[Federal Register Volume 76, Number 220 (Tuesday, November 15, 2011)]
[Rules and Regulations]
[Pages 70834-70859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29287]



[[Page 70833]]

Vol. 76

Tuesday,

No. 220

November 15, 2011

Part II





Environmental Protection Agency





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40 CFR Part 63





National Emission Standards for Hazardous Air Pollutant Emissions for 
Primary Lead Processing; Final Rule

  Federal Register / Vol. 76 , No. 220 / Tuesday, November 15, 2011 / 
Rules and Regulations  

[[Page 70834]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2004-0305; FRL-9491-2]
RIN 2060-AQ43


National Emission Standards for Hazardous Air Pollutant Emissions 
for Primary Lead Processing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action finalizes the residual risk and technology review 
conducted for the Primary Lead Processing source category regulated 
under national emission standards for hazardous air pollutants 
(NESHAP). This action finalizes amendments to the NESHAP that include 
revision of the rule's title and applicability provision, revisions to 
the stack emission limits for lead, work practice standards to minimize 
fugitive dust emissions, and the modification and addition of testing 
and monitoring and related notification, recordkeeping, and reporting 
requirements. It also finalizes revisions to the regulatory provisions 
related to emissions during periods of startup, shutdown, and 
malfunction and makes minor non-substantive changes to the rule.

DATES: This final action is effective on November 15, 2011.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2004-0305. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although listed in 
the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, 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 EPA Docket Center, EPA West 
Building, Room Number 3334, 1301 Constitution Ave. NW., Washington, DC. 
The Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m. 
Eastern Standard Time (EST), Monday through Friday. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the Air and Radiation Docket and Information Center is (202) 
566-1742.

FOR FURTHER INFORMATION CONTACT: For questions about this final action, 
contact Mr. Nathan Topham, Office of Air Quality Planning and 
Standards, Sector Policies and Programs Division, U.S. Environmental 
Protection Agency, Research Triangle Park, NC 27711; telephone number: 
(919) 541-0483; fax number: (919) 541-3207; and email address: 
[email protected]. For additional contact information, see the 
following SUPPLEMENTARY INFORMATION section.

SUPPLEMENTARY INFORMATION:  For specific information regarding the 
modeling methodology, contact Dr. Michael Stewart, Office of Air 
Quality Planning and Standards, Health and Environmental Impacts 
Division, Air Toxics Assessment Group (C504-06), U.S. Environmental 
Protection Agency, Research Triangle Park, NC 27711; telephone number: 
(919) 541-7524; fax number: (919) 541-0840; and email address: 
[email protected]. For information about the applicability of 
this NESHAP to a particular entity, contact the appropriate person 
listed in Table 1 to this preamble.

  Table 1--List of EPA Contacts for the NESHAP Addressed in This Action
------------------------------------------------------------------------
         NESHAP for:            OECA Contact \1\      OAQPS Contact \2\
------------------------------------------------------------------------
Primary Lead Processing.....  Maria Malave, (202)   Nathan Topham, (919)
                               564-7027,             541-0483,
                               [email protected]   [email protected]
                               v.                    ov.
------------------------------------------------------------------------
\1\ EPA's Office of Enforcement and Compliance Assurance.
\2\ EPA's Office of Air Quality Planning and Standards.

    Background Information Document. On February 17, 2011 (76 FR 9410), 
the EPA proposed revisions to the Primary Lead Smelting NESHAP based on 
evaluations performed by the EPA in order to conduct our risk and 
technology review. In this action, we are finalizing decisions and 
revisions for the rule. Some of the significant comments and our 
responses are summarized in this preamble; a summary of the other 
public comments on the proposal, and the EPA's responses to those 
comments, is available in Docket ID No. EPA-HQ-OAR-2004-0305. A red-
line version of the regulatory language that incorporates the changes 
in this action is available in the docket.
    Organization of This Document. The following outline is provided to 
aid in locating information in the preamble.

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document?
    C. Judicial Review
II. Background
III. Summary of the Final Rule
    A. What are the final rule amendments for the Primary Lead 
Processing source category?
    B. What are the requirements during periods of startup, 
shutdown, and malfunction?
    C. What are the effective and compliance dates of the standards?
IV. Summary of Significant Changes Since Proposal
    A. Changes to the Risk Assessment Performed Under Section 112(f) 
of the Clean Air Act
    B. Changes to the Technology Review Performed Under Section 
112(d)(6) of the Clean Air Act
    C. Other Changes Since Proposal
V. Summary of Significant Comments and Responses
    A. Timeline for Compliance
    B. The EPA's Authority Under Section 112 of the Clean Air Act
    C. Primary Lead Processing Risk Assessment
VI. Impacts of the Final Rule
VII. Statutory and Executive Order Reviews
    A. Executive Orders 12866: Regulatory Planning and Review, and 
Executive Order 13563: Improving Regulation and Regulatory 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 Risks 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

[[Page 70835]]

    K. Congressional Review Act

I. General Information

A. Does this action apply to me?

    Regulated Entities. Categories and entities potentially regulated 
by this action include:

 Table 2--NESHAP and Industrial Source Categories Affected by This Final
                                 Action
------------------------------------------------------------------------
    NESHAP and source category        NAICS \1\ code     MACT \2\ code
------------------------------------------------------------------------
Primary Lead Processing...........             331419               0204
------------------------------------------------------------------------
\1\ North American Industry Classification System.
\2\ Maximum Achievable Control Technology.

    Table 2 is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by the final 
action for the source category listed. To determine whether your 
facility would be affected, you should examine the applicability 
criteria in the appropriate national emission standards for hazardous 
air pollutants (NESHAP). As defined in the source category listing 
report published by the EPA in 1992, the Primary Lead Smelting source 
category is defined as any facility engaged in producing lead metal 
from ore concentrates; including, but not limited to, the following 
smelting processes: Sintering, reduction, preliminary treatment, and 
refining operations.\1\ To be consistent with the 1992 listing, the EPA 
is revising the applicability of the Primary Lead Smelting NESHAP to 
apply to any facility that produces lead metal from lead ore 
concentrates and is changing the title of the rule to reference Primary 
Lead Processing. For clarification purposes, all reference to lead 
emissions in this preamble means ``lead compounds'' (which is a 
hazardous air pollutant) and all reference to lead production means 
elemental lead (which is not a hazardous air pollutant) as provided 
under Clean Air Act (CAA) section 112(b)(7)).
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    \1\ USEPA. Documentation for Developing the Initial Source 
Category List--Final Report, USEPA/OAQPS, EPA-450/3-91-030, July, 
1992.
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    If you have any questions regarding the applicability of any aspect 
of the Primary Lead Processing NESHAP, please contact the appropriate 
person listed in Table 1 of this preamble in the preceding FOR FURTHER 
INFORMATION CONTACT section.

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

    In addition to being available in the docket, an electronic copy of 
this final action will also be available on the World Wide Web (www) 
through the Technology Transfer Network (TTN). Following signature, a 
copy of the final action will be posted on the TTN's policy and 
guidance page for newly proposed and promulgated rules at the following 
address: http://www.epa.gov/ttn/caaa/new.html. The TTN provides 
information and technology exchange in various areas of air pollution 
control.
    Additional information is available on the residual risk and 
technology review (RTR) web page at http://www.epa.gov/ttn/atw/rrisk/rtrpg.html. This information includes source category descriptions and 
detailed emissions and other data that were used as inputs to the risk 
assessments.

C. Judicial Review

    Under section 307(b)(1) of the CAA, judicial review of this final 
action is available only by filing a petition for review in the United 
States Court of Appeals for the District of Columbia Circuit by January 
17, 2012. Under section 307(b)(2) of the CAA, the requirements 
established by this final rule may not be challenged separately in any 
civil or criminal proceedings brought by the EPA to enforce the 
requirements.
    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an 
objection to a rule or procedure which was raised with reasonable 
specificity during the period for public comment (including any public 
hearing) may be raised during judicial review.'' This section also 
provides a mechanism for us to convene a proceeding for 
reconsideration, ``[i]f the person raising an objection can demonstrate 
to the EPA that it was impracticable to raise such objection within 
[the period for public comment] or if the grounds for such objection 
arose after the period for public comment (but within the time 
specified for judicial review) and if such objection is of central 
relevance to the outcome of the rule.'' Any person seeking to make such 
a demonstration to us should submit a Petition for Reconsideration to 
the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios 
Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy 
to both the person(s) listed in the preceding FOR FURTHER INFORMATION 
CONTACT section, and the Associate General Counsel for the Air and 
Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. 
EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460.

II. Background

    Section 112 of the CAA establishes a two-stage regulatory process 
to address emissions of hazardous air pollutants (HAP) from stationary 
sources. In the first stage, after the EPA has identified categories of 
sources emitting one or more of the HAP listed in section 112(b) of the 
CAA, section 112(d) calls for us to promulgate NESHAP for those 
sources. ``Major sources'' are those that emit, or have the potential 
to emit, any single HAP at a rate of 10 tons per year (TPY) or more, or 
25 TPY or more of any combination of HAP. For major sources, these 
technology-based standards must reflect the maximum degree of emission 
reductions of HAP achievable (after considering cost, energy 
requirements, and non-air quality health and environmental impacts) and 
are commonly referred to as maximum achievable control technology 
(MACT) standards.
    For MACT standards, the statute specifies certain minimum 
stringency requirements, which are referred to as floor requirements 
and may not be based on cost considerations. See CAA section 112(d)(3). 
For new sources, the MACT floor cannot be less stringent than the 
emission control that is achieved in practice by the best controlled 
similar source. The MACT standards for existing sources can be less 
stringent than floors for new sources, but they cannot be less 
stringent than the average emission limitation achieved by the best-
performing 12 percent of existing sources in the category or 
subcategory (or the best-performing five sources for categories or 
subcategories with fewer

[[Page 70836]]

than 30 sources). In developing MACT, we must also consider control 
options that are more stringent than the floor, under CAA section 
112(d)(2). We may establish standards more stringent than the floor, 
based on the consideration of the cost of achieving the emissions 
reductions, any non-air quality health and environmental impacts, and 
energy requirements. In promulgating MACT standards, CAA section 
112(d)(2) directs us to consider the application of measures, 
processes, methods, systems, or techniques that reduce the volume of or 
eliminate HAP emissions through process changes, substitution of 
materials, or other modifications; enclose systems or processes to 
eliminate emissions; collect, capture, or treat HAP when released from 
a process, stack, storage, or fugitive emissions point; and/or are 
design, equipment, work practice, or operational standards.
    In the second stage of the regulatory process, we undertake two 
different analyses, as required by the CAA: section 112(d)(6) of the 
CAA calls for us to review these technology-based standards and to 
revise them ``as necessary (taking into account developments in 
practices, processes, and control technologies)'' no less frequently 
than every 8 years; and within 8 years after promulgation of the 
technology standards, CAA section 112(f) calls for us to evaluate the 
risk to public health remaining after application of the technology-
based standards and to revise the standards, if necessary, to provide 
an ample margin of safety to protect public health or to prevent, 
taking into consideration costs, energy, safety, and other relevant 
factors, an adverse environmental effect. In doing so, the EPA may 
adopt standards equal to existing MACT standards if the EPA determines 
that the existing standards are sufficiently protective. NRDC v. EPA, 
529 F.3d 1077, 1083 (DC Cir. 2008).
    On February 17, 2011, the EPA published a proposed rule in the 
Federal Register for the Primary Lead Smelting NESHAP, 40 CFR part 63 
subpart TTT, that took into consideration the residual risk and 
technology review (RTR) analyses for that source category. This action 
provides the EPA's final determinations pursuant to the RTR provisions 
of CAA section 112 for the Primary Lead Processing source category. 
Specifically, as a result of our analyses, we are revising the 
requirements of the NESHAP to ensure public health and the environment 
are protected consistent with section 112(f) and that emission 
reductions are consistent with what is economically and technically 
feasible under section 112(d)(6). In addition, we are taking the 
following actions:
     Revising the requirements in the NESHAP related to 
emissions during periods of startup, shutdown, and malfunction (SSM).
     Revising the title of the rule and amending the 
applicability section consistent with the definition of the source 
category adopted in 1992, to provide that the NESHAP applies to any 
facility processing lead ore concentrate to produce lead metal.
     Replacing the definition of ``primary lead smelter'' with 
a definition of ``primary lead processor'' and adding definitions of 
``secondary lead smelters,'' ``lead refiners,'' and ``lead remelters.''
     Incorporating the use of plain language into the rule.
     Addressing technical and editorial corrections in the 
rule.
     Responding to the January 2009 petition for rulemaking 
from the Natural Resources Defense Council (NRDC) that the original 
primary lead NESHAP should have included an emission standard for 
organic HAP and announcing our intention to collect additional data 
needed to develop a standard for organic HAP.
    We note that the Doe Run Herculaneum Smelter, the only facility in 
the source category, is subject to a Consent Decree requiring 
submission of a facility-wide cleanup plan by January 1, 2013, shutdown 
of their sintering operations by the end of 2013, and shutdown of the 
blast furnace by April 30, 2014. The Consent Decree will achieve 
drastic reductions in emissions of lead and other pollutants and will 
provide substantial environmental and public health benefits. The 
Herculaneum area has also been designated as a nonattainment area for 
the 2008 National Ambient Air Quality Standards (NAAQS) for lead. 
Attainment of the 2008 Lead NAAQS (which is demonstrated based on three 
years of data at or below the level of the NAAQS) is required by 
December 2015. The State of Missouri is required to submit its 
attainment demonstration State Implementation Plan (SIP) by June 30, 
2012.

