# National Emissions Standards for Hazardous Air Pollutants From Secondary Lead Smelting > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-32933 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** January 5, 2012 - **Citation:** 77 FR 556 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2011-0344; FRL-9610-9] RIN 2060-AQ68 National Emissions Standards for Hazardous Air Pollutants From Secondary Lead Smelting AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This action finalizes the residual risk and technology review conducted for the secondary lead smelting source category regulated under national emission standards for hazardous air pollutants. These final amendments include revisions to the emissions limits for lead compounds; revisions to the standards for fugitive emissions; the addition of total hydrocarbon and dioxin and furan emissions limits for reverberatory and electric furnaces; the addition of a work practice standard for mercury emissions; the modification and addition of testing and monitoring, recordkeeping, and reporting requirements; related notifications; and revisions to the regulatory provisions related to emissions during periods of startup, shutdown, and malfunction. DATES: This final action is effective on January 5, 2012. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of January 5, 2012. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2011-0344. 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: topham.nathan@epa.gov. For additional contact information, see the following SUPPLEMENTARY INFORMATION section. SUPPLEMENTARY INFORMATION: For specific information regarding the risk assessment and exposure 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: stewart.michael@epa.gov. 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 a OAQPS contact b Secondary Lead Smelting Maria Malave, (202) 564-7027, malave.maria@epa.gov Nathan Topham, (919) 541-0483, topham.nathan@epa.gov. a EPA's Office of Enforcement and Compliance Assurance. b EPA's Office of Air Quality Planning and Standards. Acronyms and Abbreviations. The following acronyms and abbreviations are used in this document. CAA Clean Air Act CBI confidential business information CDX Central Data Exchange CEMS continuous emission monitoring system CPMS continuous parameter monitoring system D/F dioxins and furans ERT Electronic Reporting Tool HAP hazardous air pollutants HQ hazard quotient ICR information collection request lbs/yr pounds per year MACT maximum achievable control technology MIR maximum individual risk NAAQS National Ambient Air Quality Standards NESHAP National Emission Standards for Hazardous Air Pollutants ng/dscm nanograms per dry standard cubic meter NTTAA National Technology Transfer and Advancement Act OP Office of Policy ppbv parts per billion by volume ppbw parts per billion by weight ppmv parts per million by volume ppmw parts per million by weight REL recommended exposure limit RFA Regulatory Flexibility Act RIA Regulatory Impact Analysis RIN Regulatory Information Number RTR Risk and Technology Review SRF short rotary furnace TEF toxic equivalency factor TEQ toxic equivalency quotient THC total hydrocarbons TTN Technology Transfer Network UMRA Unfunded Mandates Reform Act UPL upper prediction limit WWW World Wide Web Background Information Document. On May 19, 2011 (76 FR 29032), the EPA proposed revisions to the Secondary 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 public comments on the proposal not presented in the preamble, and the EPA's responses to those comments, is available in Docket ID No. EPA-HQ-OAR-2011-0344. A tracked changes 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. What is the affected source? C. Where can I get a copy of this document? D. Judicial Review II. Background III. Summary of the Final Rule A. What are the final rule amendments for the Secondary Lead Smelting source category? B. What are the effective and compliance dates of the standards? C. What are the requirements for submission of performance test data to the EPA? IV. Summary of Significant Changes Since Proposal A. Changes to the Risk Assessment Performed Under CAA Section 112(f) B. Changes to the Technology Review Performed Under CAA Section 112(d)(6) C. Other Changes Since Proposal V. Summary of Significant Comments and Responses A. Use of Lead Primary NAAQS as a Measure of Acceptability of Risk for Public Health B. Total Enclosure Requirements C. Work Practice Standard Requirements D. Emission Standards for Organic HAP From Rotary Furnaces E. The EPA's Risk Assessment Supporting the Proposed Rule F. Miscellaneous Changes to the Regulatory Text G. Emission Testing Methods and Frequency H. Startup, Shutdown, and Malfunction VI. Summary of Cost, Environmental, and Economic Impacts A. What are the affected facilities? B. What are the air quality impacts? C. What are the cost impacts? D. What are the economic impacts? E. What are the benefits? 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 K. Congressional Review Act I. General Information A. Does this action apply to me? Regulated Entities. Categories and entities potentially regulated by this action are shown in Table 2 of this preamble. Table 2—NESHAP and Industrial Source Categories Affected by This Final Action NESHAP and source category NAICS a Code MACT b Code Secondary Lead Smelting 331492 0205 a North American Industry Classification System. b Maximum Achievable Control Technology. Table 2 of this preamble 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 NESHAP. As defined in the source category listing report published by the EPA in 1992, the Secondary Lead Smelting source category is defined as any facility at which lead-bearing scrap materials (including, but not limited to lead acid batteries) are recycled by smelting into elemental lead or lead alloys. 1 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 CAA section 112(b)(7). 1 USEPA. Documentation for Developing the Initial Source Category List—Final Report, USEPA/OAQPS, EPA-450/3-91-030, July, 1992. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in Table 1 of this preamble in the preceding FOR FURTHER INFORMATION CONTACT section. B. What is the affected source? The final rule applies to owners and operators of secondary lead smelters. The affected source for this subpart is any of the following sources at a secondary lead smelter: Blast, reverberatory, rotary, and electric furnaces; refining kettles; agglomerating furnaces; dryers; process fugitive emissions sources; buildings containing lead bearing materials; and fugitive dust sources. A new affected source is any affected source at a secondary lead smelting facility of which the construction or reconstruction commenced after May 19, 2011. If components of an existing affected source are replaced such that the replacement meets the definition of reconstruction in 40 CFR 63.2 and the reconstruction commenced on or after May 19, 2011, then the existing source becomes a reconstructed source and is subject to the relevant standards for a new affected source. The reconstructed source must comply with the requirements for a new affected source upon initial startup of the reconstructed source, or by March 5, 2012, whichever is later. C. 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 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. D. Judicial Review Under CAA section 307(b)(1), 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 March 5, 2012. Under CAA section 307(b)(2), 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 CAA section 112(b), 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 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 May 19, 2011, the EPA published a proposed rule in the Federal Register for the Secondary Lead Smelting NESHAP, 40 CFR part 63, subpart X that took into consideration the residual risk and technology review (RTR) analyses. Today's action provides the EPA's final determinations pursuant to the RTR provisions of CAA section 112 for the Secondary Lead Smelting source category, and also promulgates first-time standards under section 112 (d)(2) (MACT) for certain hazardous air pollutants emitted by secondary lead smelters. Specifically, we are taking the following actions: • Revising some requirements of the NESHAP related to control of metal HAP emissions based on our risk assessment and technology reviews. • Finalizing first-time total hydrocarbon (THC) and dioxin and furan (D/F) emissions limits and a plastic separation work practice standard to prevent dioxin formation. • Finalizing work practice standards for mercury. • Revising the requirements in the NESHAP related to emissions during periods of startup, shutdown, and malfunction (SSM). • Incorporating the use of plain language into the rule. • Addressing technical and editorial corrections in the rule. III. Summary of the Final Rule A. What are the final rule amendments for the Secondary Lead Smelting source category? EPA promulgated the National Emission Standards for Hazardous Air Pollutant Emissions: Secondary Lead Smelting on June 13, 1997 (62 FR 32216). The standards are codified at 40 CFR part 63, subpart X. The secondary lead smelting industry consists of facilities that recycle lead-bearing scrap material, typically lead acid batteries, into elemental lead or lead alloys. The source category covered by this MACT standard currently includes 16 facilities, including one facility that is not currently operating and one facility that is in the process of being constructed. This section describes the final amendments to the secondary lead smelting NESHAP. 2 These revisions include changes to the stack and fugitive metal HAP emission standards, the addition of new THC and D/F emission limits, the addition of a work practice standard to separate plastics from automotive batteries to prevent dioxin emissions, the addition of work practice standards to minimize mercury emissions, and changes to the requirements that apply during periods of startup, shutdown, and malfunction. In addition to these changes described below, we are making minor changes to the regulatory text to correct editorial errors and to make plain language revisions. We have evaluated the cost, emissions reductions, energy implications and cost effectiveness of all of the standards being promulgated in this final rule and have determined that these measures are cost effective, technically feasible and will provide the public with an ample margin of safety from exposure to emissions from the secondary lead smelter source category. See Cost Impacts of the Revised NESHAP for the Secondary Lead Smelting Source Category, which is available in the docket, for information on the costs and cost effectiveness of each of the standards being promulgated in this final rule. 2 Note that the EPA is reprinting portions of the language from the 1997 NESHAP here so the entire rule appears in one place, for readers' convenience. The EPA is not amending, reopening or otherwise reconsidering these reprinted portions of the 1997 rule. 1. Stack and Fugitive Metal HAP Emission Standards For the reasons provided in Section IV.A of this preamble and in the support documents in the docket, we have determined that the risks associated with emissions from this source category are unacceptable primarily due to fugitive emissions of lead. We have further determined that there have been developments in practices, processes, and control technologies that warrant revisions to the MACT standard ( i.e., the standards promulgated pursuant to section 112(d)(2) and (3)) for this source category. Therefore, to satisfy the requirements of CAA sections 112(d)(6) and 112(f), we are revising the MACT standard to include: • A facility wide, flow weighted average lead 3 emissions limit from stacks of 0.20 mg/dscm and an individual stack lead emissions limit of 1.0 mg/dscm for each stack at existing sources. For new sources, a lead emissions limit of 0.20 mg/dscm applies to each individual stack at a modified or “greenfield” new facility. 3 Throughout this preamble, all references to lead emissions means lead compounds as listed by Congress at section 112(b)(1) of the Act. • A requirement for the facility to operate sources of fugitive lead emissions within total enclosures that are maintained under negative pressure and vented to a control device. These sources of fugitive emissions include the smelting furnaces, smelting furnace charging areas, lead taps, slag taps, molds during tapping, battery breakers, refining kettles, casting areas, dryers, material handling areas, and areas where dust from fabric filters, sweepings or used fabric filters are processed. The facilities are also required to adopt a list of specified work practice standards to minimize fugitive emissions. 