by the continuous 
monitors would be done for a minimum of 14 days and up to 30 days, at 
least every 6 months, and the action level would be set at the 90th 
percentile of the data acquired during the re-setting time period(s). 
We also proposed to require mercury thermal recovery units that 
continue to operate at closed or converted plants to remain subject to 
the applicable requirements as long as they are in operation. These 
amendments are discussed in more detail in the 2008 proposal (73 FR 
33271-33272 and 33275).
    In this action, we are re-proposing these amendments as Option 2. 
We received comments on these proposed amendments in 2008. In 
developing our final action for the Mercury Cell NESHAP, we will 
consider these previously submitted comments, along with any additional 
comments received on this option as a result of this proposed action.
2. Estimated Impacts of the Enhanced Work Practices Option
a. Environmental and Energy Impacts
    The mercury emissions reported to the TRI for 2008 for the four 
operating plants represent an 88 percent decrease from the pre-MACT 
levels. While some of this reduction is a result of the ability to 
estimate emission levels using the measured concentrations from the 
cell room continuous mercury monitoring systems and calculated flow 
rates, they are also a result of impacts of the Mercury Cell NESHAP. We 
do not believe that there will initially be substantial emission 
reductions associated with the enhanced work practice option. However, 
we believe that as these plants increase their knowledge of the causes 
of fugitive mercury emissions in the cell room through operation of the 
cell room monitoring program, mercury emissions will continue to 
steadily decrease. This is illustrated by the fact that the three 
plants utilizing these systems reported a decrease in mercury emissions 
of over 20 percent between 2007 and 2008. While this rate of decrease 
is not likely to occur every year, we believe the fugitive mercury 
emissions will continue to be reduced.
    Since the enhanced monitoring option will not change the basic 
operation of the mercury cells, we do not anticipate that there will be 
any energy impacts.
b. Cost and Economic Impacts
    The enhanced monitoring option would make the cell room monitoring 
program mandatory for all mercury cell chlor-alkali plants and would 
potentially impact all currently operating plants. However, the level 
of these impacts will vary depending on whether a plant previously 
elected to purchase and install a continuous mercury monitoring system 
in its cell room to comply with the cell room monitoring program 
alternative of the 2003 Mercury Cell NESHAP. For the three plants that 
are currently complying via the cell room monitoring program 
alternative option, we do not predict that there would be any cost 
impacts. For the single plant that has elected not to purchase, 
install, and operate a cell room monitoring system to comply via the 
cell room monitoring program alternative, we estimate that it would 
incur a capital cost for a monitoring system of around $120,000, and 
that the total annual cost (including annualized capital cost and 
operation and maintenance costs) would be slightly more than $25,000 
per year. We believe that this value is a low percentage of the annual 
revenues for this facility and would not cause any adverse economic 
impacts. The cost and economic impacts of the enhanced monitoring 
option were discussed in more detail in the 2008 proposal (73 FR 
33276).
3. Rationale for Selection of the Enhanced Work Practices Option
    The evidence is clear that the continuous mercury monitoring 
programs are effective in identifying and correcting emission events. 
It is also evident that they are beneficial in identifying emission 
sources that may have previously been undetected. However, we believe 
that the routine work practices also play an important role in reducing 
emissions, by avoiding situations where elevated mercury concentrations 
are detected by the monitoring program. We believe that the cost and 
economic impacts of requiring both the work practices and the 
monitoring program are justified, given the effectiveness this 
combination has in reducing mercury emissions. Further, we believe that 
selection of this option would lessen the potential near-term negative 
economic impacts associated with the non-mercury technology option, 
since plants would likely continue to operate.

C. What amendments are being proposed that are independent of which 
option is selected?

    In addition to the co-proposal of the two options discussed above 
in Sections III.A and III.B, we are also proposing amendments that 
would apply regardless of whether we select the non-mercury technology 
option or the enhanced monitoring option. Specifically, we are 
proposing to amend the provisions of the existing NESHAP that apply to 
periods of SSM and to correct compliance errors in the rule.
1. Provisions That Apply During Periods of Startup, Shutdown, and 
Malfunction
    This proposed action would amend the provisions of the existing 
NESHAP that apply to periods of SSM. The proposed revisions of these 
provisions result from a Court decision that vacated portions of two 
provisions in EPA's CAA section 112 regulations governing the emissions 
of HAP during periods of SSM. (Sierra Club v. EPA, 551 F.3d 1019 (DC 
Cir. 2008), cert. denied, 130 S. CT. 1735 (U.S. 2010)). Consequently, 
this proposed revised rule would require that affected sources comply 
with the emission limitations and work practices at all times, 
including during periods of SSM. For reasons discussed below, we are 
also proposing to promulgate an affirmative defense to civil penalties 
for exceedances of emission standards caused by malfunctions, as well 
as criteria for establishing the affirmative defense. These changes 
would go into effect upon the effective date of promulgation of the 
final rule.
    The United States Court of Appeals for the District of Columbia 
Circuit vacated portions of two provisions in EPA's CAA section 112 
regulations governing the emissions of HAP during periods of SSM. 
Sierra Club v. EPA, 551 F.3d 1019 (DC Cir. 2008), cert. denied, 130 S. 
Ct. 1735 (2010). Specifically, the Court vacated the SSM exemption 
contained in 40 CFR 63.6(f)(1) and (h)(1), that is part of a regulation 
commonly known as the ``General Provisions Rule,'' that EPA had 
promulgated under section 112 of the CAA. When incorporated into CAA 
section 112(d) regulations for specific source categories, these two 
provisions exempted sources from the requirement to comply with the 
otherwise applicable CAA section 112(d) emission standard during 
periods of SSM. The 2003 Mercury Cell NESHAP Subpart included a 
reference to 40 CFR 63.6(f)(1), as well as regulatory text unique to 
the 2003 Mercury Cell NESHAP that exempted compliance with standards 
during SSM events. It

[[Page 13864]]

did not include a reference to 40 CFR 63.6 (h)(1), since the rule does 
not have opacity and visible emission standards. In light of Sierra 
Club v. EPA, we are proposing to eliminate the SSM exemption in the 
Mercury Cell NESHAP, by revising Table 10, which addresses the 
applicability of the part 63 General Provisions to mercury cell chlor-
alkali plants, to state that 40 CFR 63.6(f)(1) does not apply. As such, 
all emission standards and work practices would apply at all times. We 
are also proposing to remove other references in subpart IIIII and 
Table 10 related to SSM, including provisions that exempted compliance 
with standards during SSM periods. We are also proposing to remove the 
General Provisions' requirement that the source develop an SSM plan, 
and to remove certain recordkeeping and reporting requirements related 
to the SSM exemption, but we are retaining the recordkeeping and 
related requirements for malfunctions and request public comment on the 
requirements. EPA has attempted to ensure that regulatory language 
relating to the SSM exemption has been removed. We solicit comment on 
whether we have overlooked any regulatory provisions that might be 
inappropriate, unnecessary, or redundant based on our proposal to 
remove the exemption from compliance with emission standards during 
periods of SSM.
    Regarding startup and shutdown modes of operation at mercury cell 
plants, based on available information EPA does not consider emissions 
during these periods to be significantly different than emissions 
during normal operation, and therefore is not proposing separate limits 
that would apply during these periods. We do not have any information 
that shows emissions at mercury cell plants would be significantly 
different during startup or shutdown than during normal operation; nor 
do we have information suggesting that the emissions control measures 
required by the 2003 rule would be less effective during startup or 
shutdown periods. We request public comment on whether emissions during 
startup and shutdown are instead significantly different compared to 
other normal operation, such that a different standard for startup and 
shutdown periods would be warranted.
    Periods of startup, normal operations, and shutdown are all 
predictable and routine aspects of a source's operations. In contrast, 
malfunction is defined as a ``sudden, infrequent, and not reasonably 
preventable failure of air pollution control and monitoring equipment, 
process equipment, or a process to operate in a normal or useful manner 
* * *'' (40 CFR 63.2). EPA believes that a malfunction should not be 
viewed as a distinct operating mode and, therefore, any emissions that 
occur during malfunctions do not need to be factored into development 
of CAA section 112(d) standards, which, once promulgated, apply at all 
times. In Mossville Environmental Action Now v. EPA, 370 F.3d 1232, 
1242 (DC Cir. 2004), the court upheld as reasonable standards that had 
factored in variability of emissions under all operating conditions. 
However, nothing in section 112(d) or in case law requires that EPA 
anticipate and account for the innumerable types of potential 
malfunction events in setting emission standards. See, Weyerhaeuser v. 
Costle, 590 F.2d 1011, 1058 (DC Cir. 1978) (``In the nature of things, 
no general limit, individual permit, or even any upset provision can 
anticipate all upset situations. After a certain point, the 
transgression of regulatory limits caused by ``uncontrollable acts of 
third parties, such as strikes, sabotage, operator intoxication or 
insanity, and a variety of other eventualities, must be a matter for 
the administrative exercise of case-by-case enforcement discretion, not 
for specification in advance by regulation.'') Further, it is 
reasonable to interpret CAA section 112(d) as not requiring EPA to 
account for malfunctions in setting emission standards. For example, we 
note that CAA section 112 uses the concept of ``best performing'' 
sources to define MACT, the level of stringency that major source 
standards must meet. Applying the concept of ``best performing'' to a 
source that is malfunctioning presents significant difficulties. The 
goal of best performing sources is to operate in such a way as to avoid 
malfunctions of their units. Consequently, MACT should not be based on 
periods in which there is a failure to operate.
    Moreover, even if malfunctions were considered a distinct operating 
mode, we believe it would be impracticable to take into account 
malfunctions in setting CAA section 112(d) standards. As noted above, 
by definition malfunctions are sudden and unexpected events, and it 
would be difficult to set a standard that takes into account the myriad 
different types of malfunctions that can occur across all sources in 
each source category. Moreover, malfunctions can vary in frequency, 
degree, and duration, further complicating standard setting.
    Under this proposal, in the event that a source fails to comply 
with the applicable CAA section 112(d) standards as a result of a 
malfunction event, EPA would determine an appropriate response based 
on, among other things, the good faith efforts of the source to 
minimize emissions during malfunction periods, including preventative 
and corrective actions, as well as root cause analyses to ascertain and 
rectify excess emissions. EPA would also consider whether the source's 
failure to comply with the CAA section 112(d) standard was, in fact, 
``sudden, infrequent, not reasonably preventable'' and was not instead 
``caused in part by poor maintenance or careless operation.'' 40 CFR 
63.2 (definition of malfunction.)
    Finally, EPA recognizes that even equipment that is properly 
designed and maintained can sometimes fail and that such failure can 
sometimes cause or contribute to an exceedance of the relevant emission 
standard. (See, e.g., State Implementation Plans: Policy Regarding 
Excessive Emissions During Malfunctions, Startup, and Shutdown (Sept. 
20, 1999); Policy on Excess Emissions During Startup, Shutdown, 
Maintenance, and Malfunctions (Feb. 15, 1983).) Therefore, consistent 
with our recently promulgated final amendments to regulations 
addressing the Portland Cement category (75 FR 54970, Sept. 9, 2010), 
we are proposing to add regulatory language providing an affirmative 
defense against civil penalties for exceedances of emission limits that 
are caused by malfunctions. See proposed amendment to 40 CFR 63.8266 
(defining ``affirmative defense'' to mean, in the context of an 
enforcement proceeding, a response or defense put forward by a 
defendant, regarding which the defendant has the burden of proof, and 
the merits of which are independently and objectively evaluated in a 
judicial or administrative proceeding). We are also proposing 
regulatory provisions to specify the elements that are necessary to 
establish this affirmative defense; the source would have to prove by a 
preponderance of the evidence that it has met all of the elements set 
forth in sections. (See proposed amendment to 40 CFR 63.8226(b); see 
also 40 CFR 22.24.) The proposed criteria would ensure that the 
affirmative defense is available only where the event that causes an 
exceedance of the emission limit meets the narrow definition of 
malfunction in 40 CFR 63.2 (sudden, infrequent, not reasonable 
preventable and not caused by poor maintenance and/or careless 
operation). The proposed criteria also are designed to ensure that 
steps are taken to correct the malfunction, to minimize emissions, and 
to prevent future malfunctions. In