III. Summary of the Final Rule

A. What are the final rule amendments for the Primary Lead Processing 
source category?

    The National Emission Standards for Hazardous Air Pollutant 
Emissions: Primary Lead Smelting was promulgated on June 6, 1999 (64 FR 
30204), and codified at 40 CFR part 63, subpart TTT. The primary lead 
processing industry consists of facilities that produce lead metal from 
ore concentrates. The source category covered by this MACT standard 
currently includes only one operating facility, The Doe Run Company in 
Herculaneum, Missouri.
    For the reasons provided in the proposed rule and in the support 
documents in the docket, we have determined that the risks associated 
with this source category are unacceptable and are therefore 
promulgating requirements to reduce the risk to an acceptable level. 
Once risk is reduced to an acceptable level, we analyze whether there 
are additional controls that will provide an ample margin of safety, 
considering cost, energy, safety, and other relevant factors. We have 
concluded that there are no additional cost-effective controls 
available beyond those that we are requiring to reduce risk to an 
acceptable level and thus the same controls to ensure an acceptable 
level of risk will also provide an ample margin of safety. To satisfy 
section 112(f) of the CAA, we are, therefore, revising the existing 
MACT standard to include:
     An emission cap of 1.2 TPY for the furnace area stack and 
the refining operation stacks, combined.\2\
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    \2\ EPA notes that it is setting a combined emission limit for 
these sources because, as noted in the proposal (76 FR 9432), and 
the risk assessment documents to support the proposed and final 
rulemakings, these sources have overlapping points of maximum lead 
impact.
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     Work practice standards to minimize fugitive dust 
emissions.
    To satisfy section 112(d)(6) of the CAA, we are revising the 
existing MACT standard to include a reduction of the lead emission 
limit for the main stack. The MACT standard is being lowered from the 
current 1.0 pound per ton of lead produced to 0.97 pound of lead per 
ton of lead produced based on a determination that developments in 
practices, processes, or control technologies since promulgation of the 
MACT standards demonstrate that the facility can meet a reduced 
emission limit from the main stack pursuant to CAA section 112(d)(6).
    In addition to our reviews under sections 112(f) and 112(d)(6) of 
the CAA, we are promulgating the following:
     The revision of the applicability section of the rule 
consistent with the definition of the source category adopted in 1992, 
subpart TTT which applies to any facility that produces lead metal from 
lead concentrate ore.
     Changes to the Primary Lead Processing MACT standards to

[[Page 70837]]

eliminate the SSM exemption. These changes revise Table 1 in 40 CFR 
part 63, subpart TTT to indicate that several requirements of the 40 
CFR part 63 General Provisions related to periods of SSM do not apply. 
We are adding provisions to the Primary Lead Processing MACT standards 
requiring sources to operate in a manner that minimizes emissions, 
removing the SSM plan requirement, clarifying the required conditions 
for performance tests, and revising the SSM-associated recordkeeping 
and reporting requirements to require reporting and recordkeeping for 
periods of malfunction. We are also adding provisions to provide an 
affirmative defense against civil penalties for exceedances of emission 
standards caused by malfunctions, as well as criteria for establishing 
the affirmative defense.
     Replacement of the word ``shall'' with the word ``must'' 
in the regulatory text. We are also replacing ``thru'' with 
``through.'' We are replacing the definition of ``primary lead 
smelter'' with a definition of ``primary lead processor'' and adding 
definitions of ``secondary lead smelters,'' ``lead refiners,'' and 
``lead remelters.''
    These revisions to the Primary Lead Processing MACT standard are 
expected to result in emissions reductions in lead and other hazardous 
air pollutants and increased compliance costs to the industry. No 
economic impacts on small businesses are expected as a result of the 
revisions to the rule. We have determined that the one facility in this 
source category can meet the applicable emissions standards at all 
times, including periods of startup and shutdown, in compliance with 
the current MACT standards.

B. What are the requirements during periods of startup, shutdown, and 
malfunction?

    The United States Court of Appeals for the District of Columbia 
Circuit vacated portions of two provisions in the EPA's CAA Section 112 
regulations governing the emissions of HAP during periods of startup, 
shutdown, and malfunction (SSM). Sierra Club v. EPA, 551 F.3d 1019 (DC 
Cir. 2008), cert. denied, 130 S. Ct. 1735 (U.S. 2010). Specifically, 
the Court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and 
40 CFR 63.6(h)(1), that are part of a regulation, commonly referred to 
as the ``General Provisions Rule,'' that the EPA promulgated under 
section 112 of the CAA. When incorporated into CAA Section 112(d) 
regulations for specific source categories, these two provisions exempt 
sources from the requirement to comply with the otherwise applicable 
CAA section 112(d) emission standard during periods of SSM.
    We have eliminated the SSM exemption in this rule. Consistent with 
Sierra Club v. EPA, the EPA has established standards in this rule that 
apply at all times. We have also revised Table 1 (the General 
Provisions table) in several respects. For example, we have eliminated 
that incorporation of the General Provisions' requirement that the 
source develop an SSM plan. We have also eliminated or revised certain 
recordkeeping and reporting that related to the SSM exemption. The EPA 
has attempted to ensure that we have not included in the regulatory 
language any provisions that are inappropriate, unnecessary, or 
redundant in the absence of the SSM exemption.
    In establishing the standards in this rule, the EPA has taken into 
account startup and shutdown periods and, for the reasons explained 
below, has not established different standards for those periods. 
Information on periods of startup and shutdown in the industry indicate 
that emissions during these periods do not increase. Furthermore, all 
processes are controlled by either control devices or work practices, 
and these controls would not typically be affected by startup or 
shutdown. Also, compliance with the standards requires averaging of 
emissions over three-month periods, which accounts for the variability 
of emissions that may result during periods of startup and shutdown. 
Therefore, separate standards for periods of startup and shutdown are 
not being promulgated.
    Periods of startup, normal operations, and shutdown are all 
predictable and routine aspects of a source's operations. However, by 
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 
usual manner * * *'' (40 CFR 63.2). The EPA has determined that CAA 
section 112 does not require that emissions that occur during periods 
of malfunction be factored into development of CAA section 112 
standards. Under section 112, emission standards for new sources must 
be no less stringent than the level ``achieved'' by the best controlled 
similar source and for existing sources generally must be no less 
stringent than the average emission limitation ``achieved'' by the best 
performing 12 percent of sources in the category. There is nothing in 
section 112 that directs the Agency to consider malfunctions in 
determining the level ``achieved'' by the best performing or best 
controlled sources when setting emission standards. Moreover, while the 
EPA accounts for variability in setting emissions standards consistent 
with the section 112 caselaw, nothing in that caselaw requires the 
Agency to consider malfunctions as part of that analysis. Section 112 
uses the concept of ``best controlled'' and ``best performing'' unit in 
defining the level of stringency that section 112 performance standards 
must meet. Applying the concept of ``best controlled'' or ``best 
performing'' to a unit that is malfunctioning presents significant 
difficulties, as malfunctions are sudden and unexpected events.
    Further, accounting for malfunctions would be difficult, if not 
impossible, given the myriad different types of malfunctions that can 
occur across all sources in the category and given the difficulties 
associated with predicting or accounting for the frequency, degree, and 
duration of various malfunctions that might occur. As such, the 
performance of units that are malfunctioning is not ``reasonably'' 
foreseeable. See, e.g., Sierra Club v. EPA, 167 F.3d 658, 662 (DC Cir. 
1999) (EPA typically has wide latitude in determining the extent of 
data-gathering necessary to solve a problem. We generally defer to an 
agency's decision to proceed on the basis of imperfect scientific 
information, rather than to ``invest the resources to conduct the 
perfect study.''). See also, 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.''). In addition, the goal of a best controlled 
or best performing source is to operate in such a way as to avoid 
malfunctions of the source and accounting for malfunctions could lead 
to standards that are significantly less stringent than levels that are 
achieved by a well-performing non-malfunctioning source. The EPA's 
approach to malfunctions is consistent with section 112 and is a 
reasonable interpretation of the statute.
    In the event that a source fails to comply with the applicable CAA 
section 112(d) standards as a result of a malfunction event, the EPA 
would determine an appropriate response based on, among other things, 
the good

[[Page 70838]]

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. The 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, the EPA recognizes that even equipment that is properly 
designed and maintained can sometimes fail and that such failure can 
sometimes cause 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)). The EPA is therefore adding to the final 
rule an affirmative defense to civil penalties for exceedances of 
emission limits that are caused by malfunctions. See 40 CFR 63.1542 
Primary Lead Processing (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 also have 
added other regulatory provisions to specify the elements that are 
necessary to establish this affirmative defense; the source must prove 
by a preponderance of the evidence that it has met all of the elements 
set forth in 63.1551 Primary Lead Processing. (See 40 CFR 22.24). The 
criteria 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). For example, to successfully assert the 
affirmative defense, the source must prove by a preponderance of the 
evidence that excess emissions ``[w]ere caused by a sudden, infrequent, 
and unavoidable failure of air pollution control and monitoring 
equipment, process equipment, or a process to operate in a normal or 
usual manner * * *.'' The criteria also are designed to ensure that 
steps are taken to correct the malfunction, to minimize emissions in 
accordance with section 63.1543(i) and 63.1544(d), and to prevent 
future malfunctions. For example, the source must prove by a 
preponderance of the evidence that ``[r]epairs were made as 
expeditiously as possible when the applicable emission limitations were 
being exceeded * * *'' and that ``[a]ll possible steps were taken to 
minimize the impact of the excess emissions on ambient air quality, the 
environment and human health * * *.'' In any judicial or administrative 
proceeding, the Administrator may 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 may be assessed in accordance with Section 113 of the Clean 
Air Act (see also 40 CFR 22.27).
    The EPA included an affirmative defense in the final rule in an 
attempt to balance a tension, inherent in many types of air regulation, 
to ensure adequate compliance while simultaneously recognizing that 
despite the most diligent of efforts, emission limits may be exceeded 
under circumstances beyond the control of the source. The EPA must 
establish emission standards that ``limit the quantity, rate, or 
concentration of emissions of air pollutants on a continuous basis.'' 
42 U.S.C. 7602(k) (defining ``emission limitation and emission 
standard''). See generally Sierra Club v. EPA, 551 F.3d 1019, 1021 (DC 
Cir. 2008) Thus, the EPA is required to ensure that section 112 
emissions limitations are continuous. The affirmative defense for 
malfunction events meets this requirement by ensuring that even where 
there is a malfunction, the emission limitation is still enforceable 
through injunctive relief. While ``continuous'' limitations, on the one 
hand, are required, there is also caselaw indicating that in many 
situations it is appropriate for the EPA to account for the practical 
realities of technology. For example, in Essex Chemical v. Ruckelshaus, 
486 F.2d 427, 433 (DC Cir. 1973), the DC Circuit acknowledged that in 
setting standards under CAA section 111 ``variant provisions'' such as 
provisions allowing for upsets during startup, shutdown and equipment 
malfunction ``appear necessary to preserve the reasonableness of the 
standards as a whole and that the record does not support the `never to 
be exceeded' standard currently in force.'' See also, Portland Cement 
Association v. Ruckelshaus, 486 F.2d 375 (DC Cir. 1973). Though 
intervening caselaw such as Sierra Club v. EPA and the CAA 1977 
amendments undermine the relevance of these cases today, they support 
EPA's view that a system that incorporates some level of flexibility is 
reasonable. The affirmative defense simply provides for a defense to 
civil penalties for excess emissions that are proven to be beyond the 
control of the source. By incorporating an affirmative defense, the EPA 
has formalized its approach to upset events. In a Clean Water Act 
setting, the Ninth Circuit required this type of formalized approach 
when regulating ``upsets beyond the control of the permit holder.'' 
Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 (9th Cir. 1977). But 
see, Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057-58 (DC Cir. 1978) 
(holding that an informal approach is adequate). The affirmative 
defense provisions give the EPA the flexibility to both ensure that its 
emission limitations are ``continuous'' as required by 42 U.S.C. 
section 7602(k), and account for unplanned upsets and thus support the 
reasonableness of the standard as a whole.

C. What are the effective and compliance dates of the standards?

    The revisions to the MACT standards being promulgated in this 
action are effective on November 15, 2011. For the MACT standards being 
addressed in this action, the compliance date for the revised SSM 
requirements is the effective date of the standards, November 15, 2011. 
The compliance date for the revised emission standard in section 
16.1543(a) is January 17, 2012. The compliance date for the revised 
requirements in section 16.1544 is February 13, 2012. The compliance 
date for the new refining and furnace area stack emission limit is 2 
years from the effective date of the standard, November 15, 2013.

IV. Summary of Significant Changes Since Proposal

A. Changes to the Risk Assessment Performed Under Section 112(f) of the 
Clean Air Act

    As noted above, in February of 2011 EPA published the notice of 
proposed rulemaking: National Emission Standards for Hazardous Air 
Pollutants: Primary Lead Smelting. In the proposed rulemaking, EPA 
presented a number of options for additional controls on the primary 
lead smelting source category, which currently includes only one 
facility operating in the United States. In the proposed rule, EPA 
solicited comment on these options as well as on all the analyses and 
data the options were based upon, including the risk methods and 
results presented in the draft document: Draft Residual Risk

[[Page 70839]]

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

    \3\ For the reasons noted in the proposed rulemaking, 76 FR at 
9421, we used the level of the lead NAAQS as the level above which 
we think an unacceptable risk is presented to the public.

     Table 3--Summary of Lead Concentrations Relative to the NAAQS Based on Estimated Actual 2009 Emissions
----------------------------------------------------------------------------------------------------------------
                                                   2009 Emissions
                 Emission point                         (tpy)                    Offsite impact \3\
----------------------------------------------------------------------------------------------------------------
Main stack \1\..................................              68.3  0.9 times the NAAQS.
Refining stacks \2\.............................               9.1  8 times the NAAQS.
Furnace area stack: (Controlled blast and                      2.5  2 times the NAAQS.
 drossing fugitives).
Fugitive dust...................................               1.0  1 times the NAAQS.
----------------------------------------------------------------------------------------------------------------
\1\ Results presented for the main stack in this table consider the good engineering practice (GEP) stack height
  of 330 feet (as was done in the SIP and in modeling submitted by the Doe Run Company in its public comments on
  the proposed rulemaking). The actual height of the main stack is approximately 550 feet, and thus the impact
  would likely be lower had actual stack height been modeled.
\2\ Emission sources controlled by baghouses 8 and 9 at the Doe Run facility.
\3\ For a given emission point, the model receptor location with the highest modeled 3-month ambient lead
  concentration was determined. This highest 3-month ambient lead concentration was then divided by the NAAQS
  (0.15 [mu]g/m\3\) for lead to determine the maximum offsite impact for a given emission point.