2. Organic HAP Emissions Standards To satisfy CAA sections 112(d)(2) and 112(d)(3), we are also revising the MACT standard to include first-time D/F and THC emission limits (with THC serving as a surrogate for non-dioxin organic HAP). These emission limits are summarized in Table 3 of this preamble. Table 3—Summary of New THC and D/F Emission Limits Source type D/F Emission limit a THC Emission Limit b New and Existing Collocated Blast and Reverberatory Furnaces 0.50 c 20 Existing Blast Furnaces 170 c 360 New Blast Furnaces 10 c 70 New and Existing Reverberatory and Electric Furnaces 1.0 12 a ng/dscm on a TEQ basis, corrected to 7 percent O 2 . b ppmv as propane, corrected to 4 percent CO 2 . c Emission limit is unchanged from 1997 NESHAP. 3. 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 (2010). Specifically, the Court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), that was part of a regulation, commonly referred to as the “General Provisions Rule”, that the EPA promulgated under CAA section 112. When incorporated into CAA section 112(d) regulations for specific source categories, these two provisions exempted sources from the requirement to comply with the otherwise applicable CAA section 112(d) emission standard during periods of SSM. We have eliminated the SSM exemption for secondary lead smelting facilities in this rule. Consistent with Sierra Club v. EPA, the EPA has established standards in this rule for all periods of operation. We have also revised Table 1 to subpart X (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 established different standards for non-dioxin organic HAP during those periods. Information on periods of startup and shutdown in the industry indicate that lead emissions during these periods do not increase (consistent with our engineering judgment that lead emissions would not increase during these periods because lead-bearing feed is not being smelted during these periods). Furthermore, all lead-emitting processes are controlled by either control devices or work practices and these controls would not typically be affected by startup or shutdown. Therefore, the EPA is not adopting separate lead-emission standards for periods of startup and shutdown. 4 4 Since startup and shutdown refers to the smelting process, and not to ancillary management activities, there are no startup and shutdown standards for process fugitive emissions since startup and shutdown do not occur for the activities generating such emissions. The EPA has revised this final rule to require sources to meet a work practice standard that requires the development of standard operating procedures designed to minimize emissions of THC for each start-up and shutdown scenario anticipated for all units subject to THC limits. Temperature monitoring is the metric used to determine continuous compliance with emission standards for THC. This metric is inappropriate as a measure of the destruction efficiency of these organic pollutants during periods of startup and shutdown. The EPA is not including a standard for dioxins and furans during periods of startup and shutdown. This is because dioxins and furans will not be emitted during those periods. During startup and shutdown, scrap feed materials (including chlorinated plastics and flame retardants) that contain the precursors needed for dioxin formation are not introduced into the smelter 5 so there are no conditions that could give rise to dioxin and furan emissions. 5 “Shutdown” is defined as a period “when no lead bearing materials are being fed to the furnace and smelting operations have ceased * * *”. Section 63.542 (definition of “shutdown”). The EPA determined that it is not technically and economically feasible for units subject to THC limits to perform stack testing for this pollutant during periods of startup and shutdown due to technical and economic impracticality associated with testing secondary lead smelting furnaces during these periods. The furnaces are heated during periods of startup through slow feeding of natural gas and small amounts of coke, with no lead acid batteries fed to the furnace during these periods. Test crews would have to be on-site prior to a period of startup or shutdown occurring and may need to break up a single test over multiple startups or shutdowns, the length of which could vary depending on the type of secondary lead smelting furnace being tested, that would happen infrequently to gather enough data to complete a three-run test. See also section V.G of this preamble discussing these standards further. 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, emissions 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 case law, nothing in that case law 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 CAA section 112 and is a reasonable interpretation of the statute. In section 3.2.1 of the separate response to comment document, we respond to comments that emissions during malfunctions should be accounted for in assessing risk pursuant to CAA section 112(f)(2). 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 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 (September 20, 1999); Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (February 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 63.542 (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 63.552 (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 40 CFR 63.552 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 CAA section 113 (see also 40 CFR 22.27). The EPA is including an affirmative defense in the final rule in an attempt to balance a tension, inherent in many types of air regulations, 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 case law 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 case law such as Sierra Club v. EPA and the CAA 1977 amendments undermine the relevance of these cases today, they support the 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. 7602(k) and account for unplanned upsets and thus support the reasonableness of the standard as a whole. B. What are the effective and compliance dates of the standards? The revisions to the MACT standards being promulgated in this action are effective on January 5, 2012. For the MACT standards being addressed in this action, the compliance date for the revised SSM requirements is the effective date of the standards, January 5, 2012. The compliance date for existing sources for the revised stack lead emission limit and the revised fugitive emission standard including the requirement to adopt work practice standards and install total enclosures for specified process fugitive emission sources, and for the new D/F and THC emission limits, is 2 years from the effective date of the standard, January 6, 2014. New sources must comply with the all of the standards immediately upon the effective date of the standard, January 5, 2012, or upon startup, whichever is later. C. What are the requirements for submission of performance test data to the EPA? In this action, as a step to increase the ease and efficiency of data submittal and improve data accessibility, the EPA is requiring the electronic submittal of select performance test data. Specifically, the EPA is requiring owners and operators of secondary lead smelting facilities to submit electronic copies of performance test reports required under 40 CFR 63.543 to the EPA's WebFIRE database. The WebFIRE database was constructed to store performance test data for use in developing emission factors. A description of the WebFIRE database is available at http://cfpub.epa.gov/oarweb/index.cfm?action=fire.main. The EPA must have performance test data to conduct effective reviews of CAA sections 112 and 129 standards, as well as for many other purposes including compliance determinations, emission factor development, and annual emission rate determinations. In conducting these required reviews, the EPA has found it ineffective and time consuming, not only for us, but also for other regulatory agencies and for source owners and operators, to locate, collect, and submit performance test data because of varied locations for data storage and varied data storage methods. In recent years, though, stack testing firms have typically collected performance test data in electronic format, making it possible to move to an electronic data submittal system that would increase the ease and efficiency of data submittal and improve data accessibility. One major advantage of submitting performance test data through the Electronic Reporting Tool (ERT) is a standardized method to compile and store much of the documentation required to be reported by this rule. Another advantage is that the ERT clearly states what testing information would be required. Another important benefit of submitting these data to the EPA at the time the source test is conducted is that it should substantially reduce the effort involved in data collection activities in the future. When the EPA has performance test data in hand, there will likely be fewer or less substantial data collection requests in conjunction with prospective required residual risk assessments or technology reviews. This results in a reduced burden on both affected facilities (in terms of reduced labor to respond to data collection requests) and the EPA (in terms of preparing and distributing data collection requests and assessing the results). State, local, and tribal agencies can also benefit from a more streamlined and accurate review of electronic data submitted to them. The ERT allows for an electronic review process rather than a manual data assessment making review and evaluation of the data and calculations easier and more efficient. As mentioned above, data entry will be through an electronic emissions test report structure called the Electronic Reporting Tool or ERT. The ERT will generate an electronic report which will be submitted using the Compliance and Emissions Data Reporting Interface (CEDRI). The submitted report is transmitted through the EPA's Central Data Exchange (CDX) network for storage in the WebFIRE database making submittal of data very straightforward and easy. A description of the ERT can be found at http://www.epa.gov/ttn/chief/ert/index.html and CEDRI can be accessed through the CDX Web site ( www.epa.gov/cdx ). The requirement to submit performance test data electronically to the EPA does not create any additional performance testing and would apply only to those performance tests conducted using test methods that are supported by the ERT. The ERT contains a specific electronic data entry form for most of the commonly used EPA reference methods. A listing of the pollutants and test methods supported by the ERT is available at http:// www.epa.gov/ttn/chief/ert/index.html. We believe that industry will benefit from this new electronic data submittal requirement. Having these data, the EPA will be able to develop improved emission factors, make fewer information requests, and promulgate better regulations. The information to be reported is already required for the existing test methods and is necessary to evaluate the conformance to the test method. Finally, another benefit of submitting data to WebFIRE electronically is that these data will greatly improve the overall quality of the existing and new emission factors by supplementing the pool of emissions test data for establishing emissions factors and by ensuring that the factors are more representative of current industry operational procedures. A common complaint heard from industry and regulators is that emission factors are outdated or not representative of a particular source category. With timely receipt and incorporation of data from most performance tests, the EPA will be able to ensure that emission factors, when updated, represent the most current range of operational practices. In summary, in addition to supporting regulation development, control strategy development, and other air pollution control activities, having an electronic database populated with performance test data will save industry, state, local, tribal agencies, and the EPA significant time, money, and effort while improving the quality of emission inventories and, as a result, air quality regulations. IV. Summary of Significant Changes Since Proposal A. Changes to the Risk Assessment Performed Under CAA Section 112(f) In the proposed rulemaking, the EPA presented a number of options for additional controls on the Secondary Lead Smelting source category. In that notice, the EPA solicited comment on the proposed options as well as on all of the analyses and data upon which the options were based, including the risk methods and results presented in the draft document: Residual Risk Assessment for the Secondary Lead Smelting Source Category. During the public comment period for the proposed rule, several parties submitted comments and suggested revisions regarding the emissions used for the risk assessment, and also submitted other information relevant to the risk assessment (see docket ID EPA-HQ-OAR-2011-0344 for all public comments). After considering these submissions, the EPA revised its analyses. Revised methods, model inputs, and risk results are presented in the report: Residual Risk Assessment for the Secondary 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 memorandum titled: Development of the RTR Emissions Dataset for the Secondary Lead Smelting Source Category, which can also be found in the docket for this rulemaking. Considering the updated emissions information received during the public comment period for the proposed rule, our final risk analysis estimates that the primary NAAQS for lead, used in this rule as a measure of acceptable risk from air-borne lead emissions, could be exceeded at 9 of 15 facilities based on actual emissions, largely due to fugitive dust emissions (see Table 4). At these 9 facilities, fugitive dust emissions account for about 94 to 99 percent of the estimated 3-month maximum lead concentrations. 