[[Page 13865]]

any judicial or administrative proceeding, the Administrator would be 
able to challenge the assertion of the affirmative defense and, if the 
respondent has not met its burden of proving all of the requirements in 
the affirmative defense, appropriate penalties could be assessed in 
accordance with Section 113 of the Clean Air Act (see also 40 CFR 
22.77).
2. Compliance Provisions Rule Corrections
    We are proposing amendments to correct errors and improve the 
compliance provisions of the rule. These changes, which are described 
below, were included in the June 2008 proposal (73 FR 33275).
a. Detection Limit For Mercury Monitor Analyzers
    Paragraph (a)(2) of Sec.  63.8242, ``What are the installation, 
operation, and maintenance requirements for my continuous monitoring 
systems?'' requires that mercury continuous monitor analyzers have a 
detector with the capability to detect a mercury concentration at or 
below 0.5 times the mercury concentration level measured during the 
performance test. Since promulgation of the 2003 Mercury Cell NESHAP, 
we determined that setting the analyzer detection capability in 
reference to the concentration level during the performance test could 
be problematic. We realized that a concentration of 0.5 times the 
mercury concentration could, in cases of low mercury concentrations, be 
infeasible for the monitoring devices on the market. Information 
available to us at this time shows that 0.1 micrograms per cubic meter 
([mu]g/m3) is the detection limit of commonly commercially 
available analyzers. We believe that analyzers with detection limits at 
this level are more than sufficient to determine compliance with the 
limitations in the 2003 Mercury Cell NESHAP. Therefore, we are 
proposing to revise this paragraph to require a detector with the 
capability to detect a mercury concentration at or below 0.5 times the 
mercury concentration measured during the test or 0.1 [mu]g/
m3.
b. Averaging Period for Mercury Recovery Unit Compliance
    The 2003 Mercury Cell NESHAP is inconsistent as to whether the rule 
requires a daily average or an hourly average to determine continuous 
compliance with the emissions standard for mercury recovery units found 
at Sec.  63.8190(a)(3) of Sec.  63.8190 ``What emission limitations 
must I meet?'' Paragraph (b) of Sec.  63.8243 ``What equations and 
procedures must I use to demonstrate continuous compliance?'' clearly 
indicates that this averaging period is daily: ``You must calculate the 
daily average mercury concentration using Equation 2 * * *'' However, 
paragraph (b) of Sec.  63.8246 ``How do I demonstrate continuous 
compliance with the emission limitations and work practice standards?'' 
states that for each mercury thermal recovery unit vent, ``you must 
demonstrate continuous compliance with the applicable emission limit 
specified in Sec.  63.8190(a)(3) by maintaining the outlet mercury 
hourly-average concentration no higher than the applicable limit.''
    It was our intention for compliance to be based on a daily average, 
as detailed below, and the inclusion of ``hourly'' in paragraph (b) of 
Sec.  63.8246 ``How do I demonstrate continuous compliance with the 
emission limitations and work practice standards?'' was a drafting 
error. Therefore, we are proposing to correct this error by replacing 
``hourly'' in Sec.  63.8246(b) with ``daily.'' In the proposal Federal 
Register notice for the 2003 Mercury Cell NESHAP (67 FR 44678, July 3, 
2002), we clearly stated our intention when we summarized the 
requirements as follows:

    ``To continuously comply with the emission limit for each by-
product hydrogen stream, end-box ventilation system vent, and 
mercury thermal recovery unit, we are proposing that each owner and 
operator would continuously monitor outlet elemental mercury 
concentration and compare the daily average results with a mercury 
concentration operating limit for the vent. * * *''
    ``Continuous compliance would be demonstrated by collecting 
outlet elemental mercury concentration data using continuous mercury 
vapor monitor, calculating daily averages, and documenting that the 
calculated daily average values are no higher than established 
operating limits. Each daily average vent elemental mercury 
concentration greater than the established operating limit would be 
considered a deviation.

IV. Request for Comment

    We request comment on all aspects of the proposed action. All 
significant comments received during the comment period will be 
considered.
    Five comments were received on the amendments proposed in June 
2008. These commenters represent one environmental organization, one 
industry trade organization, and two companies that own and operate 
mercury cell chlor-alkali plants. The fifth comment was anonymously 
submitted in support of environmental organizations. We reviewed and 
considered these comments. As discussed above in section II.C.3 of this 
preamble, the consideration of one of the issues raised in the comments 
has caused us to publish this supplemental proposal today proposing the 
non-mercury technology option. In developing our final action, we will 
consider all previously-submitted relevant comments in addition to any 
comments submitted in response to today's proposal.
    Comments are requested on several aspects of this proposed action. 
First, we are soliciting comments on which of the two options (Option 
1: Non-Mercury Technology or Option 2: Enhanced Work Practices) is most 
appropriate. In providing comments on the selection of one of these 
options, please provide detailed rationale and additional technical 
information that supports your recommendation.
    Second, we are requesting comments on the specific amendments being 
proposed under both options. After making a decision on which option we 
will select for promulgation, we will consider and address all 
significant comments received on the amendments related to that option. 
We received comments on the enhanced work practices option following 
the proposal in June 2008. If that option is selected, we will consider 
and address those comments along with any new comments received.
    Third, we are specifically requesting comments on the potential for 
the elimination of mercury emissions without converting to membrane 
cells or plant closure. We are also requesting comment on any measures 
beyond those included in the enhanced monitoring option that might be 
employed at mercury cell facilities which could achieve even greater 
reductions such that mercury emissions are at ``near zero'' levels 
without conversion to a non-mercury process or closure.
    As noted earlier, we believe that it is improbable that a mercury 
cell chlor-alkali plant can be operated without mercury emissions. 
Therefore, we have assumed that requiring the elimination of mercury 
emissions would effectively require existing mercury cell chlor-alkali 
plants either to convert to a non-mercury technology or to cease 
production of chlorine with their current mercury cell production 
methods. However, if there are circumstances where the elimination of 
mercury emissions from an operating mercury cell plant could be 
achieved, we are specifically interested in data and supporting 
information regarding technologies that would eliminate mercury 
emissions from an operating mercury cell facility.