    Consistent with the risk assessment to support the proposed 
rulemaking, the risk assessment to support the final rulemaking also 
indicates that risks are unacceptable. This decision considers all the 
risk estimates presented in the risk assessment document, but is 
primarily based on lead emissions from the furnace area stack and the 
refining operations stacks. We note that while the risk assessment 
supporting the proposed rulemaking estimated that a combined emission 
limit for the furnace area and refining operations should be set at 
0.91 tons of lead per year to ensure that risks are acceptable, the 
updated risk assessment estimates that a combined emission limit of 1.2 
tons of lead per year will ensure that ambient lead concentrations from 
those emission points do not result in lead levels in the ambient air 
above the level of the NAAQS for lead, thereby resulting in acceptable 
lead risk. In our ample margin of safety analysis, we identified no 
cost-effective controls that are capable of achieving emission levels 
below 1.2 tons per year, as described in the technical support 
document. Thus, the EPA is promulgating a combined lead emission limit 
for the furnace area and refining operations stacks at 1.2 tons per 
year.\4\ In addition, the risk assessment projected ambient lead 
concentrations from fugitive dust emissions to be very close to the 
NAAQS for lead at the location of maximum impact; thus with respect to 
fugitive dust emissions, since only minimal (if any) reductions beyond 
those already in place are needed to ensure lead levels in the air do 
not exceed the NAAQS, the EPA believes that the work practice standards 
being promulgated in this rule, which are more stringent than currently 
required by the 1999 NESHAP, will ensure an acceptable level of risk.
---------------------------------------------------------------------------

    \4\ EPA notes that it is setting a combined emission limit for 
these sources because, as noted in the proposal (76 FR 9432), and 
the risk assessment documents to support the proposed and final 
rulemakings, these sources have overlapping points of maximum lead 
impact.
---------------------------------------------------------------------------

    Moreover, since this NESHAP includes work practice standards to 
minimize fugitive dust emissions, and since ambient monitoring for lead 
is already conducted very close to this facility and in the local 
community to demonstrate whether the area is attaining the lead NAAQS, 
we have decided that fenceline monitoring to specifically demonstrate 
that the source has adopted sufficient work practice standards to 
ensure fugitive emissions do not cause exceedances of the NAAQS is not 
necessary.
    In addition to the updated lead risk assessment results presented 
above, we also note that there were changes to our cancer, acute, and 
PB-HAP multipathway screening analyses for non-lead HAP as a result of 
the new risk analysis performed for the final rule. With respect to our 
updated cancer risk assessment, we estimate that the maximum individual 
risk (MIR) of cancer is 20 in a million (as compared to 30 in a million 
based on the risk assessment to support the proposed rule), and that 
the cancer incidence is 0.008, or 1 excess cancer case every 125 years 
(as compared to 0.0008 based on the risk assessment to support the 
proposed rule). In addition, the refined worst-case acute hazard 
quotient (HQ) value is 2.0 (based on the REL for arsenic), driven by 
arsenic emissions from the main stack (as compared to 0.6 based on the 
REL for arsenic and driven by arsenic fugitive dust emissions as 
indicated by the risk assessment to

[[Page 70840]]

support the proposed rule). Finally, while the worst-case multipathway 
screen to support the proposed rule indicated that no non-lead PB-HAP 
exceeded screening levels for potential multipathway effects, in the 
risk assessment to support the final rulemaking, the worst-case 
multipathway screening level was exceeded with respect to cadmium 
emissions. This is the result of the revised emissions information 
provided by the company during the comment period, which indicated 
higher cadmium emissions from the main stack than were assumed for 
purposes of the risk assessment performed for the proposed rule.
    In considering the updated non-lead risk results presented above, 
we note that while cancer incidence increased in our updated risk 
assessment, cancer incidence remains very low with 1 excess cancer case 
being estimated every 125 years.
    With respect to the worst-case acute HQ value of 2 based on the REL 
for arsenic due to emissions from the main stack, we note that this is 
a conservative, worst-case analysis of the potential for acute health 
effects. We also note that in contrast to the risk analysis to support 
the proposed rulemaking, the final risk analysis modeled the main stack 
at the good engineering practice (GEP) stack height of 330 feet rather 
than the actual stack height of 550 feet. Thus it is very likely that 
the maximum potential worst-case HQ value is significantly lower than 
2.
    Finally, with respect to the exceedence of the worst-case 
multipathway screening level for cadmium, we note that this only 
indicates the potential for cadmium exposures above the chronic 
noncancer reference dose (RfD) for cadmium. That is, while in general, 
emission rates below the worst-case multipathway screening level 
indicate no significant potential for multipathway related health 
effects, emission levels above this worst-case screening level only 
indicate the potential for multipathway-related health risks of concern 
based on a worst-case scenario. We were not able to refine our multi-
pathway analysis beyond the worst-case screening assessment. As a 
result, based on worst case screening, we cannot state whether or not 
there are going to be multipathway risks at true exposure levels, we 
can only say that worst case modeling suggests there could be potential 
risks. However, due to the highly conservative nature of this screening 
assessment and the uncertainties related to the results, we have 
concluded that, after implementation of the controls required by this 
rule, risks will be acceptable, considering the combination of 
potential multipathway risks, cancer risks, chronic non-cancer risks, 
and acute non-cancer risks. We also reviewed whether there were cost-
effective controls that could further reduce risks as part of our ample 
margin of safety analysis. The controls we are requiring to address 
lead emissions also reduce emissions of non-lead HAP. We were unable to 
identify any technically feasible cost effective additional controls 
that would further reduce emissions of lead and non-lead HAP. We are 
therefore determining that the standards we are promulgating today 
provide an ample margin of safety to protect public health.
    In summary, the final rule includes an emission standard of 1.2 
tons per year of lead emissions from refining and furnace area stacks, 
combined. The standard also includes a requirement for the facility to 
employ work practice standards to minimize fugitive dust emissions, 
including cleaning plant roadways, stabilization of material during 
storage and handling, and ensuring that doorways to process areas 
remain closed. In summary, we conclude that these standards being 
promulgated today will ensure risks are acceptable and public health is 
protected with an ample margin of safety and that there will not be an 
adverse environmental effect from HAP emissions from the one lead 
processing facility in this source category.

B. Changes to the Technology Review Performed Under Section 112(d)(6) 
of the Clean Air Act

    In the proposed rule, the main stack was subject to an emission 
limit of 0.22 pounds of lead per ton of lead produced based on our 
section 112(d)(6) technology review. That proposed limit was based on 
information that indicated the source had significantly lower emissions 
than the emission limit of 1 pound of lead per ton of lead produced 
(lb/ton) required in the 1999 MACT standard. However, in comments 
received on the proposed rule, The Doe Run Company indicated that the 
proposed emission limit of 0.22 lb/ton under Section 112(d)(6) could 
not be met and that the data on which that emission limit was based 
were not accurate. The facility provided a 2009 stack emissions test 
for the main stack that indicated that emissions at the facility are 
significantly higher than we assumed as the basis for the proposed 
limit. For purposes of our analysis for the final rule, the EPA 
recalculated the emissions performance achieved for the main stack as 
demonstrated by the 2009 and 2008 stack tests and considered an 
estimate of emission variability in order to determine whether it was 
appropriate to revise the emission limit based on what the source was 
able to achieve in practice. Based on the revised analysis, we are 
promulgating an emission limit for the main stack of 0.97 pounds of 
lead per ton of lead produced.
    We have also changed the compliance date for the main stack to 
reflect compliance ``as expeditiously as possible'' under section 
112(i)(3) of the CAA. The compliance date for the 0.97 lb/ton limit is 
60 days from the date of publication of the final rule.

C. Other Changes Since Proposal

    The EPA has decided not to include the refining and furnace area 
emissions as part of a facility wide emission limit as was proposed. We 
received comments from Doe Run on the proposed rule that inclusion of 
these sources in the production based emission limit in section 
63.1543(a) was not necessary and that these sources would 
simultaneously be required to comply with the standard for refining and 
furnace area emissions proposed under section 112(f) and the production 
based limit proposed under section 112(d)(6). We agree with the 
commenters and we are establishing a separate emission limit of 1.2 
tons per year of lead emissions that applies to the combined emissions 
of the refining and furnace area stacks. The emission standard limits 
the combined emissions from these two stacks because the revised risk 
assessment indicated that the location of maximum impact for these two 
stacks overlapped at the same receptor. A production based emission 
limit will continue to apply to sources in section 63.1543(a)(1)-(9).
    As mentioned earlier, we are not finalizing a requirement for 
fenceline monitoring to ensure that fugitive dust emissions do not 
cause an exceedance of the NAAQS offsite. The revised modeling showed 
substantially lower ambient concentrations due to fugitive dust 
emissions relative to the modeling performed for the proposed rule. We 
estimate current fugitive dust emissions result in maximum lead levels 
offsite that are approximately equal to the NAAQS. We are promulgating 
work practice standards beyond what is required by the 1999 rule that 
must be implemented by the source in order to ensure that fugitive 
emissions will not result in an exceedance of the NAAQS and thus result 
in an unacceptable risk. We expect that after implementation of this 
revised NESHAP, fugitive dust emissions from primary lead processing

[[Page 70841]]

facilities will not result in exposures levels above the NAAQS. Since 
the risk levels are much lower than we had estimated at proposal, and 
since we are promulgating specific work practice requirements to 
minimize fugitive dust emissions, we have determined that the proposed 
fenceline monitoring requirement is not necessary to show compliance 
with this NESHAP. Furthermore, there are already several monitors 
nearby that measure ambient lead levels and that should provide 
sufficient indication of whether fugitive lead emissions have been 
sufficiently reduced.
    In recent rules promulgated under section 112 and 129, the EPA has 
revised certain terms and conditions of the affirmative defense in 
response to concerns raised by various commenters. The EPA is adopting 
those same revisions in this rule. Specifically, the EPA is revising 
the affirmative defense language to delete ``short'' from 
63.1551(a)(1)(i), because other criteria in the affirmative defense 
require that the source assure that the duration of the excess 
emissions ``were minimized to the maximum extent practicable.'' The EPA 
is also deleting the term ``severe'' in the phrase ``severe personal 
injury'' in 63.1551(a)(4) because we do not think it is appropriate to 
make the affirmative defense available only when bypass was unavoidable 
to prevent severe personal injury. In addition, the EPA is revising 
63.1551(a)(6) to add ``consistent with good air pollution control 
practice for minimizing emissions.'' The EPA is also revising the 
language of 63.1551(a)(9) to clarify that the purpose of the root cause 
analysis is to determine, correct, and eliminate the primary cause of 
the malfunction. The root cause analysis itself does not necessarily 
require that the cause be determined, corrected or eliminated. However, 
in most cases, the EPA believes that a properly conducted root cause 
analysis will have such results. In addition, the EPA is revising 
63.1551(b) to state that a written report must be submitted within 45 
days of the initial occurrence of the malfunction and that the source 
may seek an extension of up to an additional 30 days.

V. Summary of Significant Comments and Responses

    In the proposed action, we requested public comments on all aspects 
of the proposal, including our residual risk reviews and resulting 
proposed standards, our technology reviews and resulting proposed 
standard, and our proposed amendments to delete the startup and 
shutdown exemptions and the malfunction exemption and to establish an 
affirmative defense for malfunctions.
    We received written comments from 16 commenters. Our responses to 
some of the significant public comments are provided below. Responses 
to the comments that are not in the preamble have been placed in the 
docket. See Summary of Public Comments and Responses for Primary Lead 
Processing NESHAP (October 2011), for summaries of other comments and 
our responses to them.

A. Timeline for Compliance

    Comment: Two commenters opposed the compliance timing and supported 
extending the compliance date beyond two years for several reasons. One 
commenter stated that according to the time line in the proposed rule, 
the facility will operate in its current form for only a few months 
after the compliance date of the rule. This creates a dilemma for the 
State and facility in terms of implementation, planning, resources and 
compliance. The commenter suggested that the implementation and 
attainment schedules for this MACT rule should correspond to those of 
the 2008 NAAQS.
    One commenter identified three provisions they suggest could be 
used to allow more than 2 years for compliance: (1) 112(i)(3)(A) 
establishes 3 years for compliance for section 112 standards, (2) 
112(i)(5) allows exemption for up to 6 years for facilities 
demonstrating 90 percent reduction in HAP prior to first proposal of a 
section 112(d) standard, and (3) 112(h)(3) allows an alternative means 
of compliance in some circumstances. The commenter stated that the 
import of the underlying statutory authority relates to the compliance 
period for existing sources. Under the EPA practice, a three-year 
compliance period applies to section 112(d) MACT standards, while a 
two-year period applies to section 112(f) standards. Although the EPA 
seems to have reflexively applied the section 112(f) period, this 
approach is not foreordained in the present circumstances. 
Specifically, section 112(i)(3)(A), which allows a three-year 
compliance period for any section 112 standard, merits consideration in 
light of the various proposed MACT standards, including a plant-wide 
section 112(d)(6) standard. With regard to the authority under section 
112(i)(5), the commenter states that emissions have been reduced from 
140 tons in the year 2000 to less than 14 tons in 2009, representing a 
decrease of over 90%. With regard to section 112(h)(3), the commenter 
believes that the two year compliance period has serious adverse 
economic effects on the company and the new hydrometallurgical process 
can be considered an alternative means of emission limitation.
    The commenter also stated that the circumstances of this case 
present a unique challenge in determining an appropriate compliance 
deadline for a new primary lead smelting MACT standard. The commenter 
stated that there were several differences from the typical MACT 
rulemaking: Instead of multiple sources within a category, there is 
only one facility in the category; by virtue of a federally enforceable 
consent decree, the facility must terminate its present operations by 
April 30, 2014; and assuming a final rule issues on October 31, 2011, 
and a two-year compliance deadline, the compliance period would be at 
most six months prior to stoppage of many of the current operations. If 
forced to achieve compliance that would last only for such a short 
period, the facility would face severe economic hardship that could 
jeopardize its ability to finance and to build a new hydrometallurgical 
lead production process that would largely eliminate lead emissions. 
These circumstances raise questions as to the legal necessity as well 
as the feasibility and practicality of implementing a two-year 
compliance deadline.
    Further, it was incorrectly assumed that a two-year compliance 
period is consistent with the schedule of required actions contained in 
the Consent Decree, when the opposite is true. Requiring MACT standard 
compliance six months before the required termination of Doe Run's 
existing lead smelting seriously erodes several Consent Decree goals: 
Introducing a new hydrometallurgical lead production process that 
minimizes lead emissions, assuring continued primary lead production in 
the United States, and promoting the development of the most 
technologically advanced lead production process in the world.
    Finally, the commenter stated that the primary lead RTR proposal 
effectively accelerates the compliance date for the lead NAAQS for the 
Doe Run facility. According to the commenter a two-year compliance 
timeframe relies, in part, on the various steps that must be undertaken 
to implement a plan to monitor lead concentration in air. But this 
reliance is also misplaced because it requires Doe Run to comply with 
the new Lead NAAQS in 2013, or more than two years before the Lead 
NAAQS itself requires compliance. No statutory authority supports such 
accelerated compliance for the lead NAAQS or preemption of the SIP 
process. In short,