6 Our analysis also estimates that approximately 200 people live in areas around three of these facilities where 3-month maximum lead concentrations are estimated to be between one and three times above the lead NAAQS. Allowable stack emissions of lead also resulted in modeled concentrations exceeding the NAAQS, with modeled lead ambient air levels as high as 8 and 10 times above the NAAQS. This analysis also estimates that 3-month maximum lead concentrations from a secondary lead smelter could be up to about 20 times the NAAQS for lead based on actual emissions. The maximum lead exceedances at populated census block centroids were between one and three times the NAAQS. There is some uncertainty associated with the fugitive emissions estimates that is derived from the uncertainty involved in determining the housekeeping and enclosure factors. This uncertainty could have important impacts on the estimated fugitive emissions and the resulting modeled ambient concentration. For example, if the level of control assumed through the use of full enclosure and robust housekeeping were both increased from 75 percent to 85 percent, the estimated fugitive emissions at the RSR facility would be about 43 pounds (roughly three times lower than those estimated in this rule). If the level of control assumed through the use of full enclosure and robust housekeeping were both decreased from 75 percent to 65 percent, the estimated fugitive emissions at the RSR facility would be about 240 pounds (roughly two times higher than those estimated in this rule). As shown in this example, changing the estimates of control efficiency achieved with full enclosure and robust housekeeping practices by 10 percent each could impact the resulting fugitive emission estimates for facilities employing that level of control by two to three times. These estimates could significantly impact the resulting risk estimates since most of the impact of lead emissions was due to fugitive dust emissions. While there are uncertainties associated with estimating fugitive emissions, we conclude that the methodology used in this rulemaking provided reasonable estimates of fugitive emissions for these sources. For further details, see Development of the RTR Emissions Dataset for the Secondary Lead Smelting Source Category, available in docket ID EPA-HQ-OAR-2011-0344, which describes how we developed these fugitive emissions estimates and provides a presentation of our estimates compared to estimates submitted via the ICR and estimates reported to the TRI. 6 For all facilities, the percent contribution of fugitive and stack emissions to modeled ambient lead concentrations has only been estimated for the model receptor representing the site of maximum lead impact. Table 4—Secondary Lead Smelting Facility Modeled Maximum Ambient Lead Concentrations Considering Actual Emissions a [Rolling 3-month average values] Facility name City State Highest modeled lead concentration (μg/m 3 ) Concentration is X times the NAAQS Doe Run Company-Buick Mill Boss MO 2.36 20 Sanders Lead Co Troy AL 2.16 10 Exide Corporation Vernon CA 1.14 8 Battery Recycling Co Arecibo PR 0.76 5 Gulf Coast Recycling, Inc Tampa FL 0.38 3 Exide Technologies-Canon Hollow Plant Forest City MO 0.47 3 Gopher Resource Corp Eagan MN 0.35 2 Frisco Battery Recycling Frisco TX 0.23 2 Exide Tech/Reading Smelter Reading PA 0.25 2 Quemetco, Inc Industry CA 0.17 1 Exide Technologies Muncie IN 0.15 1 Exide Technologies/B R Smelter Baton Rouge LA 0.14 1 Revere Smelting & Refining Corp Middletown NY 0.10 0.7 Quemetco, Inc Indianapolis IN 0.07 0.5 East Penn Mfg. Co Inc/Smelter Plt Lyon Station PA 0.02 0.1 a Values of 1 or less in the last column indicate that modeled lead concentrations are at or below the NAAQS for lead. We also note that there were changes to our cancer, acute, and PB-HAP multipathway case study analyses (see section 3.4 of the risk assessment document) for non-lead HAP as a result of the updated risk assessment performed for the final rule. With respect to our updated cancer risk assessment, we estimate that the maximum individual risk (MIR) of cancer due to actual emissions is 50 in a million predominantly due to fugitive dust emissions of arsenic and cadmium as compared to the analysis at proposal of risk of 50 in a million but based on a different secondary lead facility. Moreover, approximately 700 people were estimated to have cancer risks above 10 in a million and approximately 80,000 people were estimated to have cancer risks above 1 in a million considering all facilities in this source category (as compared to the analysis at proposal of 1,500 above 10 in a million and 128,000 above 1 in a million). In addition, the MIR due to MACT allowable emissions remains 200 in a million predominantly from stack emissions of arsenic. The updated worst-case acute hazard quotient (HQ) value is 20 at two facilities (based on the REL for arsenic; the REL is the only available acute health benchmark value for arsenic and all other pollutants had HQ values less than or equal to 1), driven by both stack and fugitive dust emissions of arsenic (as compared to analysis at proposal of an acute HQ value of 30 based on the REL for arsenic at one facility driven by emissions from stacks). Finally, the risk assessment supporting the final rulemaking estimates that the cancer MIR values from both multipathway case study analyses ( i.e., in Frisco, TX and Middletown, NY; see section 3.2 of the final risk assessment document) are less than 1 in a million (as compared to an estimated multipathway MIR of 30 in a million and less than 1 in a million in the Frisco, TX and Middletown, NY multipathway case study analyses for the proposed rule). Notably, the reduction in multipathway risks resulted from updated emissions information received during the public comment period with respect to these facilities. Taking into account all the results of the final risk assessment, and similar to the proposed rulemaking, we conclude that risks to public health due to emissions from this source category are unacceptable. Our conclusion is primarily based on risk from exposure to air-borne lead emissions but also considers other risk metrics such as cancer and non-cancer risks associated with actual and allowable stack emissions of non-lead HAPs, especially arsenic and cadmium. As mentioned above, actual lead emissions resulted in modeled concentrations of lead above the lead NAAQS at 9 of 15 facilities. Thus, we note that allowable stack emissions of lead and other HAP metals and fugitive emissions of lead must be reduced to assure that lead concentrations in ambient air beyond the facility fenceline are acceptable—that is, do not exceed the lead NAAQS (the measure of risk acceptability for exposure to air-borne lead in this rule). The fact that maximum individual cancer risks due to actual emissions are above 1 in a million also contributes to our determination of unacceptability, but to a lesser extent. While the estimated maximum individual cancer risks due to actual emissions would, by themselves, not generally lead us to a determination that risks are unacceptable, the fact that they occur along with the exceedences of the lead primary NAAQS adds to our concern about these exposures, and further supports our proposed determination that risks are unacceptable. To provide acceptable levels of risk with an ample margin of safety, we are finalizing the requirement that secondary lead smelting facilities must operate the following fugitive dust emissions sources within total enclosures that must be maintained at negative pressure at all times and vented to a control device designed to capture lead particulate: Smelting furnaces, smelting furnace charging areas, lead taps, slag taps, molds during tapping, battery breakers, refining kettles, casting areas, dryers, material handling areas managing lead bearing materials, and areas where dust from fabric filters, sweepings, or used fabric filters are processed. As further described in Section IV.C of this preamble, based on public comments, we are not adopting the proposed alternative to demonstrate compliance by monitoring lead at or near the property boundary based on a 3-month rolling average in lieu of constructing total enclosures. (See 76 FR 29056.) We are finalizing the proposed requirement for facilities to conduct fugitive emission work practices as well as to enclose fugitive emission sources. As further described in Section IV.C of this preamble, we are also promulgating a revised list of required work practices based on a number of comments received regarding the necessity, efficacy, and safety of the work practices which the EPA proposed. We are also finalizing the proposed requirement limiting stack lead emissions to 0.2 mg/dscm as a facility-wide emissions average and limiting stack lead emissions from any single stack to 1.0 mg/dscm. After implementation of the controls required in this final rule, we estimate that there will be no one living at a census block centroid exposed to ambient concentrations above the NAAQS due to these facilities and the cancer MIR due to actual emissions will decrease from 50 in a million to 7 in a million. B. Changes to the Technology Review Performed Under CAA Section 112(d)(6) Based on the technology review under CAA section 112(d)(6), the EPA proposed to change the stack lead emission limits from 2.0 mg/dscm for any individual stack to a facility-wide, flow-weighted average emission limit of 0.20 mg/dscm with a limit of 1.0 mg/dscm applicable to any individual stack. The proposed limit was based on emissions data collected from industry, which indicated that well-performing baghouses currently used by much of the industry are capable of achieving outlet lead concentrations significantly lower than the limit of 2.0 mg/dscm adopted in the 1997 MACT standard. We have considered the public comments on this issue and are adopting the limits as proposed. Under CAA section 112(d)(6), we also proposed a fugitive emission standard requiring operation of the following process fugitive emission sources in total enclosures that are maintained under negative pressure at all times and vented to a control device: Smelting furnaces, smelting furnace charging areas, lead taps, slag taps, and molds during charging, battery breakers, refining kettles, casting areas, dryers, agglomerating furnaces and agglomerating furnace product taps, material handling areas for any lead bearing materials, and areas where dust from fabric filters, sweepings, or used fabric filters are processed. This proposed requirement was based on information collected from the industry that indicated that several operating facilities currently enclose most or all of their process fugitive emission sources, and that the ambient lead concentrations near these facilities are significantly lower than those facilities that do not have enclosures. We have considered the public comments on this issue, and have decided to adopt the requirements largely as proposed. This requirement is identical to that adopted to eliminate unacceptable risk for fugitive emissions pursuant to CAA section 112 (f)(2). However, as described in Section IV.C of this preamble, based on public comments, we are not adopting the proposed alternative to demonstrate compliance by monitoring lead at or near their property boundary based on a 3-month rolling average in lieu of constructing total enclosures. (See 76 FR 29056.) We are finalizing the proposed requirement for facilities to conduct fugitive emission work practices as well as to enclose fugitive emission sources. As further described in Section IV.C of this preamble, we are also promulgating a revised list of required work practices based on a number of comments received regarding the necessity, efficacy, and safety of the work practices which the EPA proposed. We are also finalizing the requirement limiting stack lead emissions to 0.2 mg/dscm as a facility-wide emissions average and limiting stack lead emissions from any single stack to 1.0 mg/dscm as proposed. We note that although we have adopted the same standards under both CAA sections 112(f)(2) and 112(d)(6), these standards rest on independent statutory authorities and independent rationales. Consequently, these standards remain independent and legally severable. C. Other Changes Since Proposal We received over 30 public comments on the proposed rule. After considering these comments, we are making the following additional changes to the proposal. The rationale for these and any other significant changes can be found in this preamble and in the comment response document available in the docket. 