[[Page 13866]]

    We are also interested in the possibility of other emission 
reduction technologies, process modifications, or practices not 
included in the enhanced work practices option that could reduce 
mercury emissions to ``near-zero'' levels. We are aware of the 
significant efforts that have been made by the four currently operating 
mercury cell facilities to reduce mercury emissions. As some of these 
efforts have been developed more fully in recent years, we have seen 
significant and consistent reductions in emissions to the current 
levels. We believe that the further refinement of these methods would 
continue to steadily decrease mercury emissions. We are requesting 
comment on a realistic lower bound level that could be achieved.
    In addition, a near-zero emission standard alternative would need 
to include appropriate testing and monitoring provisions. Therefore, in 
addition to information regarding a realistic lower-bound emissions 
level, we are also requesting comment on methods to overcome the 
difficulty of accurately measuring cell room fugitive emissions.
    Fourth, we are requesting comments on the proposed amendments 
related to provisions that apply during periods of SSM and the 
compliance provisions rule corrections. These amendments would apply 
regardless of which option we select. The compliance provisions rule 
corrections were also proposed in June 2008, and any comments received 
on the prior proposal related to these amendments will also be 
considered and addressed.
    Finally, comments were provided in 2008 on all the reconsideration 
decisions discussed in our June 2008 proposal (and summarized in 
section II.C of this preamble). We will accept additional comments on 
these decisions and consider them, along with the previous comments, in 
making our final decisions.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under section 3(f)(1) of Executive Order 12866 (58 FR 51735, 
October 4, 1993), this action is an ``economically significant 
regulatory action'' because Option 1 is likely to have an annual effect 
on the economy of $100 million or more. Accordingly, EPA submitted this 
action to the Office of Management and Budget (OMB) for review under EO 
12866 and any changes made in response to OMB recommendations have been 
documented in the docket for this action. In addition, EPA prepared a 
RIA of the potential costs and benefits associated with this action.
    When estimating the PM2.5-related human health benefits 
and compliance costs in Table 2 of this preamble, EPA applied methods 
and assumptions consistent with the state-of-the-science for human 
health impact assessment, economics and air quality analysis. EPA 
applied its best professional judgment in performing this analysis and 
believes that these estimates provide a reasonable indication of the 
expected benefits and costs to the nation of this rulemaking. The RIA 
available in the docket describes in detail the empirical basis for 
EPA's assumptions and characterizes the various sources of 
uncertainties affecting the estimates below.
    When characterizing uncertainty in the PM-mortality relationship, 
EPA has historically presented a sensitivity analysis applying 
alternate assumed thresholds in the PM concentration-response 
relationship. In its synthesis of the current state of the PM science, 
EPA's 2009 Integrated Science Assessment for Particulate Matter 
concluded that a no-threshold log-linear model most adequately portrays 
the PM-mortality concentration-response relationship. In the RIA 
accompanying this rulemaking, rather than segmenting out impacts 
predicted to be associated levels above and below a ``bright line'' 
threshold, EPA includes a LML that illustrates the increasing 
uncertainty that characterizes exposure attributed to levels of 
PM2.5 below the LML for each study. Figures provided in the 
RIA show the distribution of baseline exposure to PM2.5, as 
well as the lowest air quality levels measured in each of the 
epidemiology cohort studies. This information provides a context for 
considering the likely portion of PM-related mortality benefits 
occurring above or below the LML of each study; in general, our 
confidence in the size of the estimated reduction PM2.5-
related premature mortality diminishes as baseline concentrations of 
PM2.5 are lowered. Using the Pope et al. (2002) study, the 
85 percent of the population is exposed at or above the LML of 7.5 
[micro]g/m\3\. Using the Laden et al. (2006) study, 40 percent of the 
population is exposed above the LML of 10 [micro]g/m\3\. While the LML 
analysis provides some insight into the level of uncertainty in the 
estimated PM mortality benefits, EPA does not view the LML as a 
threshold and continues to quantify PM-related mortality impacts using 
a full range of modeled air quality concentrations.
    The cost analysis is also subject to uncertainties. Estimating the 
cost conversion from one process to another is more difficult than 
estimating the cost of adding control equipment because it is more 
dependent on plant specific information. The estimation of cost savings 
from environmental compliance cost savings elimination of the mercury 
process is also uncertain. The numbers were based on the savings 
reported by one U.S. facility and some studies from outside the U.S. 
The savings might be greater or smaller than estimated. Likewise, since 
the electricity savings are dependent on many of the same factors, they 
are also uncertain and may be greater or smaller than estimated.
    A summary of the monetized benefits, social costs, and net benefits 
for the two options at discount rates of 3 percent and 7 percent is in 
Table 2 of this preamble.
BILLING CODE 6560-50-P

[[Page 13867]]

[GRAPHIC] [TIFF OMITTED] TP14MR11.000

BILLING CODE 6560-50-C
    For more information on the benefits analysis, please refer to the 
RIA for this rulemaking, which is available in the docket.

[[Page 13868]]

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule, have 
been submitted for approval to OMB under the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq. The information collection request (ICR) 
document prepared by EPA has been assigned an EPA ICR number 2046.06.
    OMB has previously approved the information collection requirements 
in the existing regulation (40 CFR part 63, subpart IIIII) under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2060-0542. The OMB control numbers for 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    The proposed amendments under Option 1 would result in changes to 
the information collection requirements in the regulation. This 
information is being collected to assure that mercury emissions have 
been eliminated. The required notifications, reports, and records are 
essential in determining compliance, and are required of all affected 
facilities. The recordkeeping and reporting requirements in this 
proposed rule are based on the requirements in EPA's NESHAP General 
Provisions (40 CFR part 63, subpart A). The recordkeeping and reporting 
requirements in the General Provisions are mandatory pursuant to 
section 114 of the CAA (42 U.S.C. 7414). All information other than 
emissions data submitted to EPA pursuant to the information collection 
requirements for which a claim of confidentiality is made is 
safeguarded according to CAA section 114(c) and the Agency's 
implementing regulations at 40 CFR part 2, subpart B.
    The only information collection associated with the proposed 
amendments under Option 1 is a one-time certification that must be 
submitted 60 days after the compliance date. It is estimated that the 
burden for this information collection is 3 labor hours per response 
per facility, for a total of 12 labor hours for all four facilities. 
This burden will occur during the first year after promulgation, but 
the annual burden for this information collection averaged over the 3 
years following the compliance date of these amendments is estimated to 
be a total of 4 labor hours per year. Burden is defined at 5 CFR 
1320.3(b).
    These proposed amendments under Option 2 would result in changes to 
the information collection requirements in the regulation. This 
information is being collected to assure compliance with the 
regulation. The required notifications, reports, and records are 
essential in determining compliance, and are required of all affected 
facilities. The recordkeeping and reporting requirements in proposed 
option 2 are based on the requirements in EPA's NESHAP General 
Provisions (40 CFR part 63, subpart A). The recordkeeping and reporting 
requirements in the General Provisions are mandatory pursuant to 
section 114 of the CAA (42 U.S.C. 7414). All information other than 
emissions data submitted to EPA pursuant to the information collection 
requirements for which a claim of confidentiality is made is 
safeguarded according to CAA section 114(c) and the Agency's 
implementing regulations at 40 CFR part 2, subpart B.
    The annual burden for this information collection averaged over the 
three years following promulgation of these amendments is estimated to 
be a total of 3,800 labor hours per year. The average annual reporting 
burden is 16 hours per response, with approximately 3 responses per 
facility for 5 respondents. The only capital/startup costs are 
associated with the installation of a cell room monitoring system at 
one facility, since we know that these systems are already in place at 
the other four facilities. The total capital/startup cost annualized 
over its expected useful life is $13,000. The total operation and 
maintenance is $60,000 per year. There are no estimated costs 
associated with purchase of services. Burden is defined at 5 CFR 
1320.3(b).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, EPA has established a public docket for 
this action, which includes this ICR, under Docket ID number EPA-HQ-
OAR-2002-0017. Submit any comments related to the ICR for this proposed 
rule to EPA and OMB. See ADDRESSES section at the beginning of this 
notice for where to submit comments to EPA. Send comments to OMB at the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk 
Office for EPA. Since OMB is required to make a decision concerning the 
ICR between 30 and 60 days after March 14, 2011, a comment to OMB is 
best assured of having its full effect if OMB receives it by April 13, 
2011. The final rule will respond to any OMB or public comments on the 
information collection requirements contained in these proposed 
amendments.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under the Administrative Procedure 
Act or any other statute unless the agency certifies that the rule 
would not have a significant economic impact on a substantial number of 
small entities. Small entities include small businesses, small not-for-
profit enterprises, and small governmental jurisdictions.
    For the purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as: (1) A small business that 
meets the Small Business Administration size standards for small 
businesses, as defined by the Small Business Administration's 
regulations at 13 CFR 121.201; (2) a small governmental jurisdiction 
that is a government of a city, county, town, school district, or 
special district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of this proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule is estimated to impact a total of four sources, with one 
of the four facilities estimated to be a small entity. We have 
estimated that small entity compliance costs, as assessed by the 
facilities' CSR, are expected to be just over 1 percent of revenues. 
New sources are already prohibited from using the mercury technology in 
the chlor-alkali production process by virtue of the 2003 Mercury Cell 
NESHAP's provisions; consequently, we did not estimate any impacts for 
new sources since this rulemaking would not impose any new requirements 
on them.
    This proposed rule will not have a significant economic impact on a 
substantial number of small entities, since there is only one small 
entity in the group of four facilities and compliance costs for this 
small entity are expected to be just over 1 percent of revenues. 
However, we continue to be interested in the potential impacts of this 
proposed action on small entities and welcome comments on issues 
related to such impacts.