[[Page 70842]]

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

[[Page 70843]]

example, Doe Run achieves an aggregate emission of 0.22 lb/ton on a 
facility wide basis but exceeds 0.91 tpy for its furnace and refining 
and casting operations, would it be in compliance?
    Of the three numerical standards, the commenter stated that only 
the 0.91 tpy limit can arguably be linked to Section 112(f), and even 
that is unclear. The 0.91 tpy standard is derived from the Lead NAAQS 
risk analysis. Despite this starting point, this standard is subsumed 
in the proposed 0.22 lb/ton plant-wide limit which arose under the 
section 112(d)(6) technology review, adjusted for ``variability in the 
operations and emissions.'' While an effort is made to differentiate 
the components of the 0.22 lb/ton standard as to which portion fits 
under what statutory authority, this single plant-wide emission 
standard rests on the section 112(d)(6) review. Although not explicitly 
stated, this plant-wide standard offers more than an ample margin of 
safety.
    Response: We have decided not to include a facility-wide limit that 
would include the refining and furnace area stacks as well as to the 
main stack. Instead, the 1.2 tpy emissions standard we are promulgating 
under section 112(f) will apply to combined emissions from the refining 
and furnace area stacks. The 0.97 lb/ton emission standard that we are 
promulgating pursuant to section 112(d)(6) will replace the 1.0 lb/ton 
limit in the original MACT rule and will apply to the same sources 
subject to the limit in the original MACT rule. Additionally, we have 
eliminated the fenceline monitoring requirement from the final rule. 
These changes should alleviate the regulatory confusion that could 
arise over the limits in the proposal. Furthermore, we believe a plant-
wide limit is not necessary to address the residual risk and technology 
review requirements of the Act. As provided in the preamble to the 
proposed and final rules, we evaluated each of the emission stacks 
separately to determine whether additional controls are necessary under 
section 112(f) or 112(d)(6) and a plant-wide limit is not needed under 
either of those statutory requirements.

B. The EPA's Authority Under Section 112 of the Clean Air Act

    Comment: One commenter stated that the modification to the 
applicability provision does not comport with how smelting is defined 
and used and that the source category listing was intended to cover 
smelting only, not other processes. The commenter lists several issues 
supporting this position:
     The opening phrase of the first sentence ``The Primary 
Lead Smelting source category,'' describes and limits ``any facility'' 
to mean those involving smelting; and the ``includes, but is not 
limited to'' language does not apply to any lead producing process, but 
only to ``the following smelting processes.''
     The list of processes identified all involve 
pyrometallurgical activities: Sintering process, blast furnace, 
electric smelting furnace, reverberatory furnace, slag fuming furnace, 
drossing kettles, and dross reverberatory furnace.
     The plain meaning of that language evidences intent to 
cover any and all types of pyrometallurgical processes for producing 
lead but shows no attempt to encompass other, as yet unknown, lead 
production processes.
     Isolating the phrase ``including, not limited to'' from 
the company it keeps to justify an expansive reading goes well beyond 
the meaning of the listing as a whole and thus cannot stand.
    The commenter also stated that the proposed change in applicability 
is inconsistent with the statutory structure for formulating source 
categories: ``To the extent practicable, the categories and 
subcategories listed under this subsection shall be consistent with the 
list of source categories established pursuant to section 7411 of this 
title and part C of this subchapter.'' The commenter cited several 
instances in the statute where Primary Lead Smelting is referred to as 
a pyrometallurgical process. In summation, the commenter states that 
the statutory directive of CAA section 112(c)(1) to assure consistency 
between a source category definition and how the same terms are used in 
other parts of the Act demonstrates that the statutory and regulatory 
use of ``primary lead smelting'' and ``primary lead smelter'' was 
consistently designed to cover only pyrometallurgical processes. The 
EPA's assertion that the originally formulated primary lead smelting 
source category has a ``broader definition'' is inconsistent with the 
original source category language and the pyro-oriented definitions 
applied to primary lead smelting/smelter found throughout the statute 
and regulations.
    The commenter also stated that the EPA's effort to recast the 
primary lead smelting category is barred by the failure to show a major 
source would be present. The new hydrometallurgical process bears no 
resemblance to the current pyrometallurgical process, other than 
feedstock and end product. The new process will have drastically 
reduced lead emissions and is presented as a minor source in the Doe 
Run Air Construction Permit Application for the New Lead Technology 
submitted to the Missouri Department of Natural Resources.
    Response: Section 112(c)(1) describes the process for creating the 
source category list. To the extent that the commenter is concerned 
that the source category listing for primary lead was not issued 
consistent with the requirements of section 112(c)(1), such claim is 
untimely. We disagree with the commenter that the source category 
description must be read to be limited to pyrometallurgical processes. 
The source category description was intended to include all processes 
used to produce lead metal from ore concentrates, as evidenced by the 
first sentence of the category description. While it is true that at 
the time of the source category listing, the hydrometallurgical process 
described by the commenter did not exist, the language left open the 
possibility that other lead metal production processes might be 
developed in the future and would be covered under the source category 
listing.
    Although, the source category name in the 1999 NESHAP was ``primary 
lead smelting'' rather than ``primary lead processing,'' it was given 
that title because, at that time smelting was the only technology used 
to process lead ore into lead metal. However, the three-word title 
should not be read as limiting the broader language in the description 
of the source category, which provides the full evidence of EPA's 
intent of what should be included in the source category.
    Recently, during the development of this RTR rulemaking, we became 
aware of a new primary lead processing and production technology (i.e., 
hydrometallurgical process). It is our understanding that even after 
this new technology is in place, the facility plans to continue 
operating some of the same thermal processes in use now and subject to 
the NESHAP (such as refining and casting) which continue to have the 
potential to emit significant amounts of lead. We also note that this 
facility will continue to have the potential for fugitive emissions. 
For these reasons, we conclude that it is appropriate and necessary to 
update the title for the MACT standard and the applicability section of 
the standard, consistent with the description of the listed source 
category, to ensure these emissions points continue to be subject to 
emissions standards. However, it is also important to note that the 
rule being promulgated today has no requirements that apply to the 
hydrometallurgical processes themselves, since this process currently 
does not exist at this facility.

[[Page 70844]]

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

[[Page 70845]]

63.1544(a)(2010) (requiring ``manual that describes in detail the 
measures that will be put in place to control fugitive dust emissions 
from the sources''). Measuring ambient air at locations presumably near 
the source does not fall within the standards allowed by CAA section 
112, and, in any event, is redundant to the same monitoring and 
limitations already established under the Lead NAAQS. Consequently, the 
proposed rule exceeds the statutory authority granted by section 112, 
and therefore cannot be adopted.
    One commenter stated that the proposal requests comments on a work 
practices standard operating procedure (SOP) alternative to ambient air 
monitoring. As opposed to using the Lead NAAQS, which is not an 
emission standard under Section 112, the alternative SOP proposal is 
consistent with the MACT directive that emission reductions be tied to 
specific sources.
    One commenter stated that the proposed ambient lead standard is 
procedurally flawed because the EPA fails to explain the legal basis 
for imposing such a standard under section 112(f). The agency's legal 
authority is of central relevance to this aspect of the proposal and 
the failure to clearly describe the legal basis for the standard 
violates the EPA's obligation under section 307(d)(3)(C) to set forth 
the ``major legal interpretations'' that underlie the proposal.
    Response: The commenters mistake the purpose of the fenceline 
monitoring requirement in the proposed rule. The proposed rule 
established emissions standards from the main, furnace area, and 
refinery operations stacks and further provided that fugitive dust 
emissions would need to be addressed by work practice standards (as is 
allowed under section 112(h)(1)). Finally, we proposed a fenceline 
monitoring requirement to ensure that the work practice standards 
adequately address fugitive dust emissions consistent with the 
requirements of section 112(f). However, we have eliminated the 
fenceline monitoring requirement in the final rule. Instead, we are 
specifying work practice standards to minimize fugitive dust emissions. 
Because we are not requiring fenceline monitoring in this final rule, 
the commenter's concerns related to redundant monitoring requirements 
need not be addressed.
    We disagree with the suggestion that we do not provide the legal 
basis for our proposed rule. The preamble clearly explains that we are 
addressing residual risk for this source category under section 112(f) 
and clearly explains the rationale for the proposed rule and the basis 
for the proposed requirements. (See 76 FR 9412-9414 for a discussion of 
the statutory authority underlying the proposed revisions to the 
standard.) With regard to fugitive dust emissions, we are establishing 
a requirement for work practice standards consistent with section 
112(h)(1) in lieu of an emission standard because these fugitive dust 
emissions, which are predominantly from materials handling and roadways 
cannot be captured and vented to a stack for which we could establish 
an emission limit.
    Comment: One commenter stated that the CAA limits the EPA's ability 
to regulate pollutants subject to NAAQS (``criteria pollutants'') to 
that regime and does not allow supplemental (or supplanting) regulation 
of them under NESHAP. The commenter cited CAA section 112(b)(2) that 
states in relevant part: ``No air pollutant which is listed under 
section 7408(a) of this title may be added to the list under this 
section'' with certain exceptions not relevant here. Section 7408(a) 
provides the statutory authority for setting NAAQS. Also, CAA section 
112(b)(7) removes elemental lead from consideration as a HAP. According 
to the commenter, the prohibition is not only clear, but also 
expansive: The statute ``unqualifiedly prohibits listing a criteria 
pollutant as a HAP, that is, regardless of the reason.'' Nat'l Lime 
Ass'n v. EPA, 233 F.3d 625, 638 (DC Cir. 2000).
    Response: As we recognized in the preamble to the proposed rule, 
under section 112(b)(7) elemental lead may not be listed as a HAP under 
section 112 and the references to ``lead'' in the proposed rule 
referred to ``lead compounds'' which are expressly listed as a HAP in 
CAA section 112(b)(1). 76 FR 9412. Because lead compounds are a listed 
HAP, we are required to regulate them under section 112, as we did when 
we established the original MACT standard for primary lead in 1999. 64 
FR 30194. The lead emitted from primary lead processing is lead 
compounds with elemental lead present only in trace amounts.\5\ The 
commenter did not provide any data to refute this. Thus, we disagree 
with the commenter that we are attempting to regulate in contravention 
of section 112(b)(7) in this action.
---------------------------------------------------------------------------

    \5\ Harrison, R.M. and Williams, C.R. (1981). Environmental 
Science and Technology, Vol. 15:10, p. 1197-1204.; Ohmsen, G.S. 
(2001). Journal of the Air and Waste Management Association, Vol. 
51, p. 1443-1451.; Uzu, G., Sobanska, S., Sarret, G., Sauvain, J.J., 
Prad[egrave]re, P., and Dumat, C. (2011). Journal of Hazardous 
Materials, Vol. 186, p. 1018-1027.; Spear, T.M., Svee, W., Vincent, 
J.H., and Stanisich, N. (1998). Environmental Health Perspectives, 
Vol. 106:9, p. 565-571.; Czaplicka, M., and Buzek, [Lstrok]. (2011). 
Water, Air, & Soil Pollution, Vol. 218, p. 157-163.; Sobanska, S., 
Ricq, N., Laboudigue, A., Guillermo, R., Br[eacute]mard, C., 
Laureyns, J., Merlin, J.C., Wignacourt, J.P. (1999). Environmental 
Science and Technology, Vol. 33, p. 1334-1339.; Harrison, R.M. and 
Williams, C.R. (1983). The Science of the Total Environment, Vol. 
31, p. 129-140.; Batonneau, Y., Bremard, C., Gengembre, L., 
Laureyns, J., Maguer, A.L., Maguer, D.L., Perdrix, E., and Sobanska, 
S. (2004). Environmental Science and Technology, Vol. 38, p. 5281-
5289.; Foster, R.L. and Lott, P.F. (1980). Environmental Science and 
Technology, Vol. 14:10, p. 1240-1244.
---------------------------------------------------------------------------

    The National Lime opinion cited by the commenters addressed a 
different issue than the one being at issue here. In that case, the 
issue was whether the EPA could use a NAAQS pollutant (particulate 
matter) as a surrogate for HAP metal emissions. While certain HAP 
listed in 112(b)(1) are considered particulate matter, ``particulate 
matter'' is not listed on the 112(b)(1) list. In that case, the court 
rejected the argument by the National Lime Association that the EPA was 
regulating particulate matter ``through the back door.'' In the present 
situation, the EPA is not regulating lead ``through the back door'' in 
this rulemaking.
    Comment: One commenter stated that the EPA unlawfully refused to 
set a standard for organic HAP. According to the commenter, the EPA 
must set an emission standard for the organic HAP listed on the section 
112(b)(1) list that this source category emits. Specifically, the 
commenter argues that:

``[w]hen EPA performs a section 112(d)(6) review, it must consider 
the ongoing legality and effectiveness of the existing standard. 
Explicitly, in the current rulemaking EPA must ``review, and revise 
as necessary'' the existing MACT standard. 42 U.S.C. section 
7412(d)(6). It is clearly ``necessary'' for EPA to close inherently 
unlawful gaps in the original MACT, by setting a standard for an 
uncontrolled HAP. Indeed, EPA has recognized the need and done this 
during its section 112(d)(6) review in its recent rulemaking for 
Marine Tank Vessel Loading Operations and Group I Polymers and 
Resins where it proposed a standard for previously uncontrolled 
subcategories of these sources. See Proposed Rule, 75 Fed. Reg. 
65068, 65115, 65106 (Oct. 21, 2010). EPA has no legal basis for 
failing to set a MACT standard now for the uncontrolled HAPs for the 
primary lead source category.''