1. Stack Emission Limits • The EPA is not adopting numerical limits for THC and D/F emissions from rotary furnaces pending further data-gathering and analysis for this furnace type. • For units constructed after June 9, 1994, the EPA is adding a limit for THC and D/F for collocated blast and reverberatory furnaces when the reverberatory furnace is not operating, and is amending the D/F limits for blast furnaces for units that commenced construction after June 9, 1994. We also added a THC and D/F new source limit for blast furnaces that commence construction or reconstruction after May 19, 2011. 2. Definitions • Definitions have been added for “affected source” and “new source” to clarify when the standards for new sources would apply. • A definition of “lead-bearing material” has been added to the rule to clarify requirements for material handling area enclosures and work practices for fugitive emissions. • The definition of “material storage and handling” has been revised to exclude transfer of raw materials in enclosed containers. • The definition of “plant roadway” has been revised to exclude roadways inside total enclosures. • The definition of “process vent” has been revised to specify that it includes only vents from lead processing equipment and from buildings containing lead bearing material. • Definitions for “leeward,” “windward,” and “natural draft opening” have been added to the rule to clarify the differential pressure and monitoring requirements and the requirement to maintain an inward flow of air through enclosure openings. • The definition of “total enclosure” was modified by specifically including modified text from 40 CFR 265.1101 and EPA method 204 “Criteria for and Verification of a Permanent or Temporary Total Enclosure” rather than citing the reference to the requirements for a hazardous waste containment area. We also clarified the requirement for total enclosures to be vented to a control device designed to capture lead particulates. 3. Enclosure Requirements • The proposed requirement to maintain an in-draft velocity of 300 feet per minute at enclosure openings (see 76 FR 29072) was replaced with a requirement to maintain an inward flow of air through all natural draft openings. • The proposed requirement for a back-up power source for the differential pressure monitors required for the total enclosures (see 76 FR 29077) was eliminated, and a reporting requirement was added to identify periods when the power was lost to the monitoring system. • The proposed rule (see 76 FR 29072) has been modified to clarify that activities required for inspection of fabric filters and maintenance of filters that are in need of removal and replacement are not required to be conducted inside of total enclosures. • Lead ingot product handling, storm water and wastewater treatment, intact battery storage areas, and clean battery casing plastic handling activities are not subject to the total enclosure requirement. 4. Fugitive Emission Work Practice Requirements • The proposed maintenance requirements (see 76 FR 29073) have been modified to allow emergency repairs of ductwork or structure leaks to occur outside of enclosures if the time to construct a temporary enclosure would exceed the time to make a temporary or permanent repair. The proposed rule has been modified to extend the deadline for required maintenance and repair on total enclosures to one week after identification of any gaps, breaks, separations, leak points or other possible routes for emissions of lead to the atmosphere. The final rule also clarifies that once an item that is not otherwise subject to total enclosure requirements has been cleaned, its maintenance is no longer subject to the enclosure requirement. • The proposed rule has been edited to allow for existing control devices to treat the ventilation from temporary enclosures constructed for maintenance purposes if the device and its permit account for increased airflow and emissions for this activity. • The roof washing proposed work practice (see 76 FR 29073) has been removed from the list of required fugitive emission work practices. • The specific proposed water application rate of 0.48 gallons per square yard (see 76 FR 29073) has been removed from the road washing requirement. • The proposed battery storage area inspection frequency (see 76 FR 29073) has been changed from twice per day to once per week to maintain consistency with inspection frequency required under other regulatory programs. • The proposed requirement to collect wash water in a container that is not open to the atmosphere (see 76 FR 29073) has been removed. • The proposed rule (see 76 FR 29073) has been revised to clarify that lead-bearing dust must be collected and transported within closed conveyor systems or in sealed, lead-proof containers while other lead bearing material must be contained and covered in a manner that prevents spillage or dust formation. • The proposed requirement for cleaning after an accidental release (see 76 FR 29073) has been clarified to include only those releases that exceed the CERCLA reportable quantity for lead ( e.g., 10 pounds). 5. Testing and Monitoring Requirements • The performance testing requirements (see 76 FR 29074) have been modified to allow facilities to use EPA Method 12 or Method 29 for lead compounds. • A provision was added allowing for biannual testing of lead compounds and THC for sources that demonstrate concentrations that are less than 50 percent of the applicable limit. • An exemption was provided for THC testing if a facility has installed and is using a THC CEMS. • The time between D/F testing (see 76 FR 29072) was changed from once every 5 years to once every 6 years, in anticipation that most facilities would be on a biannual testing schedule for lead and THC, and this schedule would allow coordination of the two required tests. • The conditions for the performance tests (see 76 FR 29072) were changed from “under such conditions as the Administrator specifies * * *” to “maximum representative operating conditions for the process”. • The EPA also added a provision stating that sources which operate a HEPA filter or WESP system downstream of a primary particulate (lead) control device are not subject to a bag leak detection system (BLDS) requirement. 6. Other Changes • A provision was added for sources to develop procedures to minimize emissions of THC limits during periods of startup and shutdown. • We modified the proposed plastic separation work practice requirement (see 76 FR 29072) to include only plastic battery casing materials from automotive batteries (which comprise the vast majority of input plastics). • The proposed recordkeeping and reporting requirements were revised to be consistent with the other changes made to the rule. A tracked changes version of the regulatory language incorporating the changes in this action is available in the docket. Additionally, a summary of the public comments that are not in the preamble can be found in the comment response document available in the docket. V. Summary of Significant Comments and Responses A. Use of Lead Primary NAAQS as a Measure of Acceptability of Risk for Public Health Commenters from both the environmental and industry sectors challenged the EPA's use of the lead primary NAAQS as a measure of acceptability of risk in this rule. The EPA disagrees with these comments. The EPA has reasonably applied the lead primary NAAQS as a measure of evaluating acceptability or unacceptability of risk from exposure to lead emissions from sources in this category. The lead primary NAAQS targets protection to children living near sources, such as secondary lead smelters, who are exposed at the level of the standard—the population most sensitive to the health impacts of these emissions. Moreover, using the lead primary NAAQS to assess acceptability of risk does not amount to an impermissible implementation of the lead primary NAAQS as industry commenters would have it. Full responses to these comments are found in the Response to Comment Document for this rulemaking, available in docket ID EPA-HQ-OAR-2011-0344. B. Total Enclosure Requirements Comment: Several commenters supported a requirement for total enclosures of enumerated sources of fugitive emissions. Some of those commenters did not support the alternative that would have allowed ambient monitoring in lieu of total enclosures. According to one commenter, “The purpose of establishing emission standards and control technology regulations is to reduce, by empirically proven technical means, the release of hazardous air pollutants into the atmosphere.” The commenter therefore recommended that the EPA require enclosures in all instances to limit fugitive emissions. According to another commenter, “The non-cancer and cancer risk reductions associated with total enclosures of all lead bearing processes to reduce fugitive emissions are clearly demonstrated for all facilities in the post control scenario contained in the residual risk assessment. These benefits also have been observed based on our experience with total enclosures that are under negative pressure and vented to air pollution controls. * * * The annual geometric mean of lead measured [in ambient air near the facility] dropped from a high of 0.71 μg/m 3 (1987) to 0.06 μg/m 3 (1993) after all of the point source and fugitive emission controls were in place. The benefits of requiring total enclosures as demonstrated by the ambient monitoring results were clearly apparent to the Department and surrounding community. Based on that experience, we do not support the alternative of allowing partial enclosures with an air monitoring requirement option in this rulemaking.” Another commenter stated “We do not support allowing partial enclosures with an air monitoring requirement option, since the total enclosures have been shown to be extremely effective in reducing fugitive emissions of lead and the other metal HAPs from these sources.” One commenter indicated that neither proposed alternative (total enclosure or the ambient monitoring alternative) complies with CAA section 112(d)(6) but did state that “additional health risk reductions would occur if a facility used total enclosure.” This commenter also stated that the EPA should require total enclosures and work practice standards beyond those included in the proposed rule to control fugitive dust emissions of arsenic and cadmium and achieve reductions in cancer and non-cancer risks from these pollutants. Alternatively, one commenter disagreed that total enclosure is the most effective method to reduce emissions. According to the commenter, “Capturing emissions from secondary lead smelting sources at the point of emission and controlling such emissions through the use of baghouses equipped with secondary HEPA filtration systems represents a better alternative to constructing and maintaining total enclosures around secondary lead smelting sources.” Response: As explained at 76 FR 29059 in the proposed rule and below, the EPA is amending the NESHAP for fugitive emissions of lead both because these emissions pose an unacceptable risk under CAA section 112(f) and because it