[[Page 13869]]

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), 2 U.S.C. 1531-1538 for State, local, or Tribal governments or 
the private sector. The action imposes no enforceable duty on any 
State, local or Tribal governments or the private sector. (Note: The 
term ``enforceable duty'' does not include duties and conditions in 
voluntary Federal contracts for goods and services.) Therefore, this 
action is not subject to the requirements of sections 202 and 205 of 
the UMRA. This action also is not subject to the requirements of 
section 203 of UMRA because it contains no regulatory requirements that 
might significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications.'' ``Policies that have 
federalism implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This proposed rule does not impose 
any requirements on State and local governments. Thus, Executive Order 
13132 does not apply to this action.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

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

    This action does not have Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed 
rule imposes no requirements on Tribal governments. Thus, Executive 
Order 13175 does not apply to this rule. EPA specifically solicits 
additional comment on this proposed rule from Tribal officials.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the Order 
has the potential to influence the regulation. This action is not 
subject to Executive Order 13045 because it is based solely on 
technology performance. However, given the potential health effects of 
mercury on children, the elimination in mercury emissions from these 
four facilities could result in additional protection of children from 
environmental health risks.

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

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. We have 
concluded that this action is not likely to have any adverse energy 
effects because no additional requirements are contained in this 
proposed rule that consume energy. In fact, as discussed previously in 
this preamble, this action would result in decreased energy usage.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113 (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the U.S.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. The nationwide standards would totally eliminate 
mercury emissions from sources affected by this proposed rule and thus 
eliminate all adverse human health or environmental effects on all 
populations, including minority or low-income populations.
    An analysis of demographic data showed that the average percentages 
of the population below the poverty level and the percentages of the 
population 17 years old and younger in populations in close proximity 
to the sources are similar to the national averages. The percentage of 
minorities in populations in close proximity to the sources is lower 
than the national average.
    In determining the aggregate demographic makeup of the communities 
near affected sources, EPA used census data at the block group level to 
identify demographics of the populations considered to be living near 
affected sources, such that they have notable exposures to current 
emissions from these sources. In this approach, EPA reviewed the 
distributions of different socio-demographic groups in the locations of 
the expected emission reductions from this proposed rule. The review 
identified those census block groups with centroids within a circular 
distance of a 0.5, 3, and 5 miles of affected sources and determined 
the demographic and socio-economic composition (e.g., race, income,

[[Page 13870]]

education, etc) of these census block groups. The radius of 3 miles (or 
approximately 5 kilometers) has been used in other demographic analyses 
focused on areas around potential sources.o p q r There were 
no census block groups with centroids within 0.5 miles of any of the 
sources affected by this proposed rule. EPA's demographic analysis has 
shown that these areas in aggregate have lower proportions of American 
Indians, African-Americans, Hispanics, and ``Other and Multi-racial'' 
populations than the national average. The analysis showed that these 
areas in aggregated had similar proportions of families with incomes 
below the poverty level as the national average.\s\
---------------------------------------------------------------------------

    \o\ U.S. GAO (Government Accountability Office). Demographics of 
People Living Near Waste Facilities. Washington, DC: Government 
Printing Office; 1995.
    \p\ Mohai P, Saha R. ``Reassessing Racial and Socio-economic 
Disparities in Environmental Justice Research''. Demography. 
2006;43(2): 383-399.
    \q\ Mennis J. ``Using Geographic Information Systems to Create 
and Analyze Statistical Surfaces of Populations and Risk for 
Environmental Justice Analysis''. Social Science Quarterly, 
2002;83(1):281-297.
    \r\ Bullard RD, Mohai P, Wright B, Saha R, et al. Toxic Waste 
and Race at Twenty 1987-2007. United Church of Christ. March, 2007.
    \s\ The results of the demographic analysis are presented in 
``Review of Environmental Justice Impacts,'' August 2010, a copy of 
which is available in the docket.
---------------------------------------------------------------------------

    EPA defines ``Environmental Justice'' to include meaningful 
involvement of all people regardless of race, color, national origin, 
or income with respect to the development, implementation, and 
enforcement of environmental laws, regulations, and policies. To 
promote meaningful involvement, EPA has developed a communication and 
outreach strategy to ensure that interested communities have access to 
this proposed rule, are aware of its content, and have an opportunity 
to comment during the comment period. During the comment period, EPA 
will publicize the rulemaking via EJ newsletters, Tribal newsletters, 
EJ list servers, and the Internet, including EPA's Office of Policy 
Rulemaking Gateway Web site (http://yosemite.epa.gov/opei/RuleGate.nsf/
). EPA will also provide general rulemaking fact sheets (e.g., why is 
this important for my community) for EJ community groups and conduct 
conference calls with interested communities. In addition, State and 
Federal permitting requirements will provide State and local 
governments and members of affected communities the opportunity to 
provide comments on the permit conditions associated with permitting 
the sources affected by this rulemaking.

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous 
substances, Incorporation by reference, Reporting and recordkeeping 
requirements.

    Dated: March 3, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 63--[Amended]

    1. The authority citation for part 63 continues to read as follows:

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

[OPTION 1 FOR SUBPART IIIII--AMENDED]

Subpart IIIII--[Amended]

    2. Section 63.8184 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec.  63.8184  What parts of my plant does this subpart cover?

    (a) This subpart applies to two types of affected sources at a 
mercury cell chlor-alkali plant: the mercury cell chlor-alkali 
production facility, as defined in paragraph (a)(1) of this section and 
Sec.  63.8266; and the mercury recovery facility, as defined in 
paragraph (a)(2) of this section and Sec.  63.8266.
    (1) The mercury cell chlor-alkali production facility affected 
source consists of all cell rooms and ancillary operations used in the 
manufacture of product chlorine, product caustic, and by-product 
hydrogen at a mercury cell chlor-alkali plant. This subpart covers 
mercury emissions from by-product hydrogen streams, end box ventilation 
system vents, and fugitive emission sources associated with cell rooms, 
hydrogen systems, caustic systems, and storage areas for mercury-
containing wastes.
    (2) The mercury recovery facility affected source consists of all 
processes and associated operations needed for mercury recovery of 
wastes generated from a mercury cell chlor-alkali plant. This subpart 
covers mercury emissions from mercury thermal recovery unit vents and 
fugitive emission sources associated with storage areas for mercury-
containing wastes.
* * * * *
    (c) A mercury recovery facility is a new affected source if you 
commence construction or reconstruction of the affected source after 
the dates specified in Sec.  63.8186(c) and (d). An affected source is 
reconstructed if it meets the definition of a reconstruction in Sec.  
63.2.
    3. Section 63.8186 is revised to read as follows:


Sec.  63.8186  When do I have to comply with this subpart?

    (a) Compliance date for the emission limitations in Sec.  
63.8190(a)(2), the work practices in Sec.  63.8192, and all the 
associated requirements for existing mercury cell chlor-alkali 
production facility and mercury recovery facility affected sources. If 
you have an existing mercury cell chlor-alkali production facility or 
mercury recovery facility affected source, you must comply with the 
applicable emission limitations in Sec.  63.8190(a)(2), work practices 
in Sec.  63.8192, and all the associated requirements no later than 
December 19, 2006.
    (b) Compliance date for emission limitation in Sec.  63.8190(b) and 
all the associated requirements for existing mercury cell chlor-alkali 
production facility and mercury recovery facility affected sources. If 
you have an existing mercury cell chlor-alkali production facility or 
mercury recovery facility affected source, you must comply with Sec.  
63.8190(b) by three years after the date that the final rule is 
published in the Federal Register. Prior to compliance with Sec.  
63.8190(b), you must comply with the applicable emission limitations in 
Sec.  63.8190(a)(2), work practices in Sec.  63.8192, and all the 
associated requirements. After you have demonstrated compliance with 
Sec.  63.8190(b) and have submitted the certification of compliance in 
accordance with Sec.  63.8252(f), you are only subject to Sec.  
63.8246(d) of this subpart.
    (c) Compliance date for the emission limitations in Sec.  
63.8190(a)(3), the work practices in Sec.  63.8192, and all the 
associated requirements for new or reconstructed mercury recovery 
facility affected sources. If you commenced construction or 
reconstruction of your mercury recovery facility after July 3, 2002, 
and before March 14, 2011, you must comply with the applicable emission 
limitation in Sec.  63.8190(a)(3), work practices in Sec.  63.8192, and 
all the associated requirements by either December 19, 2003, or upon 
initial startup, whichever is later.
    (d) Compliance date for the emission limitation under Sec.  
63.8190(b) and all the associated requirements for new or reconstructed 
mercury recovery facility affected sources.
    (1) If you commenced construction or reconstruction of your mercury 
recovery facility after July 3, 2002, and before

[[Page 13871]]

March 14, 2011, you must comply with the emission limitation in Sec.  
63.8190(b) and all the associated requirements by three years after the 
date that the final rule is published in the Federal Register. Prior to 
compliance with Sec.  63.8190(b), you must comply with the applicable 
emission limitation in Sec.  63.8190(a)(3), work practices in Sec.  
63.8192, and all the associated requirements. After you have 
demonstrated compliance with Sec.  63.8190(b) and have submitted the 
certification of compliance in accordance with Sec.  63.8252(f), you 
are only subject to Sec.  63.8246(d) of this subpart.
    (2) If you commenced construction or reconstruction of your mercury 
recovery facility after March 14, 2011, you must comply with the 
emission limitation in Sec.  63.8190(b) and all the associated 
requirements by the date that the final rule is published in the 
Federal Register, or upon initial startup, whichever is later.
    4. Section 63.8190 is amended as follows:
    a. Revising paragraph (a)(2) introductory text;
    b. Revising paragraph (a)(3) introductory text; and
    c. Adding paragraph (b).
    The revisions read as follows:


Sec.  63.8190  What emission limitations must I meet?

