total non-mercury metal HAP and are proposing standards based on the
MACT floor. See the technical memorandum titled Development of Proposed
Standards and Impacts for the Refractory Products Manufacturing NESHAP,
located in the docket for this rule, for details regarding the
derivation of the cost and emission estimates for the beyond-the-floor
option.
2. Nonclay Refractory Products That Use Organic HAP
    For existing nonclay refractory sources, the 2002 Refractory
Products Manufacturing NESHAP proposal preamble identifies organic HAP
as the primary emissions from the manufacture of nonclay products that
include organic resin binders. The NESHAP requires control of organic
HAP with a THC limit for these sources. Sources currently employ the
use of thermal oxidizers, regenerative thermal oxidizers, and catalytic
oxidizers to meet the THC limit. However, the NESHAP does not require
sources to use natural gas as fuel for sources in this subcategory
because metal HAP emissions were determined to be below measurable
quantities due to the use of purified nonclay raw materials. Available
HAP data for these sources in the 2017 NEI were found to be outdated
and not reflective of current operating conditions. The 2017 NEI
included measurable PM emissions for these existing nonclay refractory
sources, and the PM would be expected to have trace amounts of metal
HAP; however, we have no emission stack test data to indicate
measurable emissions of metal HAP for these existing nonclay refractory
sources.\23\ Therefore, we are proposing a work practice standard to
use natural gas as fuel for existing nonclay refractory sources to
limit metal HAP emissions in lieu of a numerical emissions standard as
the MACT floor level of control in accordance with CAA section 112(h).
Because we expect HAP metals to be emitted in unmeasurable quantities
based on the purified raw materials used and we have no emission stack
test data to indicate measurable emissions of metal HAP for these
existing nonclay refractory sources, we could not identify a beyond the
floor measure that would obtain further emission reductions.
---------------------------------------------------------------------------

    \23\ Thus, while we believe that there are metal HAP emissions,
the lack of data showing measurable emissions leads the EPA to
conclude that the application of measurement methodology to this
class of sources is not practicable due to technological and
economic limitations. See CAA 112(h)(2)(B).
---------------------------------------------------------------------------

B. What are the results of the risk assessment and analyses?

    As described in section III of this preamble, for the Refractory
Products Manufacturing source category, we conducted a risk assessment
for all HAP emitted. We present results of the risk assessment briefly
below and in more detail in the Refractory Products Risk Assessment
Report, in the Docket for this action (Docket ID No. EPA-HQ-OAR-2020-
0148).
1. Chronic Inhalation Risk Assessment Results
    Table 1 below provides a summary of the results of the inhalation
risk assessment for the source category. For more detail about the
MACT-allowable emission levels, see Appendix 1 to the Refractory
Products Risk Assessment Report, in the Docket for this action.

                              Table 1--Refractory Products Manufacturing Source Category Inhalation Risk Assessment Results
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Maximum individual     Estimated population      Estimated annual         Maximum chronic         Maximum
                                            cancer risk (in 1     at increased risk of      cancer incidence       noncancer TOSHI \1\   screening acute
                                                million)             cancer >=1-in-1        (cases per year)    ------------------------   noncancer HQ
                                        ------------------------         million        ------------------------                               \2\
            Risk assessment                                     ------------------------                          Based on    Based on  ----------------
                                          Based on    Based on    Based on    Based on    Based on    Based on     actual     allowable
                                           actual     allowable    actual     allowable    actual     allowable   emissions   emissions  Based on actual
                                          emissions   emissions   emissions   emissions   emissions   emissions                             emissions
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source Category........................         0.7         0.7           0           0      0.0003      0.0003        0.04        0.04    HQREL = 0.09
Whole Facility.........................         0.7  ..........           0  ..........      0.0004  ..........        0.04  ..........  ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The target organ specific hazard index (TOSHI) is the sum of the chronic noncancer HQs for substances that affect the same target organ or organ
  system.
\2\ The maximum estimated acute exposure concentration was divided by available short-term threshold values to develop HQ values.

    The results of the inhalation risk modeling, as shown above,
indicate that the maximum individual cancer risk based on actual and
allowable emissions (lifetime) is 0.7-in-1 million (driven by trace
amounts of chromium, arsenic, nickel, and cadmium emissions from tunnel
kilns) and the total estimated annual cancer incidence (national) from
these facilities based on actual and allowable emission levels is
0.0003 excess cancer cases per year or one case every 3,333 years. The
maximum chronic noncancer TOSHI value based on actual and allowable
emissions is 0.04 (driven by HF from tunnel kilns).
2. Screening Level Acute Risk Assessment Results
    Table 1 of this preamble shows the acute risk results for the
Refractory Products Manufacturing source category. The screening
analysis for acute impacts was based on an estimate of acute emissions
developed for each emissions source using compliance test report data
and engineering calculations. The maximum screening acute noncancer HQ
value (off-facility site) is 0.09 (driven by HF). For more detailed
acute risk screening results, refer to the Refractory Products Risk
Assessment Report, in the Docket for this action.
3. Multipathway Risk Screening Results
    The emissions data for Refractory Products Manufacturing source
category indicate that five PB-HAP are emitted by sources within this
source category: Arsenic, cadmium, POM, mercury (divalent mercury and
methyl mercury), and lead. The cadmium emissions from these facilities
did not exceed the Tier 1 multipathway SV of 1 for cancer or noncancer.
The arsenic, methyl mercury, and POM emissions exceeded the Tier 1
multipathway SV of 1 for cancer. Therefore, a Tier 2 screening