    Response: We disagree with the commenter that section 112(d)(6) 
mandates that the EPA must correct any deficiency in an underlying MACT 
standard when it conducts the ``technology review'' under that section. 
We believe that section 112 does not expressly address this issue, and 
the EPA has discretion in determining how to address a purported flaw 
in a promulgated standard. The ``as necessary'' language cited by the

[[Page 70846]]

commenter must be read in the context of the provision, which focuses 
on the review of developments that have occurred since the time of the 
original promulgation of the MACT standard and thus should not be read 
as a mandate to correct flaws that existed at the time of the original 
promulgation. In several recent rulemakings, we have chosen to fix 
underlying defects in existing MACT standards under sections 112(d)(2) 
and (3), the provisions that directly govern the initial promulgation 
of MACT standards (see National Emission Standards for Hazardous Air 
Pollutants From Petroleum Refineries, October 28, 2009, 74 FR 55670; 
and National Emission Standards for Hazardous Air Pollutants: Group I 
Polymers and Resins; Marine Tank Vessel Loading Operations; 
Pharmaceuticals Production; and the Printing and Publishing Industry, 
April 21, 2011, 76 FR 22566). (We note that the commenter incorrectly 
states that we revised those standards under 112(d)(6)). We believe 
that our approach is reasonable because using those provisions ensures 
that the process and considerations are those associated with initially 
establishing a MACT standard, and it is reasonable to make corrections 
following the process that would have been followed if we had not made 
an error at the time of the original promulgation.
    Nevertheless, based on our review of the commenter's 2009 petition 
and their additional comments on this proposed rulemaking, we agree 
that the Primary Lead Smelting NESHAP should have included an emission 
standard for organic HAP. We have evaluated available data and believe 
that we need additional data in order to set an emission standard for 
organic HAP that is representative of current operations and emissions. 
We intend to collect the needed data and propose a MACT emission 
standard under section 112(d)(2) and (3) of the CAA. Accordingly, we 
are not taking final action on the 2009 petition with respect to the 
issue of setting a standard or standards for organic HAP and will 
address that petition once we have gathered the necessary data.

C. Primary Lead Processing Risk Assessment

    Comment: One commenter stated that the EPA failed to consider or 
account for cumulative risk and that there is no rational or scientific 
basis to dismiss consideration of the cumulative risk of exposures to 
HAPs due to uncertainties. The commenter urged that these uncertainties 
require protective action rather than inaction. The commenter stated 
that the EPA's Science Advisory Board (SAB) in May 2010 urged the EPA 
to use the RTR rulemaking process to do this as well as perform a 
sensitivity analysis to identify the major uncertainties in both the 
human health and ecological risk assessments. According to the 
commenter, the SAB and numerous other scientific experts have 
developed, and are in the process of developing, cutting edge methods 
to perform these assessments and that the EPA, as the lead 
environmental agency of the United States, has a responsibility to show 
leadership in this process. It should rely on the significant 
information already available and also use the current and future RTR 
rulemakings to further advance this process.
    The commenter stated that it could be done on a site-specific basis 
or for the industry as a whole. Uncertainty in estimates of HAP in 
ambient air has been characterized, so the data available from the 
National-Scale Air Toxics Assessments (NATA) would allow a defensible 
estimate of what might be expected from other sources.
    Response: We disagree with the commenter that our risk assessments 
do not consider cumulative risk. We note that our assessment of cancer 
risks is, in fact, cumulative, summing the risks associated with all 
carcinogens emitted by the facility. Similarly, the use of the target 
organ specific hazard index (TOSHI) for chronic non-cancer effects 
evaluates the cumulative effects of HAP on a given target organ. 
Further, our assessment for Primary Lead Processing is cumulative in 
that it considers all emission points within the fenceline (since they 
are all covered by the MACT). Moreover, the level of the lead NAAQS, 
which we used as the metric for defining unacceptable risk, was set 
based on all air-related exposures in its derivation and thus is also a 
cumulative standard. We note that for the present rulemaking, our 
consideration of cumulative risks for the Doe Run facility is the same 
as that for the industry as a whole since Doe Run is the only facility 
within the source category.
    We further disagree with the commenter's assertion that a 
comprehensive quantitative assessment of risks from all sources outside 
the source category is required under the statute. If such were in fact 
the case, the task of completing such a requirement would take an 
interminable length of time. Instead, to provide the quantitative risk 
information necessary to inform RTR regulatory decisions, the EPA 
conducts a comprehensive assessment of the risks associated with 
exposure to the HAPs emitted by the source category (i.e., those 
emissions that can actually be affected by the specific rulemaking) and 
supplements that with additional information about other possible 
concurrent and relevant risks that is readily available. In some cases, 
we have additional information about HAP emissions that are outside the 
scope of the particular rulemaking but within the boundaries of the 
subject facilities. In other cases, we may have ambient HAP monitoring 
data that can be considered as part of the regulatory decision-making. 
In still other cases, we may have very little additional risk 
information that can be considered. In all cases, however, when we 
consider additional information about risks, we also consider its 
attendant uncertainties, and information which carries significant 
uncertainties generally carries much less weight in the overall 
regulatory decision.
    All of the quantitative risk assessment information about HAP 
emissions from the source category under consideration is also 
considered in the manner prescribed by the decision framework set forth 
by the CAA for residual risk decision-making (i.e., the Benzene 
decision framework), and this means that the general guidelines of risk 
acceptability have been developed in a way that they already take into 
account the impossibility of accurately quantifying the health risks 
posed by outside forces on every individual in the population. They do 
this by noting that the guidelines apply in ``the world in which we 
live,'' a world which is acknowledged to be ``not risk-free,'' but 
rather a world which is full of risks, many of which can simply not be 
quantified. This acknowledgment allows the EPA to make risk-based 
decisions by focusing on the risks associated with the emissions that 
are themselves the subject of regulation being considered, and not get 
distracted by the daunting task of assessing all the other concurrent 
potential risks that may or may not be relevant and can't be impacted 
by the regulation in question anyway.
    Comment: Two commenters took issue with the modeling methodology 
used for the RTR proposal and disagreed with the risk results based on 
a number of concerns.
    One commenter stated that the RTR modeling characterized the 
maximum air lead concentrations near the facility to be fifty times the 
2008 NAAQS which is inconsistent with both recent air quality 
monitoring data and Missouri's 2007 attainment demonstration modeling 
and stated that the proposed RTR modeling overestimated the maximum air 
lead concentration by at

[[Page 70847]]

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

[[Page 70848]]

noted above, we believe that this is a reasonable approach given that 
the NAAQS is a health based standard set to protect the public health, 
including the health of sensitive sub-populations (such as children) 
with an adequate margin of safety. Moreover, the risk assessment 
supporting the NAAQS considered direct inhalation exposures and 
indirect air-related multi-pathway exposures from industrial sources 
like primary and secondary lead smelting operations. We conclude that 
the level of the NAAQS presents an acceptable level of risk from lead 
in ambient air. Moreover, we are promulgating emissions limits (for the 
furnace area and refining operation stacks) to reduce emissions and 
promulgating specific work practice standards to minimize fugitive 
emissions to ensure that emissions do not result in exceedances of the 
NAAQS. As part of our ``ample margin of safety'' analysis, we examined 
whether there were additional cost effective controls available to 
further reduce emissions and risks. As explained elsewhere in this 
notice and in other supporting documents available in the docket, we 
have not identified any additional cost effective controls to reduce 
emissions further and provide further risk reductions.
    With respect to the California benchmark for protecting children, 
the EPA has a hierarchy of appropriate health benchmark values. In 
general, this hierarchy places greater weight on EPA derived health 
benchmarks than those from other agencies (http://www.epa.gov/ttn/atw/nata1999/99pdfs/healtheffectsinfo.pdf). For the reasons provided above, 
we believe that the lead NAAQS level establishes an appropriate 
benchmark for addressing the acceptable level of risk and we disagree 
with the commenter that we should instead use an ambient concentration 
of 0.02 [mu]g/m\3\ based on a one month average.\6\
---------------------------------------------------------------------------

    \6\ This level is well below the background ambient lead levels 
measured in the area during the SIP process. See docket ID EPA-HQ-
OAR-2006-0735-5204.
---------------------------------------------------------------------------

    Comment: With regard to the source category's emissions of two 
dozen other hazardous air pollutants, including cadmium and arsenic, 
one commenter stated that the EPA should determine that this health 
risk is also unacceptable. With thousands of people exposed to a 
lifetime risk of cancer above 1 in a million, and with at least 200 
exposed to a lifetime risk of up to 30 in a million, the EPA must 
recognize that this risk is too high for this local community. The EPA 
should set a standard that would reduce cancer risks to an acceptable 
level and ensure an ample margin of safety from non-lead emissions.
    Response: With respect to cancer risk, section 112 provides for EPA 
to follow the benzene decision framework for determining acceptability. 
Under that framework, cancer risk less than 100 in a million is 
generally considered acceptable, although this is not a bright line and 
EPA examines a variety of health factors to make its determination. 
Once we concluded that the risk from non-lead HAP was acceptable, we 
then considered whether there were additional cost-effective controls 
that would further reduce risk from the other HAP emitted in order to 
provide an ample margin of safety. Because the controls for other HAP 
were the same as the controls for lead, we determined (for the same 
reason we did for lead) that there were no additional cost effective 
controls and that the acceptable level of HAP emissions also provided 
an ample margin of safety.
    Comment: One commenter stated that they oppose the use of the lead 
NAAQS assessment instead of a multi-pathway risk assessment because the 
lead NAAQS provides an inappropriate level of protection, i.e., the 
lead NAAQS requires an adequate margin of safety while a residual risk 
standard requires an ample margin of safety. The commenter stated that 
a residual risk standard should provide a level of protection that is 
higher than the NAAQS. Moreover, the commenter noted that the NAAQS is 
set to protect sensitive populations while residual risk rules are set 
to protect the greatest number of individuals possible from 
unacceptable risk. The proposed rule based on the lead NAAQS will not 
provide as high a level of protection as required by CAA section 
112(f)(2).
    Response: We disagree with the commenter that the lead NAAQS 
assessment should not be considered as part of our residual risk 
analysis because it provides an inappropriate level of protection. The 
lead NAAQS is set at a level to protect public health, including the 
health of sensitive populations, most critical for lead, the health of 
children. That does not suggest that non-sensitive populations are not 
protected, but rather that the NAAQS is set at a level that will not 
only protect the general population but also those who are more 
sensitive to lead exposures. In the proposed rule, the level of the 
NAAQS, which protects public health with an adequate margin of safety, 
was used to determine whether or not there was unacceptable risk. Once 
we determined a level of emissions that results in risks being 
acceptable, under the two-step residual risk decision process, the EPA 
then considered whether there were additional controls that might 
further reduce risk to achieve an ample margin of safety considering 
cost and feasibility. We did not identify any additional cost-effective 
controls beyond those that would need to be implemented to ensure an 
acceptable level of risk. Thus, with regard to the two stack emissions 
points (the furnace area stack and the refinery stacks) for which we 
are requiring action to ensure an acceptable level of risk, and for 
fugitive dust emissions, for which we are specifying work practice 
standards, we have concluded that there are no additional cost-
effective controls and that an ample margin of safety will be provided 
by the same controls that ensure an acceptable level of risk. Moreover, 
there are no additional cost effective controls to further reduce 
emissions from the main stack beyond those controls that are already 
applied. Therefore, an ample margin of safety will be provided by the 
current level of control for the main stack. A more detailed 
presentation of the economic analysis of additional controls for the 
refining, furnace area, and main stacks can be found in the technical 
support document, which is available in the docket.
    Comment: One commenter stated that the EPA has not appropriately 
accounted for or prevented environmental risks from lead or non-lead 
emissions as required by section 112(f)(2)(A). According to the 
commenter, using the NAAQS to assess ecological risk is problematic and 
EPA's approach of assuming that ``when exposure levels are not 
anticipated to adversely affect human health, they also are not 
anticipated to adversely affect the environment,'' 76 FR at 9425, is 
illogical and unlawful. Further, based on the information the EPA has 
gathered about the local environment around the Doe Run facility, the 
EPA cannot assume that there would be no effects either to wildlife or 
to natural resources in the environment either from inhalation or air 
deposition of HAP emissions, exacerbated by persistence and 
bioaccumulation. As the EPA's own Scientific Advisory Board has stated: 
``The assumption that ecological receptors will be protected if human 
health is protected is incorrect.'' SAB May 2010 at 48.
    Response: The EPA is unaware of any data indicating a direct 
atmospheric impact of non-lead HAP emitted from this source category on 
receptors such as plants, birds, and wildlife. Given that there is no 
information supporting that

[[Page 70849]]

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

[[Page 70850]]

understandable by the general public; the IQ point losses at stake or 
how it is setting a standard to address these are not discussed, and 
the types of cancer or the nature of the health disorders or other 
adverse effects that most of these types of HAP emissions present to 
the public are not discussed. The commenter stated that this type of 
``[e]xpanded discussion is important to understanding the `real-world' 
risk, including dealing with health disparities.'' SAB May 2010 at 50.
    A full elaboration of the types of health impacts at issue here, 
ranging from significant IQ loss (due to lead emissions), to a high 
lifetime cancer risk (from non-lead emissions), for this particular 
community, is needed to inform the EPA's and the public's consideration 
of what level of risk is acceptable or unacceptable, and what standard 
is required to provide an ample margin of safety.
    Response: The EPA strives to communicate its health and risk 
information to the public in a manner that is concise, informative, and 
readily understandable. In the risk assessment document, we discuss the 
various metrics used to characterize risk associated with the source 
category (e.g., see section 2.3 of the risk assessment document for a 
discussion of the MIR). Moreover, while the commenter is correct that 
we do not discuss in detail the neurological effects associated with 
exposure to lead (e.g., loss of IQ points in children), we do reference 
the final lead NAAQS decision, which does discuss in detail the health 
effects associated with lead exposure. With regard to how the proposed 
controls limit the health risks associated with lead exposure, we noted 
in the preamble of the proposed rule that the proposed controls would 
ensure that the facility's contribution to ambient concentrations of 
lead were at or below the NAAQS for lead and that this represents an 
acceptable level of risk since the lead NAAQS was set to protect public 
health, including the health of sensitive populations (e.g., children), 
from the adverse health effects associated with lead exposure. 
Moreover, although the requirements that we are promulgating in today's 
action are somewhat different than the proposed requirements, we 
believe that the requirements that we are promulgating will also ensure 
that the facility's contribution to ambient concentrations of lead will 
not present an unacceptable level of risk. In addition, as discussed 
previously, we have not identified any additional cost-effective 
controls and we therefore conclude that the same level of controls to 
achieve acceptable risks will also provide an ample margin of safety.
    With regard to discussing specific types of cancers potentially 
associated with exposure to a given HAP, we note that the cancer unit 
risk estimates used in the risk assessment are not associated with 
specific types of cancers, but rather with the risk of cancer in 
general. Moreover, since many of the cancer studies the unit risk 
estimates take into account are animal studies, there is appreciable 
uncertainty as to whether the same types of cancers would be seen in 
humans. Thus, we find it appropriate to express the results of our 
cancer assessment in terms of general cancer risk.