    (a) * * *
    (2) Emission limits which apply to existing mercury cell chlor-
alkali production facilities prior to achieving compliance with Sec.  
63.8190(b). During any consecutive 52-week period, you must not 
discharge to the atmosphere total mercury emissions in excess of the 
applicable limit in paragraph (a)(2)(i) or (ii) of this section 
calculated using the procedures in Sec.  63.8243(a).
* * * * *
    (3) Emission limits which apply to existing mercury recovery 
facilities and to new or reconstructed mercury recovery facilities that 
commenced construction or reconstruction after July 3, 2002, and before 
March 14, 2011 prior to achieving compliance with paragraph (b) of this 
section. You must not discharge to the atmosphere mercury emissions in 
excess of the applicable limit in paragraph (a)(3)(i) or (ii) of this 
section.
* * * * *
    (b) Emission limit which applies to each mercury cell chlor-alkali 
production facility and each mercury recovery facility after the 
applicable compliance date specified in paragraph Sec.  63.8186(b) or 
(d). Emissions of mercury are prohibited from each existing mercury 
cell chlor-alkali production facility and from each existing, new, or 
reconstructed mercury recovery facility. You must demonstrate 
compliance with this prohibition in accordance with the provisions in 
Sec.  63.8236(e) and Sec.  63.8246(d) and submit the certification of 
compliance required by Sec.  63.8252(f).
    5. Section 63.8192 is amended as follows:
    a. Revising the introductory text;
    b. Revising paragraph (g)(2)(i); and
    c. Revising paragraph (g)(3).
    The revisions read as follows:


Sec.  63.8192  What work practice standards must I meet?

    Prior to achieving compliance with Sec.  63.8190(b), you must meet 
the work practice requirements specified in paragraphs (a) through (f) 
of this section. As an alternative to the requirements specified in 
paragraphs (a) through (d) of this section, you may choose to comply 
with paragraph (g) of this section.
* * * * *
    (g) * * *
    (2) * * *
    (i) Beginning on the compliance date specified for your affected 
source in Sec.  63.8186(a), measure and record the mercury 
concentration for at least 30 days using a system that meets the 
requirements of paragraph (g)(1) of this section.
* * * * *
    (3) Beginning on the compliance date specified for your affected 
source in Sec.  63.8186(a), you must continuously monitor the mercury 
concentration in the cell room. Failure to monitor and record the data 
according to Sec.  63.8256(c)(4)(ii) for 75 percent of the time in any 
6-month period constitutes a deviation.
* * * * *
    6. Section 63.8230 is revised to read as follows:


Sec.  63.8230  By what date must I conduct performance tests or other 
initial compliance demonstrations?

    (a) You must conduct a performance test no later than the 
compliance date that is specified in Sec.  63.8186(a) for your affected 
source to demonstrate initial compliance with the applicable emission 
limit in Sec.  63.8190(a)(2) for by-product hydrogen streams and end 
box ventilation system vents and the applicable emission limit in Sec.  
63.8190(a)(3) for mercury thermal recovery unit vents.
    (b) For the applicable work practice standards in Sec.  63.8192 you 
must demonstrate initial compliance within 30 calendar days after the 
compliance date that is specified for your affected source in Sec.  
63.8186(a).
    7. Section 63.8236 is amended by adding paragraph (e) to read as 
follows:


Sec.  63.8236  How do I demonstrate initial compliance with the 
emission limitations and work practice standards?

* * * * *
    (e) For each affected source, you have demonstrated initial 
compliance with the emission limit in Sec.  63.8190(b) if you have 
eliminated mercury emissions and you have submitted the compliance 
certification required by Sec.  63.8252(f).
    8. Section 63.8243 is amended by revising paragraphs (a) 
introductory text and (a)(3) introductory text to read as follows:


Sec.  63.8243  What equations and procedures must I use to demonstrate 
continuous compliance?

    (a) By-product hydrogen streams and end box ventilation system 
vents. For each consecutive 52-week period, you must determine the g 
Hg/Mg Cl2 produced from all by-product hydrogen streams and 
all end box ventilation system vents, if applicable, at a mercury cell 
chlor-alkali production facility using the procedures in paragraphs 
(a)(1) through (3) of this section. You must begin collecting data on 
the compliance date that is specified in Sec.  63.8186(a) for your 
affected source and calculate your first 52-week average mercury 
emission rate at the end of the 52nd week after the compliance date.
* * * * *
    (3) Beginning 52 weeks after the compliance date specified in Sec.  
63.8186(a) for your affected source, you must calculate the 52-week 
average mercury emission rate from all by-product hydrogen steam and 
all end box ventilation system vents, if applicable, using Equation 1 
of this section as follows:
* * * * *
    9. Section 63.8246 is amended by adding paragraph (d) to read as 
follows:


Sec.  63.8246  How do I demonstrate continuous compliance with the 
emission limitations and work practice standards?

* * * * *
    (d) You must demonstrate continuous compliance with the emission 
limitations in Sec.  63.8190(b) by operating without mercury emissions.
    10. Section 63.8252 is amended by adding paragraph (f) to read as 
follows:


Sec.  63.8252  What notifications must I submit and when?

* * * * *
    (f) You must submit a compliance certification no later than 60 
days after the applicable compliance date

[[Page 13872]]

specified in Sec.  63.8186(b) or (d). This certification must state 
that you have eliminated all mercury emissions and will not use any 
process in the future that will emit mercury. The certification should 
also include a statement as to whether you eliminated mercury emissions 
through conversion to a non-mercury process for chlorine production or 
whether chlorine is no longer produced at the site.
    11. Section 63.8254 is amended as follows:
    a. Revising paragraph (a)(1);
    b. Revising paragraph (a)(2);
    The revisions read as follows:


Sec.  63.8254  What reports must I submit and when?

    (a) * * *
    (1) The first compliance report must cover the period beginning on 
December 19, 2006, and ending on June 30, 2007.
    (2) The first compliance report must be postmarked or delivered no 
later than July 31, 2007.
* * * * *

[OPTION 2 FOR SUBPART IIIII--AMENDED]

Subpart IIIII--[AMENDED]

    12. Section 63.8182 is amended by revising paragraph (a) to read as 
follows:


Sec.  63.8182  Am I subject to this subpart?

    (a) You are subject to this subpart if you own or operate a mercury 
cell chlor-alkali production facility or a mercury recovery facility at 
a mercury cell chlor-alkali plant.
* * * * *
    13. Section 63.8184 is amended by revising paragraph (a) to read as 
follows:


Sec.  63.8184  What parts of my plant does this subpart cover?

    (a) This subpart applies to two types of affected sources at a 
mercury cell chlor-alkali plant: the mercury cell chlor-alkali 
production facility, as defined in Sec.  63.8266, ``What definitions 
apply to this subpart,'' and the mercury recovery facility, as also 
defined in Sec.  63.8266.
* * * * *
    14. Section 63.8186 is amended as follows:
    a. By revising paragraph (a); and
    b. By adding paragraph (e).


Sec.  63.8186  When do I have to comply with this subpart?

    (a) If you have an existing affected source, you must comply with 
the applicable provisions no later than the dates specified in 
paragraph (a)(1) and in either paragraph (a)(2) or (3) of this section.
    (1) You must comply with each emission limitation, work practice 
standard, and recordkeeping and reporting requirement in this subpart 
that applies to you no later than December 19, 2006, with the exception 
of the requirements listed in (a)(1)(i) through (4) of this section.
    (i) Section 63.8192(h) and (i);
    (ii) Section 63.8236(e) and (f);
    (iii) Section 63.8252(f); and
    (iv) Section 63.8254(e).
    (2) If you were complying with the cell room monitoring program 
provisions in Sec.  63.8192(g) on March 14, 2011 as an alternative to 
the work practice standards in Sec.  63.8192(a) through (d), you must 
comply with the provisions in Sec.  63.8192(h) and (i) no later than 6 
months after publication of the final rule in the Federal Register. At 
the time that you are in compliance with Sec.  63.8192(h) and (i), you 
will no longer be subject to the provisions of Sec.  63.8192(g).
    (3) If you were complying with the work practice standards in Sec.  
63.8192(a) through (d) on March 14, 2011, you must comply with the 
provisions in Sec.  63.8192(h) and (i) no later than 2 years after 
publication of the final rule in the Federal Register. At the time that 
you are in compliance with Sec.  63.8192(h) and (i), you will no longer 
be subject to the provisions of Sec.  63.8192(a) through (d).
* * * * *
    (e) If you have a mercury recovery facility at a mercury cell 
chlor-alkali plant where the mercury cell chlor-alkali production 
facility ceased production of product chlorine, product caustic, and 
by-product hydrogen prior to the publication of the final rule in the 
Federal Register, you must comply with each emission limitation, work 
practice standard, and recordkeeping and reporting requirement in this 
subpart that applies to your mercury recovery unit by 1 year after the 
publication of the final rule in the Federal Register.
    15. Section 63.8192 is amended as follows:
    a. By revising Sec.  63.8192 introductory text; and
    b. By adding paragraphs (h) and (i).


Sec.  63.8192  What work practice standards must I meet?