is technically appropriate and necessary to do so pursuant to section 112(d)(6). With respect to what changes to adopt, we agree with those commenters who argued that total enclosures maintained under negative pressure are the most effective means by which to reduce fugitive emissions. Facilities in this source category that implement total enclosures as a means of controlling fugitive emissions are able to achieve significantly lower ambient lead concentrations near the boundaries of their facilities, as clearly demonstrated in the Summary of Ambient Lead Monitoring Data Around Secondary Lead Smelting Facilities document available in docket ID EPA-HQ-OAR-2011-0344. About half of the existing facilities currently have such full enclosures, and a few other facilities are currently constructing such enclosures. The prevalence of total enclosures in the secondary lead smelting source category suggests that this measure is cost effective and it is clearly technically feasible. There is more certainty that fugitive emissions are well controlled through the use of total enclosures than would exist with the proposed alternative to use fenceline ambient monitoring. The work practice standards in the final rule have been revised from those proposed to ensure that there are no requirements that pose safety hazards, are unnecessary to achieve emission reductions, or result in duplicative burden on regulated facilities. The work practice standards in the final rule are already implemented at some of the facilities. Furthermore, we assumed at proposal that total enclosures would be required at all facilities regardless of which option they chose. The facilities that do not operate total enclosures are unlikely to achieve fenceline ambient concentrations at or below the lead primary NAAQS. The monitoring data just mentioned and the ICR responses indicated that the facilities which have totally enclosed their processes are generally achieving ambient concentrations substantially lower than those which have not totally enclosed. Since we based our analysis at proposal on the assumption that all facilities would have to construct total enclosures and assumed that the rule would impose those costs on all sources which have not yet installed total enclosures, our cost analysis has already accounted for the cost of total enclosure. See 76 FR at 29064 and the cost impacts memo that supported the proposed rule (docket ID EPA-HQ-OAR-2011-0344-0040 at page 8). The total enclosure requirements in section 63.544 ensure that process fugitive emissions sources and other fugitive dust emissions sources will not generate fugitive emissions that escape the facility uncontrolled. The work practice standards for process fugitive emissions sources and fugitive dust emissions sources in section 63.545 ensure that fugitive dust is not generated outside of total enclosures and that fugitive dust generated inside total enclosures is not carried outside of those enclosures. We note that one commenter's statements appear to pertain to process fugitive emissions from secondary lead smelters that are captured by enclosure hoods and vented to a control device. We agree that enclosure hoods near sources of process fugitive emissions ( e.g., lead taps, charging hoppers, etc.) can be an effective method to control emissions from these sources. We also recognize that these devices are important to minimize exposure of workers to lead dust. However, we note that the enclosure hoods are not 100 percent effective at controlling these emissions, and that process fugitives that are amenable to control with hoods are not the only source of fugitive emissions from secondary lead processes. We thus disagree that enclosure hoods without total enclosures represent a better alternative for controlling all fugitive emissions. Comment: Several commenters objected to requiring monitoring of both building pressure differential and the in-draft velocity at building openings for the total enclosures and stated that the duplicate monitoring requirements are redundant and unjustified. The commenters also requested that the EPA abandon its proposed specific minimum velocity requirement at doorway openings or lower the proposed requirement of 300 feet per minute. Two commenters stated that “A number of the existing total enclosures in this industry do not meet the proposed 300 feet per minute in-draft velocity requirement, and their modification to achieve 300 feet per minute would require substantial expenditures.” One commenter stated that much larger volumes of air would be exhausted from the smelter buildings and that “the greater the volume of air exhausted, the greater the emissions of lead. Therefore increasing exhaust volumes above current levels could possibly have negative impacts.” The commenters requested an exemption from demonstration of compliance with the in-draft requirements for access points that are normally closed. One commenter requested clarification of the use of the terms “leeward” and “windward” in the context of the differential pressure monitoring. One commenter stated that they have demonstrated that none of these total enclosure monitoring requirements and continuous monitoring systems are necessary to reduce actual emissions of HAP. The commenter recommended continued compliance with the original 1997 NESHAP, which requires facilities to demonstrate that total enclosures were maintained under constant negative pressure by maintaining process enclosure hoods at the prescribed face velocities. As an alternative, measurements of face velocity at doorways and windows and pressure measurements at prescribed intervals would provide a viable monitoring option. Response: We agree with the commenters that monitoring of both building differential pressure and in-draft velocity at building openings is unnecessary. However, we disagree that continuous monitoring of differential pressure is overly prescriptive. We believe that monitoring of building differential pressure is the most accurate means by which to ensure that the building is under negative pressure at all times. This method provides direct measurements that the building is indeed maintained at negative pressure. Some commenters stated persuasively that specifying doorway velocities could require substantial additional in-draft, which could cause strain to building structures, wind chill problems for workers, and pilot lights being extinguished. We have therefore not adopted the proposed requirement to measure in-draft velocity at the openings of the total enclosures but have retained the continuous differential pressure monitoring requirement. However, we have altered the differential pressure requirement from 0.02 mm of mercury to 0.013 mm of mercury to be consistent with EPA Method 204's criteria for verification of a permanent or temporary total enclosure. With regard to the comment that increased volumes of air exhausted through control devices would increase overall emissions, it is unclear to us how directing previously uncontrolled fugitive emissions through a fabric filter would increase the overall emissions from a structure. Comment: Several commenters objected to requiring a back-up power source for the differential pressure monitors. According to the commenters, during a power outage, the “negative pressure would not be maintained and the pressure drop monitors would simply be measuring and documenting this known and predictable fact * * *. The same information could be obtained by requiring facilities to note periods when power has been lost to the ventilation fans such that negative pressure could not be maintained.” One commenter recommended requiring an uninterruptible power supply for the control device as well as the total enclosure monitoring system or removing the current requirement. Response: We agree with the commenters' assessment that a back-up power source for the building differential pressure monitors is not needed. We also agree with the commenters' suggestion to include a recordkeeping provision for power outages that occur for the building ventilation systems. The regulatory text has been edited accordingly. Comment: Several commenters objected to the enclosure requirement at all areas where fabric filters are handled or processed. One commenter stated that “This is impractical in that all baghouses are not and cannot be located within enclosures. Therefore, in the replacement of used bag filters, there will always be a point in which the bags must be handled in order to get them into a closed container for transport.” Two commenters stated that “The first point at which used fabric filters are `handled' is upon removal from the baghouse cell, usually on a catwalk running along the side of the baghouse. It is not appropriate to require all such areas to be placed within total enclosures. Best practices in the industry when replacing fabric filters are to place the used filter bags in sealed plastic bags or other closed containers in the cell while the filters are being replaced, but prior to removing the used filters to the catwalk.” Response: We agree that the proposed requirement to enclose all areas where fabric filters are handled or processed may be impractical at times, the enclosure of a catwalk being an example. We also agree that fabric filters cannot be enclosed under the circumstances described in these comments. We have therefore revised the regulatory text to require used fabric filters to be placed in sealed plastic bags or containers before removal from the baghouse cell. C. Work Practice Standard Requirements for Fugitive Emissions Comment: Several industry respondents expressed concern about the proposed requirement to perform all maintenance activities for any equipment potentially contaminated with lead bearing material inside an enclosure. Two commenters requested clarification that once an item that is not already subject to total enclosure requirements has been cleaned, its maintenance or repair is not subject to the enclosure requirements. Both commenters also gave an example of circumstances where the best course of action would be to make an immediate repair on a leak in an elevated duct rather than wait until a temporary structure was constructed. One commenter expressed concern that inspection and maintenance of filters that are in need of removal and replacement would need to be performed within a total enclosure. Two commenters stated that 72 hours to make repairs to any gaps or leak points in enclosures or structures was not feasible to implement. One commenter suggested that the rule “be changed to require initiation of repairs within 24 hours of discovery and completion of repairs as soon as practicable. Rather than seeking and obtaining approval for extensions from the Administrator, the source should be required to file and to keep a record listing when the problem was discovered, when the repair was initiated and when the repair was completed.” Another commenter stated that “the presence of leak points is irrelevant to collection as long as the size and location of these leak points does not change over time. Once a facility documents that any total enclosure criteria (for negative pressure) are met, the presence of existing leak points is irrelevant.” One commenter requested that the EPA allow facilities to route emissions from partial or temporary enclosures to control devices that meet the performance requirements stated in the rule. According to the commenter, “This compliance option is requested, because as written, the provisions would require manufacturer's specification alone and not allow use of an otherwise compliant control device.” Response: With regard to the comment that the proposed maintenance practices were overly prescriptive, we have revised the regulatory text to require performance of maintenance “in a manner that minimizes emissions of fugitive dust” that includes several options to control fugitive emissions. With regard to the comment pertaining to inspection and maintenance of fabric filters, we have edited the regulatory text such that this enclosure requirement does not apply to inspection and maintenance practices for fabric filters. We also agree with commenters that making prompt and timely repairs for leaks is often more effective than first constructing a total enclosure around the leak. However, we believe that the formulation to initiate repairs “as soon as practicable” is too vague. We have edited the regulatory text to require completion of repairs to enclosures within one week and inserted language allowing facilities to initiate immediate repairs of ductwork or structure leaks