VI. Impacts of the Final Rule

    The revisions to the Primary Lead Processing MACT standard will 
ensure that emissions from the one source in this source category do 
not present an unacceptable level of risk and will also provide an 
ample margin of safety. The estimated reductions include as much as 10 
tons per year of lead from the furnace area and refining operations 
stacks. We also expect reductions will be achieved with the additional 
work practices, but we have not been able to quantify those reductions. 
These controls and work practices will also reduce emissions of other 
HAP emitted from the facility. The costs of these controls and work 
practices were not directly considered in the decision because these 
controls and practices are necessary to ensure that risks are 
acceptable. The EPA evaluated control practices and technology and 
associated costs in determining that the same requirements needed to 
achieve acceptable risks would also provide an ample margin of safety. 
In addition, we considered other available practices, processes and 
control technologies. For the same reason we concluded that no 
additional controls were necessary to provide an ample margin of 
safety, we concluded that there were no additional cost effective 
developments in practices, processes or control technologies for any 
sources other than the main stack.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review, and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action.'' This action is a 
significant regulatory action because it raises novel legal and policy 
issues. Accordingly, the EPA submitted this action to the Office of 
Management and Budget (OMB) for review under Executive Order 12866 and 
Executive Order 13563 (76 FR 3821, January 21, 2011), and any changes 
made in response to OMB recommendations have been documented in the 
docket for this action.

B. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2060-0414.
    The information requirements are based on notification, 
recordkeeping, and reporting requirements in the NESHAP General 
Provisions (40 CFR part 63, subpart A), which are mandatory for all 
operators subject to national emission standards. These recordkeeping 
and reporting requirements are specifically authorized by section 114 
of the CAA (42 U.S.C. 7414). All information submitted to the EPA 
pursuant to the recordkeeping and reporting requirements for which a 
claim of confidentiality is made is safeguarded according to agency 
policies set forth in 40 CFR part 2, subpart B.
    This final rule includes new paperwork requirements for increased 
frequency for stack testing as described in 40 CFR 63.1546.
    When a malfunction occurs, sources must report the event according 
to the applicable reporting requirements of 40 CFR part 63, subpart 
TTT. An affirmative defense to civil penalties for exceedances of 
emission limits that are caused by malfunctions is available to a 
source if it can demonstrate that certain criteria and requirements are 
satisfied. The criteria 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 reasonably preventable, and not caused by 
poor maintenance and or careless operation) and where the source took 
necessary actions to minimize emissions. In addition, the source must 
meet certain notification and reporting requirements. For example, the 
source must prepare a written root cause analysis and submit a written 
report to the Administrator documenting that it has met the conditions 
and requirements for assertion of the affirmative defense.
    The EPA is adding affirmative defense to the estimate of burden in 
the ICR. To provide the public with an estimate of the relative 
magnitude of the burden

[[Page 70851]]

associated with an assertion of the affirmative defense position 
adopted by a source, the EPA has provided administrative adjustments to 
the ICR that show what the notification, recordkeeping, and reporting 
requirements associated with the assertion of the affirmative defense 
might entail. The EPA's estimate for the required notification, 
reports, and records, including the root cause analysis, totals $3,141, 
and is based on the time and effort required of a source to review 
relevant data, interview plant employees, and document the events 
surrounding a malfunction that has caused an exceedance of an emission 
limit. The estimate also includes time to produce and retain the record 
and reports for submission to the EPA. The EPA provides this 
illustrative estimate of this burden, because these costs are only 
incurred if there has been a violation, and a source chooses to take 
advantage of the affirmative defense.
    Given the variety of circumstances under which malfunctions could 
occur, as well as differences among sources' operation and maintenance 
practices, we cannot reliably predict the severity and frequency of 
malfunction-related excess emissions events for a particular source. It 
is important to note that the EPA has no basis currently for estimating 
the number of malfunctions that would qualify for an affirmative 
defense. Current historical records would be an inappropriate basis, as 
source owners or operators previously operated their facilities in 
recognition that they were exempt from the requirement to comply with 
emissions standards during malfunctions. Of the number of excess 
emission events reported by source operators, only a small number would 
be expected to result from a malfunction (based on the definition 
above), and only a subset of excess emissions caused by malfunctions 
would result in the source choosing to assert the affirmative defense. 
Thus, we believe the number of instances in which source operators 
might be expected to avail themselves of the affirmative defense will 
be extremely small. For this reason, we estimate no more than 2 or 3 
such occurrences for all sources subject to 40 CFR part 63, subpart TTT 
over the 3-year period covered by this ICR. We expect to gather 
information on such events in the future, and will revise this estimate 
as better information becomes available.
    For the Primary Lead Processing MACT standard, the ICR document 
prepared by the EPA, which has been revised to include the amendments 
to the standards, has been assigned the EPA ICR number 1856.08. Burden 
changes associated with these amendments result from the reporting and 
recordkeeping requirements of the affirmative defense provisions added 
to the rule. The change in respondents' annual reporting and 
recordkeeping burden associated with these amendments for this 
collection (averaged over the first 3 years after the effective date of 
the standards) is estimated to be 30 labor hours at a cost of $3,141 
per year for the affirmative defense reporting. There will be no 
capital costs associated with the information collection requirements 
of the final rule. There is no estimated change in annual burden to the 
Federal government for these amendments. 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. In addition, EPA is 
amending the table in 40 CFR part 9 of currently approved OMB control 
numbers for various regulations to list the regulatory citations for 
the information requirements contained in this final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) 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 will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impact of these final rules on small 
entities, small entity is defined as: (1) A small business 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 these final rules on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
action will not impose any requirements on small entities. The costs 
associated with the new requirements in these final rules are not 
expected to present an undue burden to this industry as discussed 
above.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the 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. Therefore, this action is not 
subject to the requirements of sections 202 or 205 of the UMRA.
    These rules are also not subject to the regulatory requirements 
that might significantly or uniquely affect small governments. They 
contain no requirements that apply to such governments or impose 
obligations upon them.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. These final rules primarily affect 
private industry, and do not impose significant economic costs on State 
or local governments. Thus, Executive Order 13132 does not apply to 
this action.

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). It will not have 
substantial direct effect on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this action.

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

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997), because it is not economically significant as defined 
in Executive Order 12866. However, the agency does believe there is a 
disproportionate risk to children. Modeled ambient air lead

[[Page 70852]]

concentrations from the one facility in this source category are in 
excess of the NAAQS for lead, which was set to ``provide increased 
protection for children and other at-risk populations against an array 
of adverse health effects, most notably including neurological effects 
in children, including neurocognitive and neurobehavioral effects.'' 73 
FR 67007. However, the control measures promulgated in this notice will 
result in lead concentration levels that are in compliance with the 
lead NAAQS, thereby mitigating the risk of adverse health effects to 
children.

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 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse energy effect on the supply, 
distribution, or use of energy. This action will not create any new 
requirements for sources in the energy supply, distribution, or use 
sectors. Further, we have concluded that these final rules are not 
likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act

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

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations, because it does not 
decrease the level of protection provided to human health or the 
environment, but in fact decreases emissions of lead. To examine the 
potential for any environmental justice issues that might be associated 
with this rule, we evaluated the distributions of HAP-related cancer 
and non-cancer risks across different social, demographic, and economic 
groups within the populations living near the one facility that is 
currently operating in this source category. Our analyses also show 
that, although there is potential for an adverse environmental and 
human health effects from emission of lead, it does not indicate any 
significant potential for disparate impacts to the specific demographic 
groups analyzed.
    The rule would require additional control measures to address the 
identified environmental and health risks and would therefore, decrease 
risks to any populations exposed to these sources.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that, before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. The EPA will submit a report containing 
this final rule and other required information to the United States 
Senate, the United States House of Representatives, and the Comptroller 
General of the United States prior to publication of the final rule in 
the Federal Register. A major rule cannot take effect until 60 days 
after it is published in the Federal Register. This action is not a 
``major rule'' as defined by 5 U.S.C. 804(2). The final rules will be 
effective on November 15, 2011.

List of Subjects for 40 CFR Part 63

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: November 4, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends title 40, chapter I, of the Code of Federal 
Regulations as follows:

PART 63--[AMENDED]

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart TTT--[Amended]

0
2. Section 63.1541 is revised to read as follows:


Sec.  63.1541  Applicability.

    (a) The provisions of this subpart apply to any facility engaged in 
producing lead metal from ore concentrates. The category includes, but 
is not limited to, the following smelting processes: Sintering, 
reduction, preliminary treatment, refining and casting operations, 
process fugitive sources, and fugitive dust sources. The sinter process 
includes an updraft or downdraft sintering machine. The reduction 
process includes the blast furnace, electric smelting furnace with a 
converter or reverberatory furnace, and slag fuming furnace process 
units. The preliminary treatment process includes the drossing kettles 
and dross reverberatory furnace process units. The refining process 
includes the refinery process unit. The provisions of this subpart do 
not apply to secondary lead smelters, lead refiners, or lead remelters.
    (b) Table 1 of this subpart specifies the provisions of subpart A 
of this part that apply and those that do not apply to owners and 
operators of primary lead processors.

0
3. Section 63.1542 is amended by adding a definition for ``Affirmative 
defense,'' ``Lead refiner,'' ``Lead remelter,'' ``Primary lead 
processor,'' and ``Secondary lead smelter;'' removing the definition of 
``Primary lead smelter;'' and revising the definitions of ''Fugitive 
dust source,'' ``Furnace area,'' ``Malfunction,'' ``Materials storage 
and handling area,'' ``Plant roadway,'' ``Process fugitive source,'' 
``Refining and casting area,'' ``Sinter machine area,'' and ``Tapping 
location'' to read as follows:


Sec.  63.1542  Definitions.

* * * * *
    Affirmative defense means, 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

[[Page 70853]]

the merits of which are independently and objectively evaluated in a 
judicial or administrative proceeding.
* * * * *
    Fugitive dust source means a stationary source of hazardous air 
pollutant emissions at a primary lead processor resulting from the 
handling, storage, transfer, or other management of lead-bearing 
materials where the source is not part of a specific process, process 
vent, or stack. Fugitive dust sources include roadways, storage piles, 
materials handling transfer points, and materials transport areas.
    Furnace area means any area of a primary lead processor in which a 
blast furnace or dross furnace is located.
    Lead refiner means any facility that refines lead metal that is not 
located at a primary lead processor.
    Lead remelter means any facility that remelts lead metal that is 
not located at a primary lead processor.
    Malfunction means any 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 usual manner 
which causes, or has the potential to cause, the emission limitations 
in an applicable standard to be exceeded. Failures that are caused in 
part by poor maintenance or careless operation are not malfunctions.
    Materials storage and handling area means any area of a primary 
lead processor in which lead-bearing materials (including ore 
concentrate, sinter, granulated lead, dross, slag, and flue dust) are 
stored or handled between process steps, including areas in which 
materials are stored in piles, bins, or tubs, and areas in which 
material is prepared for charging to a sinter machine or smelting 
furnace or other lead processing operation.
* * * * *
    Plant roadway means any area of a primary lead processor that is 
subject to vehicle traffic, including traffic by forklifts, front-end 
loaders, or vehicles carrying ore concentrates or cast lead ingots. 
Excluded from this definition are employee and visitor parking areas, 
provided they are not subject to traffic by vehicles carrying lead-
bearing materials.
    Primary lead processor means any facility engaged in the production 
of lead metal from lead sulfide ore concentrates through the use of 
pyrometallurgical or other techniques.
    Process fugitive source means a source of hazardous air pollutant 
emissions at a primary lead processor that is associated with lead 
smelting, processing or refining but is not the primary exhaust stream 
and is not a fugitive dust source. Process fugitive sources include 
sinter machine charging locations, sinter machine discharge locations, 
sinter crushing and sizing equipment, furnace charging locations, 
furnace taps, and drossing kettle and refining kettle charging or 
tapping locations.
    Refining and casting area means any area of a primary lead 
processor in which drossing or refining operations occur, or casting 
operations occur.
    Secondary lead smelter means any facility at which lead-bearing 
scrap material, primarily, but not limited to, lead-acid batteries, is 
recycled into elemental lead or lead alloys by smelting.
* * * * *
    Sinter machine area means any area of a primary lead processor 
where a sinter machine, or sinter crushing and sizing equipment is 
located.
* * * * *
    Tapping location means the opening through which lead and slag are 
removed from the furnace.

0
4. Section 63.1543 is revised to read as follows:


Sec.  63.1543  Standards for process and process fugitive sources.