    Prior to the applicable compliance date specified in Sec.  
63.8186(a)(2) or (3), you must meet the work practice requirements 
specified in paragraphs (a) through (f) of this section. As an 
alternative to the requirements specified in paragraphs (a) through (d) 
of this section, you may choose to comply with paragraph (g) of this 
section. After the applicable compliance date specified in Sec.  
63.8186(a)(2) or (3), you must meet the work practice requirements 
specified in paragraphs (e), (f), (h), and (i) of this section.
* * * * *
    (h) You must meet the work practice standards in Tables 1 through 4 
to this subpart and the associated recordkeeping requirements in Table 
12 to this subpart. You must adhere to the response intervals specified 
in Tables 1 through 4 to this subpart at all times. Nonadherence to the 
intervals in Tables 1 through 4 to this subpart constitutes a deviation 
and must be documented and reported in the compliance report, as 
required by Sec.  63.8254(b), with the date and time of the deviation, 
cause of the deviation, a description of the conditions, and time 
actual compliance was achieved. As provided in Sec.  63.6(g), you may 
request to use an alternative to the work practice standards in Tables 
1 through 4 to this subpart.
    (i) In addition to the work practice standards in paragraph (h) of 
this section, you must institute a cell room monitoring program to 
continuously monitor the mercury vapor concentration in the upper 
portion of each cell room and to take corrective actions as quickly as 
possible when elevated mercury vapor levels are detected. You must 
prepare and submit to the Administrator a cell room monitoring plan 
containing the elements listed in Table 11 to this subpart and meet the 
requirements in paragraphs (i)(1) through (4) of this section.
    (1) You must utilize a mercury monitoring system that meets the 
requirements of Table 8 to this subpart.
    (2) You must establish action levels according to the requirements 
in paragraphs (i)(2)(i) through (iii) of this section. You must 
establish an initial action level after the compliance date specified 
in Sec.  63.8186(a)(2) or (3), and you must re-establish an action 
level at least once every six months thereafter.
    (i) You must measure and record the mercury concentration for at 
least 14 days and no more than 30 days using a system that meets the 
requirements of paragraph (i)(1) of this section. For the initial 
action level, this monitoring must begin on the applicable compliance 
date specified for your affected source in Sec.  63.8186(a)(2) or (3).
    (ii) Using the monitoring data collected according to paragraph 
(i)(2)(i) of this section, you must establish your action level at the 
90th percentile of the data set.
    (iii) You must submit your initial action level according to Sec.  
63.8252(f) and subsequent action levels according to Sec.  63.8252(g).

[[Page 13873]]

    (3) Beginning on the compliance date specified for your affected 
source in Sec.  63.8186(a)(2) or (3), you must continuously monitor the 
mercury concentration in the cell room. Failure to monitor and record 
the data according to Sec.  63.8256(e)(4)(iii) for 75 percent of the 
time in any 6-month period constitutes a deviation.
    (4) If the average mercury concentration for any 1-hour period 
exceeds the currently applicable action level established according to 
paragraph (i)(2) of this section, you must meet the requirements in 
either paragraph (i)(4)(i) or (ii) of this section.
    (i) If you determine that the cause of the elevated mercury 
concentration is an open electrolyzer, decomposer, or other maintenance 
activity, you must record the information specified in paragraphs 
(i)(4)(i)(A) through (C) of this section.
    (A) A description of the maintenance activity resulting in elevated 
mercury concentration;
    (B) The time the maintenance activity was initiated and completed; 
and
    (C) A detailed explanation how all the applicable requirements of 
Table 1 to this subpart were met during the maintenance activity.
    (ii) If you determine that the cause of the elevated mercury 
concentration is not an open electrolyzer, decomposer, or other 
maintenance activity, you must follow the procedures specified in 
paragraphs (i)(4)(ii)(A) and (B) of this section until the mercury 
concentration falls below the action level. You must also keep all the 
associated records for these procedures as specified in Table 12 to 
this subpart. Nonadherence to the intervals in paragraphs (i)(4)(ii)(A) 
and (B) of this section constitutes a deviation and must be documented 
and reported in the compliance report, as required by Sec.  63.8254(b).
    (A) Within 1 hour of the time the action level was exceeded, you 
must conduct each inspection specified in Table 2 to this subpart, with 
the exception of the cell room floor and the pillars and beam 
inspections. You must correct any problem identified during these 
inspections in accordance with the requirements in Tables 2 and 3 to 
this subpart.
    (B) If the Table 2 inspections and subsequent corrective actions do 
not reduce the mercury concentration below the action level, you must 
inspect all decomposers, hydrogen system piping up to the hydrogen 
header, and other potential locations of mercury vapor leaks using a 
technique specified in Table 6 to this subpart. If a mercury vapor leak 
is identified, you must take the appropriate action specified in Table 
3 to this subpart.
    16. Section 63.8230 is amended by revising paragraph (b) and adding 
paragraph (c) to read as follows:


Sec.  63.8230  By what date must I conduct performance tests or other 
initial compliance demonstrations?

* * * * *
    (b) For the applicable work practice standards in Sec.  63.8192(a) 
through (g), you must demonstrate initial compliance within 30 calendar 
days after the compliance date that is specified for your affected 
source in Sec.  63.8186(a)(1).
    (c) For the applicable work practice standards in Sec.  63.8192(e), 
(f), (h), and (i), you must demonstrate initial compliance within 60 
calendar days after the applicable compliance date that is specified 
for your affected source in Sec.  63.8186(a)(2) or (3).
    17. Section 63.8236 is amended by revising paragraph (c) 
introductory text and by adding paragraphs (e) and (f) to read as 
follows:


Sec.  63.8236  How do I demonstrate initial compliance with the 
emission limitations and work practice standards?

* * * * *
    (c) For each affected source, you have demonstrated initial 
compliance with the applicable work practice standards in Sec.  
63.8192(a) through (g) if you comply with paragraphs (c)(1) through (7) 
of this section:
* * * * *
    (e) After the date of publication of the final rule in the Federal 
Register, for each affected source, you have demonstrated initial 
compliance with the applicable work practice standards in Sec.  
63.8192(e), (f), (h), and (i) if you comply with paragraphs (e)(1) 
through (4) of this section:
    (1) You certify in your Revised Work Practice Notification of 
Compliance Status that you are operating according to the work practice 
standards in Sec.  63.8192(h).
    (2) You have submitted your cell room monitoring plan as part of 
your Revised Work Practice Notification of Compliance Status and you 
certify in your Revised Work Practice Notification of Compliance Status 
that you are operating according to the continuous cell room monitoring 
program under Sec.  63.8192(i) and that you have established your 
initial action level according to Sec.  63.8192(i)(2).
    (3) You have re-submitted your washdown plan as part of your 
Revised Work Practice Notification of Compliance Status and you re-
certify in your Revised Work Practice Notification of Compliance Status 
that you are operating according to your washdown plan.
    (4) You have re-submitted records of the mass of virgin mercury 
added to cells for the 5 years preceding December 19, 2006, as part of 
your Revised Work Practice Notification of Compliance Status.
    (f) You must submit the Revised Work Practice Notification of 
Compliance Status containing the results of the initial compliance 
demonstration according to the requirements in Sec.  63.8252(f).
    18. Section 63.8246 is amended by revising the first sentence of 
paragraph (b)(1) introductory text to read as follows:


Sec.  63.8246  How do I demonstrate continuous compliance with the 
emission limitations and work practice standards?

* * * * *
    (b) * * *
    (1) For each mercury thermal recovery unit vent, you must 
demonstrate continuous compliance with the applicable emission limit 
specified in Sec.  63.8190(a)(3) by maintaining the outlet mercury 
daily-average concentration no higher than the applicable limit. * * *
* * * * *
    19. Section 63.8252 is amended by adding paragraphs (f) and (g) to 
read as follows:


Sec.  63.8252  What notifications must I submit and when?

* * * * *
    (f) You must submit a Revised Work Practice Notification of 
Compliance Status according to paragraphs (f)(1) and (2) of this 
section.
    (1) You must submit a Revised Work Practice Notification of 
Compliance Status before the close of business on the date 60 days 
after the applicable compliance date in Sec.  63.8186(a)(2) or (3). The 
Revised Work Practice Notification of Compliance Status must contain 
the items in paragraphs (f)(1)(i) through (iii) of this section:
    (i) A certification that you are operating according to the work 
practice standards in Sec.  63.8192(h).
    (ii) Your cell room monitoring plan, including your initial action 
level determined in accordance with Sec.  63.8192(i)(2), and a 
certification that you are operating according to the continuous cell 
room monitoring program under Sec.  63.8192(i).
    (iii) Your washdown plan, and a certification that you are 
operating according to your washdown plan under Sec.  63.8192(e).
    (2) Records of the mass of virgin mercury added to cells for the 5 
years preceding December 19, 2006.

[[Page 13874]]

    (g) You must submit subsequent action levels determined in 
accordance with Sec.  63.8192(i)(2), along with the supporting data 
used to establish the action level, within 30 calendar days after 
completion of data collection.
    20. Section 63.8254 is amended by revising paragraph (b)(7) 
introductory text to read as follows:


Sec.  63.8254  What reports must I submit and when?

* * * * *
    (b) * * *
    (7) For each deviation from the requirements for work practice 
standards in Tables 1 through 4 to this subpart that occurs at an 
affected source (including deviations where the response intervals were 
not adhered to as described in Sec.  63.8192(b)), each deviation from 
the cell room monitoring program monitoring and data recording 
requirements in Sec.  63.8192(i)(3), and each deviation from the 
response intervals required by Sec.  63.8192(i)(4) when an action level 
is exceeded, the compliance report must contain the information in 
paragraphs (b)(1) through (4) of this section and the information in 
paragraphs (b)(7)(i) and (ii) of this section. This includes periods of 
startup, shutdown, and malfunction.
* * * * *
    21. Section 63.8256 is amended by revising paragraph (c) 
introductory text and adding paragraph (e) to read as follows:


Sec.  63.8256  What records must I keep?