without an enclosure provided that the time necessary to construct a temporary enclosure would exceed the time necessary to make a temporary or permanent repair. This change ensures that the requirement is technically practicable and the most cost-effective means for fixing leaks while minimizing the period during which the leak causes emissions. We disagree with the commenter that the presence of a leak point is irrelevant to collection as long as the size and location of these leak points do not change over time. Total enclosures are designed with openings of specific size and location to provide appropriate airflow into a building and to maintain the negative pressure at all locations. Multiple leak points at different locations of non-uniform size would be difficult to measure and document. It would also be difficult to ensure that the building negative pressure is uniform at all locations. We agree with the commenter that facilities should be allowed to route emissions from partial temporary enclosures to existing control devices that meet the performance specification stated in the rule provided the control device has the capability to accommodate the additional air flow and that its permit accounts for the additional air flow and emissions. The regulatory text has been edited accordingly. Comment: Several commenters expressed concerns about the requirement in the proposed rule for cleaning of building rooftops. The commenters stated that the EPA did not provide a basis to demonstrate that roof washing is effective or necessary. One commenter stated that roof cleaning was unnecessary to operate in compliance with the current lead NAAQS, and that current work practices are sufficient to meet the standard. Several commenters also stated that roof cleaning is potentially dangerous to workers and in some cases not possible due to the rooftop construction and weather conditions. Several commenters noted that the requirement unnecessarily applied at all times, even when natural precipitation makes cleaning unnecessary. Response: We agree that the proposed roof washing requirement may not be feasible and may cause worker safety hazards in some cases, and we have therefore removed this activity from the list of required fugitive emission work practices. Comment: Several commenters opposed the specific requirement for a mobile vacuum sweeper used for pavement cleaning when a water flush is used. The commenters stated that the EPA provides no justification for the minimum water application rate of 0.48 gallons per square yard of pavement cleaned or evidence that equipment currently used could achieve this rate. The commenters suggested that this specific requirement be replaced with a “requirement that pavement be periodically cleaned, leaving methods, and minimum water application rates to individual facilities and, as relevant, their permitting authorities.” According to the commenter, “EPA should further exempt pavement cleaning on days when natural precipitation makes cleaning unnecessary or when sand or a similar material has been spread on plant roadways to provide traction on ice or snow.” Two commenters also expressed concerns that the rule requires pavement cleaning in the battery breaking, furnace, refining and casting areas when a total enclosure is not used. According to the commenters, certain locations within these areas are not capable of being cleaned on a routine basis due to safety, access, or other reasons. The commenters give an example of paved areas under process equipment as being an area that is not safe to access during operation of the equipment. One commenter also stated that roadway cleaning and washing of truck tires and undercarriages are redundant requirements with no incremental benefit. Response: We agree with the commenters' suggestion to remove the minimum water application rate requirement from the regulatory text. We note that the proposal did include an exemption for cleaning on days when natural precipitation makes cleaning unnecessary or when sand or a similar material has been spread on plant roadways to provide traction on ice or snow. That exemption remains in the final rule. See 40 CFR 63.545(c)(2). With regard to the comments regarding pavement cleaning requirements when total enclosures are not used, we note that the final rule requires total enclosures rather than including them as an option. Furthermore, it is our understanding that in the cases where mobile sweeping or wet washing equipment is not feasible ( e.g., underneath process equipment), facilities can utilize hand held vacuum equipment to clean these areas. Therefore, we do not believe it is appropriate to exempt these areas from the cleaning requirements since these areas contain fugitive lead which can be emitted and reach human and environmental receptors. We disagree with the commenter that roadway cleaning and undercarriage washing are redundant requirements. While truck tires may be a significant source of lead bearing material on the roadway, we understand that they are not the only source. Therefore, we have maintained both requirements in the final rule. Comment: One commenter recommended modifying the requirement to pave “all areas subject to vehicle traffic” to “all areas subject to routine vehicle traffic.” The commenter noted that areas not subject to routine traffic do not have the potential to generate significant quantities of fugitive dust and that paving these areas would increase the amount of storm water generated. Response: We agree with the commenter that there may be some instances where paving and cleaning a roadway is impractical. We have included an exemption in the rule for limited access and limited use roadways that access remote, infrequently used locations on the facility's property. See 40 CFR 63.545(c)(2). Comment: Two commenters objected to the proposed frequency of inspection of the unenclosed battery storage areas. One commenter “finds this requirement to impose an administrative burden of minimal value.” According to the commenter, “Spent lead acid batteries, even if accidentally broken and leaking, pose minimal potential for generation of fugitive dust containing HAPs. Inspection of these areas is typically required on a weekly basis as part of the facilities' Resource Conservation and Recovery Act obligations and such frequency is sufficient to satisfy the intent of this proposed rule as well.” One commenter suggests that identifying and mitigating leaks within 72 hours will prevent generation of fugitive lead emissions. The commenter also states that it is unclear whether batteries stored in partial enclosures are exempted from the twice daily inspection requirement and proposes the following regulatory language incorporating both of these issues. You must inspect any batteries that are not stored in a partial or total enclosure once each day and move any broken batteries to a partial or total enclosure within 72 hours of detection. You must also clean residue from broken batteries within 72 hours of identification. Storage of batteries in trucks and railcars consistent with Department of Transportation requirements are specifically exempted from these requirements. Response: We agree with the commenters that requiring inspection of these areas on a twice daily basis is not necessary. We have modified the regulatory text to require inspection of these areas once per week—consistent with requirements implementing the hazardous waste subtitle of RCRA (see 40 CFR 264.174 and 264.1101(c)(4) (and the EPA sees no reason to deviate from these long-standing requirements here, given that they were adopted to be “protective of human health and the environment” from management of hazardous waste)—with removal of broken batteries within 72 hours of detection. We have also clarified that the inspection requirement does not apply to battery storage areas that are in a total enclosure. We do not believe that an exemption for storage of batteries in trucks and railcars is necessary since the inspection frequency was reduced to once per week. Comment: One commenter objected to the requirement to collect wash water in a container that is not open to the atmosphere. The commenter stated that “Covering of these collection tanks is not necessary because lead dissolved and/or suspended in water does not have a pathway for becoming a fugitive emission.” Response: We agree with the commenter that so long as the contents in the container are wet, there should be no fugitive emissions. We have removed the requirement to collect wash water in a sealed container. Comment: Two commenters requested changes to the requirement to transport lead bearing materials in sealed leak-proof containers. One commenter proposed that containers be “covered” rather than “sealed leak-proof” and that an exemption be made for off-road dump trucks. The suggestion was made because “sealed leak-proof containers * * * cannot be attained, but covers can be for most trucks used in such transport * * *. no approved sealing covers are made for the 30-ton, 6-wheel, off-road dump trucks used at the facility.” One commenter supported the requirement for transporting lead bearing materials within an enclosure or in a sealed container, but suggested that lead bearing materials with little potential for production of fugitive lead dust from transportation should be excluded, including intact batteries, raw materials with lead content that is not considered recoverable such as iron, caustic, coal, wood, sulfur and other similar materials, and products from the recycling process. Response: We agree that the proposed requirement for material transport should be modified. The intent of the proposed requirement was to prevent fugitive lead dust formation outside of a total enclosure. We have therefore modified the requirement at 63.545(c)(7) to read as follows: “You must transport all lead bearing dust within closed conveyor systems or in sealed, leak-proof containers, unless the transport activities are contained within an enclosure. All other lead bearing material must be contained and covered for transport outside of a total enclosure in a manner that prevents spillage or dust formation. Intact batteries and lead ingot product are exempt from the requirement to be covered for transport.” The definition of lead bearing material in the rule clarifies that lead bearing materials must contain at least 100 ppm of lead (measured via Toxicity Characteristic Leaching Procedure (EPA Method 1311) lead test results <5 mg/l). Intact batteries and lead ingot product are excluded from this requirement. Comment: Some commenters agreed that the secondary lead facilities operate a separation process at their battery breakers to separate polypropylene battery case material as a valuable recyclable commodity. However, not all spent lead acid batteries are amenable to separation. Certain battery types such as small sealed-lead-acid batteries and certain industrial lead-acid batteries are fed into the blast furnace without ever passing through the facility's battery breaker. These batteries are either too small or too large to be broken by the automated battery breaking equipment. One commenter requested that the EPA estimate the cost of the systems that would be required. Another commenter offered that mandatory separation could be used for facilities that are not meeting TEQ limits as one of several options to reduce emissions. Two commenters stated that the current dioxin emission levels pose no incremental health risk presented by background dioxin and that there is no valid justification for imposing this burden. Response: Based on these comments, we have revised the proposed plastics separation work practice requirement to be specific to automotive batteries, which should be amenable to separation based on current practices used in the industry. We agree with the commenters that some industrial batteries are not easily processed in battery breakers and that the retrofits or additional equipment required to process such batteries are not justified since automotive batteries make up the vast majority of lead acid batteries processed at these facilities. We believe that plastics separation from automotive batteries is sufficient to minimize emissions of organic HAP. We further note that the use of battery breakers to separate plastics from automotive batteries is clearly a development in practices that limits emissions of organic HAP, including dioxin, and is therefore an appropriate part of a standard under CAA section 112(d)(6). D. Emission Standards for Organic HAP From Rotary Furnaces Comment: We received several comments on the