    (a) No owner or operator of any existing, new, or reconstructed 
primary lead processor shall discharge or cause to be discharged into 
the atmosphere lead compounds in excess of 0.97 pounds per ton of lead 
metal produced from the aggregation of emissions discharged from air 
pollution control devices used to control emissions from the sources 
listed in paragraphs (a)(1) through (9) of this section.
    (1) Sinter machine;
    (2) Blast furnace;
    (3) Dross furnace;
    (4) Dross furnace charging location;
    (5) Blast furnace and dross furnace tapping location;
    (6) Sinter machine charging location;
    (7) Sinter machine discharge end;
    (8) Sinter crushing and sizing equipment; and
    (9) Sinter machine area.
    (b) No owner or operator of any existing, new, or reconstructed 
primary lead processor shall discharge or cause to be discharged into 
the atmosphere lead compounds in excess of 1.2 tons per year from the 
aggregation of the air pollution control devices used to control 
emissions from furnace area and refining and casting operations.
    (c) The process fugitive sources listed in paragraphs (a)(4) 
through (8) of this section must be equipped with a hood and must be 
ventilated to a baghouse or equivalent control device. The hood design 
and ventilation rate must be consistent with American Conference of 
Governmental Industrial Hygienists recommended practices.
    (d) The sinter machine area must be enclosed in a building that is 
ventilated to a baghouse or equivalent control device at a rate that 
maintains a positive in-draft through any doorway opening.
    (e) Except as provided in paragraph (f) of this section, following 
the initial tests to demonstrate compliance with paragraphs (a) and (b) 
of this section, the owner or operator of a primary lead processor must 
conduct compliance tests for lead compounds on a quarterly basis (no 
later than 100 days following any previous compliance test).
    (f) If the 12 most recent compliance tests demonstrate compliance 
with the emission limit specified in paragraphs (a) and (b) of this 
section, the owner or operator of a primary lead processor shall be 
allowed up to 12 calendar months from the last compliance test to 
conduct the next compliance test for lead compounds.
    (g) The owner or operator of a primary lead processor must maintain 
and operate each baghouse used to control emissions from the sources 
listed in paragraphs (a)(1) through (9) and (b) of this section such 
that the alarm on a bag leak detection system required under Sec.  
63.1547(c)(8) does not sound for more than five percent of the total 
operating time in a 6-month reporting period.
    (h) The owner or operator of a primary lead processor must record 
the date and time of a bag leak detection system alarm and initiate 
procedures to determine the cause of the alarm according to the 
corrective action plan required under Sec.  63.1547(f) within 1 hour of 
the alarm. The cause of the alarm must be corrected as soon as 
practicable.
    (i) At all times, the owner or operator 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. 
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.

0
5. Section 63.1544 is revised to read as follows:

[[Page 70854]]

Sec.  63.1544  Standards for fugitive dust sources.

    (a) Each owner or operator of a primary lead processor must 
prepare, and at all times operate according to, a standard operating 
procedures manual that describes in detail the measures that will be 
put in place to control fugitive dust emissions from the sources listed 
in paragraphs (a)(1) through (a)(5) of this section that incorporates 
each of the specific work practices listed in paragraphs (a)(1) through 
(a)(5) of this section:
    (1) Plant roadways. (i) Paved plant roadways must be cleaned using 
a wet sweeper unless the temperature falls below 39 degrees Fahrenheit 
or when the application of water results in the formation of ice. 
During periods when the temperature is below 39 degrees Fahrenheit, 
paved plant roadways must be cleaned using a high efficiency dry 
sweeper.
    (ii) Continuously operate a sprinkler system to wet plant roadways 
to prevent fugitive dust entrainment. This sprinkler system must be 
operated except during periods when the temperature is less than 39 
degrees Fahrenheit or when the application of water results in 
formation of ice.
    (2) Material storage and handling area(s). (i) Chemically stabilize 
inactive concentrate storage piles a minimum of once every month to 
reduce particulate from wind born re-suspension.
    (ii) Finished sinter must be sufficiently wetted to ensure fugitive 
dust emissions are minimized prior to loading to railcars.
    (3) Sinter machine area(s). (i) Personnel doors must be kept closed 
during operations except when entering or exiting the furnace building 
by the aid of door weights or similar device for automatic closure.
    (ii) Large equipment doors must remain closed except when entering 
or existing the building using an automatic closure system or 
equivalent lock-and-key method.
    (iii) It may be necessary to open doors subject to the requirements 
in Sec.  63.1544(a)(3)(i) and (ii) to prevent heat stress or exhaustion 
of workers inside the sinter plant building. Records of such periods 
must be included in the report required under Sec.  63.1549(e)(8).
    (4) Furnace area(s). (i) Personnel doors must be kept closed during 
operations except when entering or exiting the furnace building by the 
aid of door weights or similar device for automatic closure.
    (ii) Large equipment doors must remain closed except when entering 
or existing the building using an automatic closure system or 
equivalent lock-and-key method.
    (iii) It may be necessary to open doors subject to the requirements 
in Sec.  63.1544(a)(4)(i) and (ii) to prevent heat stress or exhaustion 
of workers inside the blast furnace building. Records of such periods 
must be included in the report required under Sec.  63.1549(e)(8).
    (5) Refining and casting area(s). (i) Personnel doors must be kept 
closed during operations except when entering or exiting the furnace 
building by the aid of door weights or similar device for automatic 
closure.
    (ii) Large equipment doors must remain closed except when entering 
or existing the building using an automatic closure system or 
equivalent lock-and-key method.
    (iii) It may be necessary to open doors subject to the requirements 
in Sec.  63.1544(a)(5)(i) and (ii) to prevent heat stress or exhaustion 
of workers inside the refining and casting building. Records of such 
periods must be included in the report required under Sec.  
63.1549(e)(8).
    (b) Notwithstanding paragraph (c) of this section, the standard 
operating procedures manual shall be submitted to the Administrator or 
delegated authority for review and approval.
    (c) Existing manuals that describe the measures in place to control 
fugitive dust sources required as part of a State implementation plan 
for lead shall satisfy the requirements of paragraph (a) of this 
section provided they include all the work practices as described in 
paragraphs (a)(1) through (5) of this section and provided they address 
all the sources listed in paragraphs (a)(1) through (5) of this 
section.
    (d) At all times, the owner or operator 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. 
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.

0
6. Section 63.1545 is revised to read as follows:


Sec.  63.1545  Compliance dates.

    (a) Each owner or operator of an existing primary lead processor 
must achieve compliance with the requirements in Sec.  16.1543(a) no 
later than January 17, 2012. Each owner or operator of an existing 
primary lead processor must achieve compliance with the requirements of 
Sec.  63.1544 no later than February 13, 2012. Each owner or operator 
of an existing primary lead processor must achieve compliance with the 
requirements in Sec.  63.1543(b) and (e) of this subpart no later than 
November 15, 2013.
    (b) Each owner or operator of a new primary lead processor must 
achieve compliance with the requirements of this subpart no later than 
January 17, 2012 or startup, whichever is later.
    (c) Prior to the dates specified in Sec.  63.1545(a), each owner or 
operator of an existing primary lead processor must continue to comply 
with the requirements of Sec. Sec.  63.1543 and 63.1544 as promulgated 
in the June 4, 1999 NESHAP for Primary Lead Smelting.
    (d) Each owner or operator of an existing primary lead processor 
must comply with the requirements of Sec. Sec.  63.1547(g)(1) and (2), 
63.1551, and Table 1 of Subpart TTT of Part 63 on November 15, 2011.

0
7. Section 63.1546 is revised to read as follows:


Sec.  63.1546  Performance testing.

    (a) The following procedures must be used to determine quarterly 
compliance with the emissions standard for lead compounds under Sec.  
63.1543(a) and (b) for existing sources:
    (1) Each owner or operator of existing sources listed in Sec.  
63.1543(a)(1) through (9) and (b) must determine the lead compound 
emissions rate, in units of pounds of lead per hour according to the 
following test methods in appendix A of part 60 of this chapter:
    (i) Method 1 must be used to select the sampling port location and 
the number of traverse points.
    (ii) Method 2, 2F, 2G must be used to measure volumetric flow rate.
    (iii) Method 3, 3A, 3B must be used for gas analysis.
    (iv) Method 4 must be used to determine moisture content of the 
stack gas.
    (v) Method 12 or Method 29 must be used to determine lead emissions 
rate of the stack gas.
    (2) A performance test shall consist of at least three runs. For 
each test run with Method 12 or Method 29, the minimum sample time must 
be 60 minutes and the minimum volume must be 1 dry standard cubic meter 
(35 dry standard cubic feet).
    (3) Performance tests shall be completed quarterly, once every 3 
months, to determine compliance.
    (4) The lead emission rate in pounds per quarter is calculated by 
multiplying

[[Page 70855]]

the quarterly lead emission rate in pounds per hour by the quarterly 
plant operating time, in hours as shown in Equation 1:
[GRAPHIC] [TIFF OMITTED] TR15NO11.000

Where:

EPb = quarterly lead emissions, pounds per quarter;
ERPb = quarterly lead emissions rate, pounds per hour; 
and
QPOT = quarterly plant operating time, hours per quarter.

    (5) The lead production rate, in units of tons per quarter, must be 
determined based on production data for the previous quarter according 
to the procedures detailed in paragraphs (a)(5)(i) through (iv) of this 
section:
    (i) Total lead products production multiplied by the fractional 
lead content must be determined in units of tons.
    (ii) Total copper matte production multiplied by the fractional 
lead content must be determined in units of tons.
    (iii) Total copper speiss production multiplied by the fractional 
lead content must be determined in units of tons.
    (iv) Total quarterly lead production must be determined by summing 
the values obtained in paragraphs (a)(5)(i) through (iii) of this 
section.
    (6) To determine compliance with the production-based lead compound 
emission rate in Sec.  63.1543(a), the quarterly production-based lead 
compound emission rate, in units of pounds of lead emissions per ton of 
lead produced, is calculated as shown in Equation 2 by dividing lead 
emissions by lead production.
[GRAPHIC] [TIFF OMITTED] TR15NO11.001

Where:

CEPb = quarterly production-based lead compound emission 
rate, in units of pounds of lead emissions per ton of lead produced;
EPb = quarterly lead emissions, pounds per quarter; and
PPb = quarterly lead production, tons per quarter.

    (7) To determine quarterly compliance with the emissions standard 
for lead compounds under Sec.  63.1543(b), sum the lead compound 
emission rates for the current and previous three quarters for the 
sources in Sec.  63.1543(b), as determined in accordance with 
paragraphs (a)(1) through (4) of this section.
    (b) Owners and operators must perform an initial compliance test to 
demonstrate compliance with the sinter building in-draft requirements 
of Sec.  63.1543(d) at each doorway opening in accordance with 
paragraphs (b)(1) through (4) of this section.
    (1) Use a propeller anemometer or equivalent device.
    (2) Determine doorway in-draft by placing the anemometer in the 
plane of the doorway opening near its center.
    (3) Determine doorway in-draft for each doorway that is open during 
normal operation with all remaining doorways in their customary 
position during normal operation.
    (4) Do not determine doorway in-draft when ambient wind speed 
exceeds 2 meters per second.
    (c) Performance tests shall be conducted under such conditions as 
the Administrator specifies to the owner or operator based on 
representative performance of the affected source for the period being 
tested. Upon request, the owner or operator shall make available to the 
Administrator such records as may be necessary to determine the 
conditions of performance tests.

0
8. Section 63.1547 is revised to read as follows:


Sec.  63.1547  Monitoring requirements.

    (a) Owners and operators of primary lead processors must prepare, 
and at all times operate according to, a standard operating procedures 
manual that describes in detail the procedures for inspection, 
maintenance, and bag leak detection and corrective action for all 
baghouses that are used to control process, process fugitive, or 
fugitive dust emissions from any source subject to the lead emission 
standards in Sec. Sec.  63.1543 and 63.1544, including those used to 
control emissions from general ventilation systems.
    (b) The standard operating procedures manual for baghouses required 
by paragraph (a) of this section must be submitted to the Administrator 
or delegated authority for review and approval.
    (c) The procedures specified in the standard operating procedures 
manual for inspections and routine maintenance must, at a minimum, 
include the requirements of paragraphs (c)(1) through (8) of this 
section.
    (1) Weekly confirmation that dust is being removed from hoppers 
through visual inspection or equivalent means of ensuring the proper 
functioning of removal mechanisms.
    (2) Daily check of compressed air supply for pulse-jet baghouses.
    (3) An appropriate methodology for monitoring cleaning cycles to 
ensure proper operation.
    (4) Monthly check of bag cleaning mechanisms for proper functioning 
through visual inspection or equivalent means.
    (5) Quarterly visual check of bag tension on reverse air and 
shaker-type baghouses to ensure that bags are not kinked (kneed or 
bent) or laying on their sides. Such checks are not required for 
shaker-type baghouses using self-tensioning (spring loaded) devices.
    (6) Quarterly confirmation of the physical integrity of the 
baghouse through visual inspection of the baghouse interior for air 
leaks.
    (7) Quarterly inspection of fans for wear, material buildup, and 
corrosion through visual inspection, vibration detectors, or equivalent 
means.
    (8) Except as provided in paragraph (h) of this section, continuous 
operation of a bag leak detection system.
    (d) The procedures specified in the standard operating procedures 
manual for maintenance must, at a minimum, include a preventative 
maintenance schedule that is consistent with the baghouse 
manufacturer's instructions for routine and long-term maintenance.
    (e) The bag leak detection system required by paragraph (c)(8) of 
this section must meet the specifications and requirements of (e)(1) 
through (8) of this section.
    (1) The bag leak detection system must be certified by the 
manufacturer to be capable of detecting particulate matter emissions at 
concentrations of 10 milligram per actual cubic meter (0.0044 grains 
per actual cubic foot) or less.
    (2) The bag leak detection system sensor must provide output of 
relative particulate matter loadings, and the owner or operator must 
continuously record the output from the bag leak detection system.
    (3) The bag leak detection system must be equipped with an alarm 
system that will sound when an increase in relative particulate loading 
is detected over a preset level, and the alarm must be located such 
that it can be heard or otherwise determined by the appropriate plant 
personnel.
    (4) Each bag leak detection system that works based on the 
triboelectric effect must be installed, calibrated, and maintained in a 
manner consistent with guidance provided in the U.S. Environmental 
Protection Agency guidance document ``Fabric Filter Bag Leak Detection 
Guidance'' (EPA-454/R-98-015). Other bag leak detection systems must be 
installed, calibrated, and maintained in a manner consistent with the 
manufacturer's written specifications and recommendations.
    (5) The initial adjustment of the system must, at a minimum, 
consist of establishing the baseline output by adjusting the 
sensitivity (range) and the

[[Page 70856]]

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

[[Page 70857]]

through (7) of this section to determine compliance.
    (2) If a CEMS used to measure lead emissions is applicable, the 
owner or operator must install a CERMS with a sensor in a location that 
provides representative measurement of the exhaust gas flow rate at the 
sampling location of the CEMS used to measure lead emissions, taking 
into account the manufacturer's recommendations. The flow rate sensor 
is that portion of the system that senses the volumetric flow rate and 
generates an output proportional to that flow rate.
    (i) The CERMS must be designed to measure the exhaust gas flow rate 
over a range that extends from a value of at least 20 percent less than 
the lowest expected exhaust flow rate to a value of at least 20 percent 
greater than the highest expected exhaust gas flow rate.
    (ii) The CERMS must be equipped with a data acquisition and 
recording system that is capable of recording values over the entire 
range specified in paragraph (j)(2)(i) of this section.
    (iii) Each owner or operator must perform an initial relative 
accuracy test of the CERMS in accordance with the applicable 
Performance Specification in Appendix B to part 60 of the chapter.
    (iv) Each owner or operator must operate the CERMS and record data 
during all periods of operation of the affected facility including 
periods of startup, shutdown, and malfunction, except for periods of 
monitoring system malfunctions, repairs associated with monitoring 
system malfunctions, and required monitoring system quality assurance 
or quality control activities (including, as applicable, calibration 
checks and required zero and span adjustments.
    (3) Each owner or operator must calculate the lead emissions rate 
in tons per year by summing all hours of CEMS data for a year to 
determine compliance with Sec.  63.1543(b).
    (i) When the CERMS are unable to provide quality assured data the 
following applies:
    (A) When data are not available for periods of up to 48 hours, the 
highest recorded hourly emission rate from the previous 24 hours must 
be used.
    (B) When data are not available for 48 or more hours, the maximum 
daily emission rate based on the previous 30 days must be used.