* * * * *
    (c) Records associated with the work practice standards that must 
be kept prior to the applicable compliance date in Sec.  63.8186(a)(2) 
or (3).
* * * * *
    (e) Records associated with the work practice standards that must 
be kept after the applicable compliance date in Sec.  63.8186(a)(2) or 
(3).
    (1) You must keep the records specified in paragraphs (e)(1)(i) and 
(ii) of this section.
    (i) A weekly record certifying that you have complied with the work 
practice standards in Tables 1 through 4 to this subpart. This record 
must, at minimum, list each general requirement specified in paragraphs 
(e)(1)(i)(A) through (D) of this section. Figure 1 to this subpart 
provides an example of this record.
    (A) The design, operation, and maintenance requirements in Table 1 
to this subpart,
    (B) The required inspections in Table 2 to this subpart,
    (C) The required actions for liquid mercury spills and 
accumulations and hydrogen and mercury vapor leaks in Table 3 to this 
subpart, and
    (D) The requirements for mercury liquid collection in Table 4 to 
this subpart.
    (ii) The records specified in Table 12 to this subpart related to 
mercury and hydrogen leaks.
    (2) You must maintain a copy of your current washdown plan and 
records of when each washdown occurs.
    (3) You must maintain records of the mass of virgin mercury added 
to cells for each reporting period.
    (4) You must keep your current cell room monitoring plan and the 
records specified in paragraphs (e)(4)(i) through (vi) of this section.
    (i) Records of the monitoring conducted in accordance with Sec.  
63.8192(i)(2)(i) to establish your action levels, and records 
demonstrating the development of these action levels.
    (ii) During each period that you are gathering cell room monitoring 
data in accordance with the requirements of Sec.  63.8192(i)(2)(i), 
records specified in Table 9.
    (iii) Records of the cell room mercury concentration monitoring 
data collected.
    (iv) Instances when the action level is exceeded.
    (v) Records specified in Sec.  63.8192(i)(4)(i) for maintenance 
activities that cause the mercury vapor concentration to exceed the 
action level.
    (vi) Records of all inspections and corrective actions taken in 
response to a non-maintenance related situation in which the mercury 
vapor concentration exceeds the action level as specified in Table 12 
of this subpart.
    22. Section 63.8266 is amended by revising the definitions of 
``Mercury cell chlor-alkali plant'' and ``Mercury recovery facility'' 
to read as follows:


Sec.  63.8266  What definitions apply to this subpart?

* * * * *
    Mercury cell chlor-alkali plant means all contiguous or adjoining 
property that is under common control, where a mercury cell chlor-
alkali production facility and/or a mercury recovery facility is 
located. A mercury cell chlor-alkali plant includes a mercury recovery 
facility at a plant where the mercury cell chlor-alkali production 
facility ceases production.
* * * * *
    Mercury recovery facility means an affected source consisting of 
all processes and associated operations needed for mercury recovery 
from wastes generated by a mercury cell chlor-alkali plant.
* * * * *
    23. The tables to subpart IIIII are amended as follows:
    a. By revising the heading to table 5;
    b. By revising the introductory text to table 9;
    c. By adding tables 11 and 12; and
    d. By adding figure 1:
* * * * *

TABLE 5 TO SUBPART IIIII OF PART 63 --REQUIRED ELEMENTS OF FLOOR-LEVEL 
MERCURY VAPOR MEASUREMENT AND CELL ROOM MONITORING PLANS PRIOR TO THE 
APPLICABLE COMPLIANCE DATE SPECIFIED IN Sec.  63.8186(a)(2) OR (3)

* * * * *

TABLE 9 TO SUBPART IIIII OF PART 63--REQUIRED RECORDS FOR WORK PRACTICE 
STANDARDS

    As stated in Sec.  63.8256(c), you must keep the records (related 
to the work practice standards) specified in the following table prior 
to the applicable compliance date specified in Sec.  63.8186(a)(2) or 
(3). After the applicable compliance date specified in Sec.  
63.8186(a)(2) or (3), you must keep the records (related to the work 
practice standards) specified in the following table during the period 
when you are collecting cell room monitoring data in accordance with 
Sec.  63.8192(i)(2)(i) to establish your action level:
* * * * *

TABLE 11 TO SUBPART IIIII of Part 63--REQUIRED ELEMENTS CELL ROOM 
MONITORING PLANS AFTER THE APPLICABLE COMPLIANCE DATE SPECIFIED IN 
Sec.  63.8186(a)(2) OR (3)

    Your Cell Room Monitoring Plan required by Sec.  63.8192(i) must 
contain the elements listed in the following table:

------------------------------------------------------------------------
You must specify in your cell room
       monitoring plan * * *               Additional requirements
------------------------------------------------------------------------
1. Details of your mercury
 monitoring system.
2. How representative sampling      Include some pre-plan measurements
 will be conducted.                  to demonstrate the profile of
                                     mercury concentration in the cell
                                     room and how the selected sampling
                                     locations ensure conducted
                                     representativeness.

[[Page 13875]]

 
3. Quality assurance/quality        Include a description of how you
 control procedures for your         will keep records or other means to
 mercury monitoring system.          demonstrate that the system is
                                     operating properly.
4. Your current action level......  Include the background data used to
                                     establish your current level.
                                     Records of previous action levels
                                     must be kept for 5 years in
                                     accordance with Sec.   63.8258, but
                                     are not required to be included as
                                     part of your cell room monitoring
                                     plan.
------------------------------------------------------------------------

TABLE 12 TO SUBPART IIIII OF PART 63--REQUIRED RECORDS FOR WORK 
PRACTICE STANDARDS AFTER THE APPLICABLE COMPLIANCE DATE SPECIFIED IN 
Sec.  63.8186(a)(2) OR (3)

    As stated in Sec.  63.8256(e)(1), you must keep the records 
(related to the work practice standards) specified in the following 
table;

------------------------------------------------------------------------
                                        You must record the following
          For each * * *                      information * * *
------------------------------------------------------------------------
1. Liquid mercury spill or          a. Location of the liquid mercury
 accumulation identified during an   spill or accumulation.
 inspection required by Table 2 to
 this subpart or at any other time.
                                    b. Method you use to clean up the
                                     liquid mercury spill or
                                     accumulation.
                                    c. Date and time when you clean up
                                     the liquid mercury spill or
                                     accumulation.
                                    d. Source of the liquid mercury
                                     spill or accumulation.
                                    e. If the source of the liquid
                                     mercury spill or accumulation is
                                     not identified, the time when you
                                     inspect the area.
2. Liquid mercury leak or hydrogen  a. Location of the leak.
 leak identified during an
 inspection required by Table 2 to
 this subpart or at any other time.
                                    b. Date and time you identify the
                                     leak.
                                    c. If the leak is a liquid mercury
                                     leak, the date and time that you
                                     successfully contain the dripping
                                     liquid mercury.
                                    d. Date and time you successfully
                                     stop the leak and repair the
                                     leaking equipment.
------------------------------------------------------------------------

BILLING CODE 6560-50-P

[[Page 13876]]

[GRAPHIC] [TIFF OMITTED] TP14MR11.001

BILLING CODE 6560-50-C

[AMENDMENTS INDEPENDENT OF WHICH OPTION IS SELECTED]

Subpart IIIII--[AMENDED]

    24. Section 63.8226 is revised to read as follows:


Sec.  63.8226  What are my general requirements for complying with this 
subpart?

    (a) You must be in compliance with the applicable emission 
limitations in Sec.  63.8190 at all times. Prior to achieving 
compliance with Sec.  63.8190(b), you must be in compliance with the 
applicable work practice standards in Sec.  63.8192 at all times.
    (b) At all times you must operate and maintain any affected source, 
including associated air pollution control equipment and monitoring 
equipment, in a manner consistent with safety and good air pollution 
control practices for minimizing emissions. The general duty to 
minimize emissions does not require you to make any further efforts to 
reduce emissions if levels required by this standard have been 
achieved. Determination of whether such operation and maintenance 
procedures are being used will be based on information available to the 
Administrator which may include, but is not limited to, monitoring 
results, review of operation and maintenance procedures, review of 
operation and maintenance records, and inspection of the source.
    25. Section 63.8232 is amended by removing and reserving paragraph 
(a) to read as follows:


Sec.  63.8232  [Amended]

    (a) [Reserved]
* * * * *
    26. Section 63.8242 is amended by revising paragraph (a)(2) to read 
as follows:


Sec.  63.8242  What are the installation, operation, and maintenance 
requirements for my continuous monitoring systems?

    (a) * * *
    (2) Each mercury continuous emissions monitor analyzer must have a 
detector with the capability to detect a

[[Page 13877]]

mercury concentration of either 0.5 times the mercury concentration 
level measured during the performance test conducted according to Sec.  
63.8232 or 0.1 [mu]g/m\3\.
* * * * *
    27. Section 63.8246 is amended by revising paragraph (b)(1) to read 
as follows:


Sec.  63.8246  How do I demonstrate continuous compliance with the 
emission limitations and work practice standards?