proposed D/F and THC MACT floor limits for the rotary furnace subcategory that were based on data (two test runs, see 76 FR at 29049) from the slag-processing rotary furnace at RSR's Middletown, NY facility. One commenter stated that rotary furnace standards should not be based on emissions that are not from stand-alone rotary furnace operations. The commenter stated that the EPA should not derive standards for rotary furnaces from performance of a different source type or subcategory that includes a furnace combination ( i.e., reverberatory/short rotary furnace). The commenter also contends that there are insufficient data available to establish limits for D/F and THC from rotary furnaces. The commenter contends that the EPA used one source that is not representative of or similar to true rotary furnace operation to establish the limits for “rotary furnaces.” The commenter stated that the emissions limit established in the proposed rule is arbitrary because it is not based on operations of rotary furnaces using lead bearing materials from lead acid batteries as feedstock. The commenter notes that RSR's Middletown, NY facility, whose test data were used as the basis for the THC and D/F limits, only uses their rotary furnace to process one type of lead bearing material, reverberatory slag, and this furnace is not representative of the full capabilities of rotary furnace operation. The commenter notes that JCI's Florence Recycling Center plans to utilize stand-alone rotary furnaces to process lead paste, battery components, and “other materials with recoverable quantities of lead.” The commenter further notes that the emissions from RSR's short rotary furnace (SRF) and drying kiln are combined, and it is unclear from information in the docket whether testing of the SRF occurred at a location prior to the combination of these exhaust streams. The commenter also stated that JCI and RSR differ in raw materials used in the facilities' operations. RSR's Title V application for its Middletown facility indicates that RSR may process automotive, industrial, and specialty-type lead-acid batteries as well as lead bearing materials received from lead-acid battery manufacturing plants and scrap metal in its reverberatory furnace. JCI's furnace feed is from automotive and marine batteries and from lead bearing materials from other JCI facilities. The commenter contends that, since the EPA considered no data representative of a rotary furnace operation such as that which will be operated at the JCI Florence Recycling Center, a numeric limit for this category cannot be assigned. One commenter also stated that the stack test for RSR's SRF that was used to develop D/F and THC emission limits for “rotary furnaces” included only two successful test runs and therefore must be considered inadequate for setting emission limits since 40 CFR 63.7(e)(3) requires three test runs for compliance demonstration purposes. One commenter supports the individual stack emission limits for THC and D/F but provides comment on the EPA's consideration of statistical variability for the rotary furnace subcategory. The commenter stated that the Upper Prediction Limit (UPL) tends to inflate the variability because the statistical procedure attempts to accommodate the highest emission measurement at the same facility and not necessarily the variability between facilities as the MACT floor is intended to achieve. Additionally, the UPL is very dependent on the number of valid samples. The commenter contends that, when a suitable number of samples have been collected, the 99 percent confidence limit (CL) represents a range for which there is 99 percent certainty that the interval contains the true mean. The commenter suggests that caution be used when determining a MACT floor from limited test data and that the 99 percent CL is more appropriate for this particular industry. One commenter noted that the EPA did not consider a secondary lead smelting facility in Puerto Rico that operates a stand-alone rotary furnace. The commenter contends that even if it were appropriate to set MACT floor emission rates or standards for rotary furnaces, the EPA would have to obtain and consider data from the Puerto Rico facility. According to the commenter, failure to consider data from the facility “undermines the RTR Proposed Rule and any attempt by EPA to establish emission standards for the rotary furnace subcategory.” The commenter contends that the EPA should issue a separate ICR for the Puerto Rico facility and publish a supplemental notice of proposed rulemaking that takes into account the emission information for this facility. Response: The EPA agrees that rotary furnaces fueled by natural gas could be different from rotary furnaces operating using different fuel types, and that rotary furnaces processing slag could be different types of rotary furnaces than those processing lead acid batteries. More basically, the EPA simply has insufficient data on which to promulgate organic HAP standards for rotary furnaces. The proposed standards for THC and D/F were based on less than one single complete test, consisting only of two test runs from the natural gas fueled rotary furnace processing slag. See 76 FR at 29049-29050. (A complete test consists of three test runs.) When calculating variability using a limited dataset (in this case, the two test runs) the effect of variability can be substantial. Id. The proposed THC and D/F standards likewise were based on two test runs and similarly reflected enormous statistical variability due to the limited data. Id. at 29049/1. The EPA does not believe that these data are sufficient to adopt a standard even for the rotary furnace which was tested, much less a rotary furnace which may be different. Accordingly, we are not adopting standards for organic HAP emissions from rotary furnaces at this time and instead we intend to issue CAA section 114 information requests to sources operating rotary furnaces to obtain more representative emission data and plan to propose standards for organic HAP in a future action. However, we note that the lead emission standards included in this action do apply to rotary furnaces processing slag or lead acid batteries. E. The EPA's Risk Assessment Supporting the Proposed Rule Comment: Two commenters stated that the EPA's methodology is unreliable and incorrect. The commenters stated that the EPA overestimated the baseline fugitive emissions for the Exide Frisco facility whose (faulty) estimates then became the basis for estimating all other facilities' fugitive emission rates. The commenter stated that the EPA scaled Exide's reported fugitive emissions of 0.296 tpy for the blast and reverberatory furnace fugitive emissions to 0.32 tpy based on the assumption that fugitives would not be on the same operating schedule as process emissions. The commenter contends that this scaling is inappropriate since furnace fugitives can only occur when the associated process furnaces are operating. The commenter further stated that the EPA also double-counted the fugitives of 0.32 tpy by assigning the value to each of the blast and reverberatory furnaces, despite the fact that Exide reported the value as combined emissions for both the reverberatory and blast furnace. Response: The commenter is correct in both respects. The EPA has accordingly adjusted its calculation of the fugitive emissions from Exide's Frisco facility (thereby reducing the facility's fugitive dust emissions estimate) and adjusted the emissions estimates for each facility to reflect the revised estimate of the Frisco facility. The resulting risk results have also been adjusted. We note that the updated emissions estimates and risk results did not substantively alter our decisions under section 112(f). The modeling showed 9 of 15 facilities above the lead NAAQS, down from 12 of 14 facilities at proposal. The maximum modeled lead concentration in the source category decreased from about 23 times the NAAQS to about 16 times the NAAQS. We still find that risks from this source category are not acceptable and that revisions under section 112(f)(2) are therefore required, and further find that it is necessary under section 112(d)(6) to revise the standards for fugitive emissions considering the developments in cost-effective control technologies for their control. Comment: Three commenters stated that the EPA's multipathway risk estimates are incorrect because they relied on incorrect dioxin and furan emissions from Exide's Frisco, Texas facility. The commenters contend that a dioxin and furan test conducted in October 2010 at the Frisco facility revealed an emissions rate of 6.2E-08 tons/year on a toxic equivalency quotient (TEQ) basis, 69 times lower than the estimate used by the EPA. One commenter noted that the exact effect that the difference in emissions would have on the calculated risks is unknown since the EPA has not placed the full methodology behind its multipathway risk calculations in the record. However, the commenter noted that assuming the relationship between emissions and risk is approximately linear, the EPA's calculated risk would be approximately 69 times lower than that estimated at proposal and less than 1 in a million. The commenter further requested that the EPA disclose its multipathway risk calculation methodology and allow for public notice-and-comment. Another commenter stated that the EPA's overestimation of dioxin and furan emissions may lead to unwarranted public concern about the Frisco facility. The commenter requested that the EPA include a clarifying explanation regarding the Frisco emissions data and the lower multipathway risk in the final rule as well as in the risk assessment document. Response: As noted in previous responses, the final risk assessment reflects updated emission information received during the public comment period for the proposed rule. We also note that the updated dioxin/furan test data were not made available to the EPA, despite repeated requests, until June 2011. With respect to the estimated emissions of D/F, the commenter is correct that EPA overestimated these emissions at proposal by a factor of 69 for the reasons stated. Considering this updated emissions information, the EPA estimates that multipathway risk associated with the Exide Frisco facility is less than 1 in a million (and so contributes very little to the estimates of risk posed by this source category, and is not a driver of the determination that risks from this source category are unacceptable). See Residual Risk Assessment for the Secondary Lead Smelting Source Category, available in the docket, at pages 32-33. This additional information does not warrant any reopening of the proposed rule or comment period, however. First, the EPA fully disclosed its multipathway risk methodology; the commenter's assertions to the contrary are simply mistaken. Thus, the risk assessment document along with its appendices was available in the docket for the proposed rulemaking and describes in detail the methodology used in the assessment. See the Residual Risk Assessment for the Secondary Lead Smelting Source Category, at page 10, available in the docket. Also see docket ID EPA-HQ-OAR-2011-0344-0037 for a thorough discussion of the EPA's human health multipathway risk assessment methodology. Second, the new information reinforces the tentative conclusion the EPA reached at proposal: risks associated with emissions of dioxin and furans from the secondary lead source category are not primary drivers in the unacceptable risks from this source category ( i.e. dioxin and furan emissions are not the reason that risks from secondary lead smelter emissions are unacceptable). See 76 FR at 29055/2. The new analysis reinforces that risks posed by dioxin and furan emissions are acceptable, since emission levels are 69 times less than estimated at proposal (when risks from CDD and CDFs were already considered to be at an acceptable level). Thus, this already acceptable level of risk is less than estimated and less than one in a million. The EPA does not agree that further comment on this issue is warranted, since further comment would not have a practical effect on the rule. 7 7 The comment that EPA's standards for dioxin and furans do not result in significant risk reduction is misplaced given that the EPA is not adopting any risk-based ( i.e., section 112(f)(2)) standards based on the need for reduction of emissions of dioxin and furan. Comment: One commenter stated that the EPA inappropriately summed risks from the inhalation and multipathway risk assessments at the Exide Frisco facility. The commenter noted that it is impossible