0
9. Section 63.1548 is revised to read as follows:


Sec.  63.1548  Notification requirements.

    (a) The owner or operator of a primary lead processor must comply 
with the notification requirements of Sec.  63.9 of subpart A, General 
Provisions as specified in Table 1 of this subpart.
    (b) The owner or operator of a primary lead processor must submit 
the standard operating procedures manual for baghouses required under 
Sec.  63.1547(a) to the Administrator or delegated authority along with 
a notification that the primary lead processor is seeking review and 
approval of the manual and procedures. Owners or operators of existing 
primary lead processors must submit this notification no later than 
November 6, 2000. The owner or operator of a primary lead processor 
that commences construction or reconstruction after April 17, 1998, 
must submit this notification no later than 180 days before startup of 
the constructed or reconstructed primary lead processor, but no sooner 
than September 2, 1999.

0
10. Section 63.1549 is revised to read as follows:


Sec.  63.1549  Recordkeeping and reporting requirements.

    (a) The owner or operator of a primary lead processor must comply 
with the recordkeeping requirements of Sec.  63.10 of subpart A, 
General Provisions as specified in Table 1 of this subpart.
    (b) In addition to the general records required by paragraph (a) of 
this section, each owner or operator of a primary lead processor must 
maintain for a period of 5 years, records of the information listed in 
paragraphs (b)(1) through (10) of this section.
    (1) Production records of the weight and lead content of lead 
products, copper matte, and copper speiss.
    (2) Records of the bag leak detection system output.
    (3) An identification of the date and time of all bag leak 
detection system alarms, the time that procedures to determine the 
cause of the alarm were initiated, the cause of the alarm, an 
explanation of the actions taken, and the date and time the cause of 
the alarm was corrected.
    (4) Any recordkeeping required as part of the practices described 
in the standard operating procedures manual for baghouses required 
under Sec.  63.1547(a).
    (5) If an owner or operator chooses to demonstrate continuous 
compliance with the sinter building in-draft requirement under Sec.  
63.1543(d) by employing the method allowed in Sec.  63.1547(i)(1), the 
records of the daily doorway in-draft checks, an identification of the 
periods when there was not a positive in-draft, and an explanation of 
the corrective actions taken.
    (6) If an owner or operator chooses to demonstrate continuous 
compliance with the sinter building in-draft requirement under Sec.  
63.1543(d) by employing the method allowed in Sec.  63.1547(i)(2), the 
records of the output from the continuous volumetric flow monitor(s), 
an identification of the periods when the 15-minute volumetric flow 
rate dropped below the minimum established during the most recent in-
draft determination, and an explanation of the corrective actions 
taken.
    (7) If an owner or operator chooses to demonstrate continuous 
compliance with the sinter building in-draft requirement under Sec.  
63.1543(d) by employing the method allowed in Sec.  63.1547(i)(2), and 
volumetric flow rate is monitored at the baghouse inlet, records of the 
daily checks of damper positions, an identification of the days that 
the damper positions were not in the positions established during the 
most recent in-draft determination, and an explanation of the 
corrective actions taken.
    (8) Records of the occurrence and duration of each malfunction of 
operation (i.e., process equipment) or the air pollution control 
equipment and monitoring equipment.
    (9) Records of actions taken during periods of malfunction to 
minimize emissions in accordance with Sec. Sec.  63.1543(i) and 
63.1544(d), including corrective actions to restore malfunctioning 
process and air pollution control and monitoring equipment to its 
normal or usual manner of operation.
    (c) Records for the most recent 2 years of operation must be 
maintained on site. Records for the previous 3 years may be maintained 
off site.
    (d) The owner or operator of a primary lead processor must comply 
with the reporting requirements of Sec.  63.10 of subpart A, General 
Provisions as specified in Table 1 of this subpart.
    (e) In addition to the information required under Sec.  63.10 of 
the General Provisions, the owner or operator must provide semi-annual 
reports containing the information specified in paragraphs (e)(1) 
through (9) of this section to the Administrator or designated 
authority.
    (1) The reports must include records of all alarms from the bag 
leak detection system specified in Sec.  63.1547(e).
    (2) The reports must include a description of the actions taken 
following each bag leak detection system alarm pursuant to Sec.  
63.1547(f).
    (3) The reports must include a calculation of the percentage of 
time the alarm on the bag leak detection system sounded during the 
reporting period pursuant to Sec.  63.1547(g).

[[Page 70858]]

    (4) If an owner or operator chooses to demonstrate continuous 
compliance with the sinter building in-draft requirement under Sec.  
63.1543(d) by employing the method allowed in Sec.  63.1547(i)(1), the 
reports must contain an identification of the periods when there was 
not a positive in-draft, and an explanation of the corrective actions 
taken.
    (5) If an owner or operator chooses to demonstrate continuous 
compliance with the sinter building in-draft requirement under Sec.  
63.1543(d) by employing the method allowed in Sec.  63.1547(i)(2), the 
reports must contain an identification of the periods when the 15-
minute volumetric flow rate(s) dropped below the minimum established 
during the most recent in-draft determination, and an explanation of 
the corrective actions taken.
    (6) If an owner or operator chooses to demonstrate continuous 
compliance with the sinter building in-draft requirement under Sec.  
63.1543(d) by employing the method allowed in Sec.  63.1547(i)(2), and 
volumetric flow rate is monitored at the baghouse inlet, the reports 
must contain an identification of the days that the damper positions 
were not in the positions established during the most recent in-draft 
determination, and an explanation of the corrective actions taken.
    (7) The reports must contain a summary of the records maintained as 
part of the practices described in the standard operating procedures 
manual for baghouses required under Sec.  63.1547(a), including an 
explanation of the periods when the procedures were not followed and 
the corrective actions taken.
    (8) The reports shall contain a summary of the fugitive dust 
control measures performed during the required reporting period, 
including an explanation of any periods when the procedures outlined in 
the standard operating procedures manual required by Sec.  63.1544(a) 
were not followed and the corrective actions taken. The reports shall 
not contain copies of the daily records required to demonstrate 
compliance with the requirements of the standard operating procedures 
manuals required under Sec. Sec.  63.1544(a) and 63.1547(a).
    (9) If there was a malfunction during the reporting period, the 
report shall also include the number, duration, and a brief description 
for each type of malfunction which occurred during the reporting period 
and which caused or may have caused any applicable emission limitation 
to be exceeded. The report must also include a description of actions 
taken by an owner or operator during a malfunction of an affected 
source to minimize emissions in accordance with Sec. Sec.  63.1543(i) 
and 63.1544(d), including actions taken to correct a malfunction.

0
11. Section 63.1550 is revised to read as follows:


Sec.  63.1550  Delegation of authority.

    (a) In delegating implementation and enforcement authority to a 
State under section 112(l) of the act, the authorities contained in 
paragraph (b) of this section must be retained by the Administrator and 
not transferred to a State.
    (b) Authorities which will not be delegated to States: No 
restrictions.

0
12. Section 63.1551 is added to read as follows:


Sec.  63.1551  Affirmative defense for exceedance of emission limit 
during malfunction.

    In response to an action to enforce the standards set forth in this 
subpart you may assert an affirmative defense to a claim for civil 
penalties for exceedances of such standards that are caused by 
malfunction, as defined at 40 CFR 63.2. Appropriate penalties may be 
assessed, however, if you fail to meet your burden of proving all of 
the requirements in the affirmative defense. The affirmative defense 
shall not be available for claims for injunctive relief.
    (a) Affirmative defense. To establish the affirmative defense in 
any action to enforce such a limit, you must timely meet the 
notification requirements in paragraph (b) of this section, and must 
prove by a preponderance of evidence that:
    (1) The excess emissions:
    (i) Were caused by a sudden, infrequent, and unavoidable failure of 
air pollution control and monitoring equipment, process equipment, or a 
process to operate in a normal or usual manner, and
    (ii) Could not have been prevented through careful planning, proper 
design or better operation and maintenance practices; and
    (iii) Did not stem from any activity or event that could have been 
foreseen and avoided, or planned for; and
    (iv) Were not part of a recurring pattern indicative of inadequate 
design, operation, or maintenance; and
    (2) Repairs were made as expeditiously as possible when the 
applicable emission limitations were being exceeded. Off-shift and 
overtime labor were used, to the extent practicable to make these 
repairs; and
    (3) The frequency, amount and duration of the excess emissions 
(including any bypass) were minimized to the maximum extent practicable 
during periods of such emissions; and
    (4) If the excess emissions resulted from a bypass of control 
equipment or a process, then the bypass was unavoidable to prevent loss 
of life, personal injury, or severe property damage; and
    (5) All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality, the environment and human 
health; and
    (6) All emissions monitoring and control systems were kept in 
operation if at all possible, consistent with safety and good air 
pollution control practices; and
    (7) All of the actions in response to the excess emissions were 
documented by properly signed, contemporaneous operating logs; and
    (8) At all times, the facility was operated in a manner consistent 
with good practices for minimizing emissions; and
    (9) A written root cause analysis has been prepared, the purpose of 
which is to determine, correct, and eliminate the primary causes of the 
malfunction and the excess emissions resulting from the malfunction 
event at issue. The analysis shall also specify, using best monitoring 
methods and engineering judgment, the amount of excess emissions that 
were the result of the malfunction.
    (b) Notification. The owner or operator of the facility 
experiencing an exceedance of its emission limit(s) during a 
malfunction shall notify the Administrator by telephone or facsimile 
(FAX) transmission as soon as possible, but no later than two business 
days after the initial occurrence of the malfunction, if it wishes to 
avail itself of an affirmative defense to civil penalties for that 
malfunction. The owner or operator seeking to assert an affirmative 
defense shall also submit a written report to the Administrator within 
45 days of the initial occurrence of the exceedance of the standards in 
this subpart to demonstrate, with all necessary supporting 
documentation, that it has met the requirements set forth in paragraph 
(a) of this section. The owner or operator may seek an extension of 
this deadline for up to 30 additional days by submitting a written 
request to the Administrator before the expiration of the 45 day 
period. Until a request for an extension has been approved by the 
Administrator, the owner or operator is subject to the requirement to 
submit such report within 45 days of the initial occurrence of the 
exceedance.

0
13. Table 1 to Subpart TTT of Part 63 is revised to read as follows:

[[Page 70859]]



 Table 1 of Subpart TTT--General Provisions Applicability to Subpart TTT
------------------------------------------------------------------------
                                    Applies to
           Reference               subpart  TTT           Comment
------------------------------------------------------------------------
 
                              * * * * * * *
63.6(a), (b), (c).............  Yes.
63.6(d).......................  No...............  Section reserved.
63.6(e)(1)(i).................  No...............  See 63.1543(i) and
                                                    63.1544(d) for
                                                    general duty
                                                    requirement.
63.6(e)(1)(ii)................  No.
63.6(e)(1)(iii)...............  Yes.
63.6(e)(2)....................  No...............  Section reserved.
63.6(e)(3)....................  No.
63.6(f)(1)....................  No.
63.6(g).......................  Yes.
63.6(h).......................  No...............  No opacity limits in
                                                    rule.
63.6(i).......................  Yes.
63.6(j).......................  Yes.
Sec.   63.7(a)-(d)............  Yes.
Sec.   63.7(e)(1).............  No...............  See 63.1546(c).
Sec.   63.7(e)(2)-(e)(4)......  Yes.
63.7(f), (g), (h).............  Yes.
63.8(a)-(b)...................  Yes.
63.8(c)(1)(i).................  No.
63.8(c)(1)(ii)................  Yes.
63.8(c)(1)(iii)...............  No.
63.8(c)(2)-(d)(2).............  Yes.
63.8(d)(3)....................  Yes, except for
                                 last sentence.
63.8(e)-(g)...................  Yes.
63.9(a), (b), (c), (e), (g),    Yes.
 (h)(1) through (3), (h)(5)
 and (6), (i) and (j).
63.9(f).......................  No.
63.9(h)(4)....................  No...............  Reserved.
63.10(b)(2)(i)................  No.
63.10(b)(2)(ii)...............  No...............  See 63.1549(b)(9) and
                                                    (10) for
                                                    recordkeeping of
                                                    occurrence and
                                                    duration of
                                                    malfunctions and
                                                    recordkeeping of
                                                    actions taken during
                                                    malfunction.
63.10(b)(2)(iii)..............  Yes.
63.10(b)(2)(iv)-(b)(2)(v).....  No.
63.10(b)(2)(vi)-(b)(2)(xiv)...  Yes.
63.(10)(b)(3).................  Yes.
63.10(c)(1)-(9)...............  Yes.
63.10(c)(10)-(11).............  No...............  See 63.1549(b)(9) and
                                                    (10) for
                                                    recordkeeping of
                                                    malfunctions.
63.10(c)(12)-(c)(14)..........  Yes.
63.10(c)(15)..................  No.
63.10(d)(1)-(4)...............  Yes.
63.10(d)(5)...................  No...............  See 63.1549(e)(9) for
                                                    reporting of
                                                    malfunctions.
63.10(e)-(f)..................  Yes.
 
                              * * * * * * *
------------------------------------------------------------------------

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