* * * * *
    (b) * * *
    (1) For each mercury thermal recovery unit vent, you must 
demonstrate continuous compliance with the applicable emission limit 
specified in Sec.  63.8190(a)(3) by maintaining the outlet mercury 
daily-average concentration no higher than the applicable limit. To 
determine the outlet mercury concentration, you must monitor according 
to paragraphs (b)(1)(i) or (ii) of this section.
* * * * *
    28. Section 63.8248 is amended as follows:
    a. Revising paragraph (a)(1);
    b. Revising paragraph (a)(2); and
    c. Removing and reserving paragraph (b).
    The revisions read as follows:


Sec.  63.8248  What other requirements must I meet?

    (a) * * *
    (1) You must report each instance in which you did not meet each 
emission limitation in Sec.  63.8190 that applies to you.
    (2) You must report each instance in which you did not meet each 
work practice standard in Sec.  63.8192 that applies to you
* * * * *
    (b) [Reserved]
    29. Section 63.8254 is amended as follows:
    c. Removing and reserving paragraph (b)(4);
    d. Revising paragraph (b)(7) introductory text;
    e. Revising paragraph (b)(8) introductory text;
    f. Revising paragraph (b)(8)(iv);
    g. Revising paragraph (b)(8)(vi);
    h. Revising paragraph (b)(9) introductory text;
    i. Revising paragraph (b)(9)(ii);
    j. Revising paragraph (b)(9)(vi); and
    k. Removing and reserving paragraph (c).
    The revisions read as follows:


Sec.  63.8254  What reports must I submit and when?

* * * * *
    (b) * * *
    (4) [Reserved]
* * * * *
    (7) For each deviation from the requirements for work practice 
standards in Tables 1 through 4 to this subpart that occurs at an 
affected source (including deviations where the response intervals were 
not adhered to as described in Sec.  63.8192(b)), the compliance report 
must contain the information in paragraphs (b)(1) through (4) of this 
section and the information in paragraphs (b)(7)(i) and (ii) of this 
section.
* * * * *
    (8) For each deviation from an emission limitation occurring at an 
affected source where you are using a mercury continuous emission 
monitor, according to the site-specific monitoring plan required in 
Sec.  63.8242(a)(3), to comply with the emission limitation in this 
subpart, you must include the information in paragraphs (b)(1) through 
(4) of this section and the information in paragraphs (b)(8)(i) through 
(xii) of this section.
* * * * *
    (iv) The date and time that each deviation started and stopped.
* * * * *
    (vi) A breakdown of the total duration of the deviations during the 
reporting period including those that are due to control equipment 
problems, process problems, other known causes, and other unknown 
causes.
* * * * *
    (9) For each deviation from an operation and maintenance standard 
occurring at an affected source where you are using the periodic 
monitoring option specified in Sec.  63.8240(b) and your final control 
device is not a nonregenerable carbon adsorber, the compliance report 
must include the information in paragraphs (b)(1) through (4) of this 
section and the information in paragraphs (b)(9)(i) through (x) of this 
section.
* * * * *
    (ii) Information on the number, duration, and cause of deviations 
(including unknown cause, if applicable), as applicable, and the 
corrective action taken.
* * * * *
    (vi) A breakdown of the total duration of the deviations during the 
reporting period including those that are due to process problems, 
other known causes, and other unknown causes.
* * * * *
    (c) [Reserved]
* * * * *
    30. Section 63.8256 is amended by removing and reserving paragraph 
(a)(2) to read as follows:


Sec.  63.8256  What records must I keep?

    (a) * * *
    (2) [Reserved]
* * * * *
    31. Section 63.8266 is amended by revising the definitions of 
``Deviation;'' and ``Mercury cell chlor-alkali plant'' to read as 
follows:


Sec.  63.8266  What definitions apply to this subpart?

* * * * *
    Deviation means any instance in which an affected source subject to 
this subpart, or an owner or operator of such a source:
    (1) Fails to meet any requirement or obligation established by this 
subpart including, but not limited to, any emission limitation 
(including any operating limit) or work practice standard;
    (2) Fails to meet any term or condition that is adopted to 
implement an applicable requirement in this subpart and that is 
included in the title V operating permit for any affected source 
required to obtain such a permit; or
    (3) Fails to take corrective actions within 48 hours that result in 
parameter monitoring values being within range.
* * * * *
    Mercury cell chlor-alkali plant means all contiguous or adjoining 
property that is under common control, where a mercury cell chlor-
alkali production facility and/or a mercury recovery facility is 
located. A property where only a mercury recovery facility is operating 
is considered a mercury cell chlor-alkali plant if a mercury cell 
chlor-alkali production facility had operated on that property at any 
time in the past.
* * * * *
    32. Table 10 to subpart IIIII of part 63 is revised to read as 
follows:

[[Page 13878]]



           Table 10 to Subpart IIIII of Part 63--Applicability of General Provisions to Subpart IIIII
 [As stated in Sec.   63.8262, you must comply with the applicable General Provisions requirements according to
                                              the following table]
----------------------------------------------------------------------------------------------------------------
                                                                    Applies to Subpart
              Citation                         Subject                     IIIII                Explanation
----------------------------------------------------------------------------------------------------------------
Sec.   63.1........................  Applicability..............  Yes...................
Sec.   63.2........................  Definitions................  Yes...................
Sec.   63.3........................  Units and Abbreviations....  Yes...................
Sec.   63.4........................  Prohibited Activities......  Yes...................
Sec.   63.5........................  Construction/Reconstruction  Yes...................
Sec.   63.6(a)-(g), (i), (j),        Compliance with Standards    Yes...................
 except for (e)(1)(i) and (ii),       and Maintenance
 (e)(3), and (f)(1).                  Requirements.
Sec.   63.6(e)(1)(i) and (ii),       SSM Requirements...........  No....................
 (e)(3), and (f)(1).
Sec.   63.6(h).....................  Compliance with Opacity and  No....................  Subpart IIIII does not
                                      Visible Emission Standards.                          have opacity and
                                                                                           visible emission
                                                                                           standards.
Sec.   63.7(a)(1), (b)-(h), except   Performance Testing          Yes...................  Subpart IIIII
 (e)(1).                              Requirements.                                        specifies additional
                                                                                           requirements related
                                                                                           to site-specific test
                                                                                           plans and the conduct
                                                                                           of performance tests.
Sec.   63.7(e)(1)..................  Performance Testing          No....................
                                      Requirements Related to
                                      SSM.
Sec.   63.7(a)(2)..................  Applicability and            No....................  Subpart IIIII requires
                                      Performance Test Dates.                              the performance test
                                                                                           to be performed on
                                                                                           the compliance date.
Sec.   63.8(a)(1), (a)(3); (b);      Monitoring Requirements....  Yes...................
 (c)(1)-(4), (6)-(8); (d); (e); and
 (f)(1)-(5).
Sec.   63.8(a)(2)..................  Continuous Monitoring        No....................  Subpart IIIII requires
                                      System (CMS) Requirements.                           a site-specific
                                                                                           monitoring plan in
                                                                                           lieu of a promulgated
                                                                                           performance
                                                                                           specification for a
                                                                                           mercury concentration
                                                                                           CMS.
Sec.   63.8(a)(4)..................  Additional Monitoring        No....................  Subpart IIIII does not
                                      Requirements for Control                             require flares.
                                      Devices in Sec.   63.11.
Sec.   63.8(c)(5)..................  COMS Minimum Procedures....  No....................  Subpart IIIII does not
                                                                                           have opacity and
                                                                                           visible emission
                                                                                           standards.
Sec.   63.8(f)(6)..................  Alternative to Relative      No....................  Subpart IIIII does not
                                      Accuracy Test.                                       require CEMS.
Sec.   63.8(g).....................  Data Reduction.............  No....................  Subpart IIIII
                                                                                           specifies mercury
                                                                                           concentration CMS
                                                                                           data reduction
                                                                                           requirements.
Sec.   63.9(a)-(e), (g)-(j)........  Notification Requirements..  Yes...................
Sec.   63.9(f).....................  Notification of VE/Opacity   No....................  Subpart IIIII does not
                                      Test.                                                have opacity and
                                                                                           visible emission
                                                                                           standards.
Sec.   63.10(a); (b)(1); (b)(2)(vi)- Recordkeeping/Reporting....  Yes...................
 (xii), (xiv); (b)(3); (c); (d)(1)-
 (2), (4); (e); (f).
Sec.   63.10(b)(2)(i)-(v), (d)(5)..  Recordkeeping/Reporting      No....................
                                      Associated with Startup,
                                      Shutdown, and Malfunctions.
Sec.   63.10(b)(2)(xiii)...........  CMS Records for RATA         No....................  Subpart IIIII does not
                                      Alternative.                                         require CEMS.
Sec.   63.10(d)(3).................  Reporting Opacity or VE....  No....................  Subpart IIIII does not
                                     Observations...............                           have opacity and
                                                                                           visible emission
                                                                                           standards.
Sec.   63.11.......................  Flares.....................  No....................  Subpart IIIII does not
                                                                                           require flares.
Sec.   63.12.......................  Delegation.................  Yes...................
Sec.   63.13.......................  Addresses..................  Yes...................
Sec.   63.14.......................  Incorporation by Reference.  Yes...................
Sec.   63.15.......................  Availability of Information  Yes...................
----------------------------------------------------------------------------------------------------------------


[FR Doc. 2011-5530 Filed 3-11-11; 8:45 am]
BILLING CODE 6560-50-P