for the person with the highest chronic inhalation cancer risk to also be the same person with the highest individual multipathway cancer risk since the two MIR values are location dependent and are at locations that are widely separated. The commenter further noted that the EPA has indicated in other contexts that when populations are exposed via more than one pathway, the combination of exposures across pathways must also represent a reasonable maximum exposure. Response: The EPA disagrees with the commenter. While highly unlikely (and noted as being highly unlikely in the risk assessment document), it is theoretically possible for the person with the highest chronic inhalation cancer risk to also be the same person with the highest individual multipathway cancer risk. The EPA notes that the multipathway risk assessment does not provide a specific location for the MIR; thus, it is possible (although highly unlikely) that the person with the highest inhalation MIR is also consuming fish (at the fish ingestion rates described in the multipathway report) from the theoretically contaminated lake. That being said, however, we note that considering updated emissions information for this facility, updated multipathway results indicate multipathway risk associated with the Exide Frisco facility are well below one in a million. Considering these updated results, multipathway risk would not appreciable add to any inhalation risk associated with this facility. Comment: Commenter 94 stated that the EPA improperly calculated the inhalation cancer MIR for the Exide Frisco facility in a vacant field to the north of the facility within the facility's property line. The commenter noted that the lifetime cancer risk of the MEI cannot be at a location within the facility property line. Response: The commenter is correct and the EPA has corrected the receptor location resulting in a change in the results in the final risk assessment. The MIR for this facility is now located at a populated census block (based on the 2001 census). F. Miscellaneous Changes to the Regulatory Text Comment: Three commenters requested that the EPA replace the term “modified source” with “reconstructed source.” Neither the proposed rule nor the EPA's general Part 63 regulations define the term “modified source.” The term is defined in the CAA, but that definition would require a source to install maximum achievable control technology and impose a “new source” requirement like CEMS on a modified source, rather than appropriately imposing the existing source provisions that do not require installation of a CEMS. Response: The term “modified source” appeared in the proposed rule at 40 CFR 63.548(l) under the proposed requirement to install a CEMS for measuring lead emissions on all new or modified sources. We agree with the commenter that the terminology of “reconstructed” source would be more appropriate for this requirement and have changed the regulatory language accordingly. Comment: Three commenters requested clarification of the term “affected source” as used in the proposed rule. The proposed rule uses the terms “new sources”, “existing source” and “modified source” without clarifying whether it is referring to secondary lead smelters generally, or to potential emissions sources within secondary lead smelters. There is a seeming contradiction between the use of the term “affected source” in the proposed rule and the definition in 40 CFR Part 63, Subpart A general provisions. One commenter also understands that the terms “new sources” and “existing sources”, as used in the proposed rule, are consistent with the definitions as used in CAA § 112(a). The commenter “understands EPA intends to address any addition of units to an ‘existing source’ consistent with the provisions of the CAA” and understands that the analysis as explained in Nine Metal Fabrication and Finishing Area Source Categories, 40 CFR Part 63 (6X) NESHAP, Questions and Answers, April 2011 would apply with respect to implementation of any amendments to subpart X requirements. The Q&A explains that the “CAA uses the word `source' to mean the entire facility in terms of the classification of `new' vs. `existing' whereas for the Subpart 6X rule, what is referred to as the `affected source' is actually one of the processes at the facility”. Response: The EPA has clarified the application of these terms in the final rule. The definition in 40 CFR part 63, subpart A requires each relevant standard to define the “affected source,” as the collection of equipment, activities, or both within a single contiguous area and under common control that is included in a CAA section 112(c) source category or subcategory for which a section 112(d) standard or other relevant standard is established pursuant to CAA section 112 unless a different definition is warranted based on a published justification as to why this definition would result in significant administrative, practical, or implementation problems and why the different definition would resolve those problems. We have adopted a definition of “affected source” in this rulemaking as any of the listed individual sources at a secondary lead smelter. This application of the term “affected source” is the same as was used in the 1997 NESHAP for secondary lead. The term “affected source” is used in the final rule primarily in the context of new sources. This definition is appropriate for the secondary lead source category because the chief source of emissions from these facilities are the furnaces, and as these furnaces are replaced or reconstructed, the replacement equipment would be subject to the standard for a new source. A “new source” has also been defined as any affected source at a secondary lead facility that undergoes construction or reconstruction after May 19, 2011, the date of the proposed CAA section 112(f)(2) and 112(d)(6) rules. A building that is constructed for the purpose of controlling fugitive emissions from an existing source is not considered to be a new source because it is effectively a control device for fugitive emissions. Comment: One commenter noted that the last sentence in the current definition of “Materials storage and handling area” has been deleted in the proposed definition. This sentence reads: “Materials storage and handling area does not include areas used exclusively for storage of blast furnace slag.” The commenter disagreed with the EPA's assessment that this is a minor change. “EPA should provide an explanation of what changed circumstances justify a new rule.” Two other commenters requested that the definition be modified to exclude the transfer of raw materials of any type in enclosed conveyors. The commenter stated that “as currently worded, the enclosure requirement proposed would apply to handling of fabric filter dust in enclosed conveyors, containers, or in wet slurried form, which is unnecessary.” The commenter suggested revising the definition to include the following: “Material storage and handling area shall not include any closed containers or enclosed mechanical conveyors.” Response: A definition of “lead bearing material” has been added to the final rule. Rather than include or exclude any one particular material in the definition of “materials storage and handling area” based on the originating process, this definition establishes lead content as the criterion for determining whether materials must be handled in such a manner as to prevent lead dust formation. The definition of “materials storage and handling area” remains essentially unchanged from the definition in the proposed rule. Fugitive dust formation has been identified as the major contributor to ambient lead concentrations near secondary lead smelters. Piles where lead bearing materials are stored were identified as one of the major sources of fugitive lead emissions. However, there was no definition for lead-bearing material in the proposed rule that could be used to make a determination of which materials needed to be handled in a manner that prevents dust formation. By adding a definition of “lead bearing material” to the rule, we have clarified and quantified the definition of “materials storage and handling area.” The EPA is using the Toxicity Characteristic Leaching Procedure (TCLP), EPA Method 1311 to measure which materials are lead-bearing, and using the characteristic level of 5.0 mg/l (in the extract from the test) as the specific level for being lead-bearing. See 40 CFR 261.24. This assures that only materials with at least 100 ppm total lead will be considered to be `lead-bearing'. See EPA Method 1311 section 2.2 which describes that the liquid to solid ratio of material tested should be 20:1 ( i.e. 5 mg/l in the TCLP extract is equal to at least 100 ppm in the material being tested). The specific definition of lead bearing material chosen ensures that materials that contain relatively substantial amounts of lead (0.01 percent) are included while minimizing additional testing burden for facilities who must determine what does or does not meet the definition. Testing burden is minimized because facilities already use the TCLP to determine whether or not the wastes they manage are hazardous, pursuant to subtitle C of the Resource Conservation and Recovery Act. Imposing a different threshold for defining material as “lead bearing” could thus impose duplicative or conflicting requirements between subpart X and other regulatory regimes. Furthermore, the TCLP is a test protocol which includes a grinding step, which is a conservative measure of determining whether a material could generate fugitive emissions. See Method 1311 steps 7.1.3 and 7.2.10. To address the concern that fabric filter dust in enclosed conveyors, containers or wet slurries must be additionally handled only inside an enclosure, we have added an exemption from the enclosure requirement for materials that are “lead bearing” but are not expected to generate fugitive lead dust. While these materials do contain lead in amounts that could otherwise meet the definition of lead bearing material, they are either in a stabilized form that will not create fugitive dust or in a container that prevents fugitive dust formation. These materials include: lead ingot products, stormwater and wastewater, intact batteries, lead bearing material that is stored in closed containers or enclosed mechanical conveyors, and clean battery casing material. Comment: One commenter requested a change to the definition of “plant roadway” specifically to exclude finished lead product storage areas and roadways or traffic areas located within enclosed buildings. Response: We accept the commenter's suggestion to exclude roadways or traffic areas located within enclosed buildings from the definition of “plant roadway.” However, we do not believe that it is appropriate to exclude finished lead product storage areas since these areas may be located in close proximity to areas that may require cleaning ( e.g., slag storage areas). Comment: One commenter requested a change to the definition of process vent. As currently drafted, it appears overly broad and could lead to confusion concerning the ventilation systems that must be tested. Response: We have made revisions to the regulatory text to clarify that the term “process vent” includes various process vents and vents from buildings containing lead bearing material. Vents from office or other non-process areas are not considered to be process vents. Comment: Two comments were received on the terminology used for a lead CEMS. According to the commenter, “Paragraph 63.548(m) specifies that lead CEMS be `continuous emission rate monitors.' The standard is a concentration standard, not an emission rate standard, so the term “continuous emission rate monitor” is not appropriate”. Since flow and concentration monitors are needed to calculate compliance with the flow weighted average, one commenter recommended a requirement for flow and concentration monitors rather than citing a type of monitoring system that is not applicable to the standard. Response: We agree with the commenter that the term continuous emissions rate monitor is not appropriate. We have replaced the term “continuous emissions rate monitor” with “continuous emissions monitoring system.” Comment: Two commenters noted that the term “accidental release” is not defined in the rule. The commenters recommended that the EPA use the CERCLA reportable quantity threshold of 10 pounds to define an accidental release of lead-containing dust. Two commenters recommended that the requirement [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-32933. Public record. Not legal advice.