assessment was conducted for arsenic, menthyl mercury and POM.
Emissions of arsenic, POM, and methyl mercury from these facilities did
not exceed the Tier 2 multipathway SV of 1 for cancer. The Tier 2
noncancer screening assessment resulted in an SV less than 1 for
mercury emissions.
    An exceedance of a screening threshold emission rate or SV in any
of the tiers cannot be equated with a risk value or an HQ (or HI).
Rather, it represents a high-end estimate of what the risk or hazard
may be. For example, an SV of 2 for a non-carcinogen can be interpreted
to mean that we are confident that the HQ would be lower than 2.
Similarly, a Tier 2 cancer SV of 5 means that we are confident that the
risk is lower than 5-in-1 million. Our confidence comes from the
conservative, or health-protective, assumptions encompassed in the
screening tiers: we choose inputs from the upper end of the range of
possible values for the influential parameters used in the screening
tiers, and we assume that the exposed individual exhibits ingestion
behavior that would lead to a high total exposure. Based upon the
results of this screening assessment no further screening or site-
specific assessments were conducted for this source category.
    In evaluating the potential for multipathway effects from emissions
of lead, modeled maximum annual-average lead concentrations were
compared to the NAAQS for lead (0.15 [micro]g/m3). Results of this
analysis confirmed that the NAAQS for lead would not be exceeded by any
facility.
4. Environmental Risk Screening Results
    As described in section III.A of this preamble, we conducted an
environmental risk screening assessment for the Refractory Products
Manufacturing source category for the following pollutants: Arsenic,
cadmium, HCl, HF, lead, mercury (divalent mercury and methyl mercury),
and POM.
    In the Tier 1 screening analysis for PB-HAP (other than lead, which
was evaluated differently), arsenic, cadmium, divalent mercury, and POM
had no Tier 1 exceedances for any ecological benchmark. Methyl mercury
emissions at one facility had a Tier 1 exceedance for the surface soil
NOAEL (avian ground insectivores) by a maximum SV of 2. A Tier 2
screening assessment was performed for methyl mercury. Methyl mercury
had no Tier 2 exceedances for any ecological benchmark.
    For lead, we did not estimate any exceedances of the secondary lead
NAAQS.
    For HCl and HF, the average modeled concentration around each
facility (i.e., the average concentration of all off-site data points
in the modeling domain) did not exceed any ecological benchmark. In
addition, each individual modeled concentration of HCl (i.e., each off-
site data point in the modeling domain) was below the ecological
benchmarks for all facilities. For HF, the maximum facility SV (based
on the average concentration of all off-site data points over the
modeling domain) was well below 1 (0.007) and the maximum area that
exceeded the ecological benchmark was only 0.002 percent of the modeled
area.
    Based on the results of the environmental risk screening analysis,
we do not expect an adverse environmental effect as a result of HAP
emissions from this source category.
5. Facility-Wide Risk Results
    As shown in Table 1 of this document, the maximum facility-wide
cancer MIR is 0.7-in-1 million, driven by chromium, arsenic, nickel,
and cadmium emissions from tunnel kilns. The total estimated cancer
incidence from the whole facility is 0.0004 excess cancer cases per
year, or one excess case in every 2,500 years. No people were estimated
to have cancer risks above 1-in-1 million from exposure to HAP emitted
from both MACT and non-MACT sources at the three facilities in this
source category. The maximum facility-wide TOSHI for the source
category is estimated to be 0.04, driven by HF emissions from tunnel
kilns.
6. What demographic groups might benefit from this regulation?
    To examine the potential for any environmental justice issues that
might be associated with the source category, we performed a
demographic analysis, which is an assessment of risks to individual
demographic groups of the populations living within 5 km and within 50
km of the facilities. In the analysis, we evaluated the distribution of
HAP-related cancer and noncancer risks from the Refractory Products
Manufacturing source category across different demographic groups
within the populations living near facilities.\24\
---------------------------------------------------------------------------

    \24\ Demographic groups included in the analysis are: White,
African American, Native American, other races and multiracial,
Hispanic or Latino, children 17 years of age and under, adults 18 to
64 years of age, adults 65 years of age and over, adults without a
high school diploma, people living below the poverty level, people
living two times the poverty level, and linguistically isolated
people.
---------------------------------------------------------------------------

    Results of the demographic analysis indicate that the minority
population is significantly lower within 5 km of the facilities than
the national percentage (18 percent versus 38 percent). This difference
is accounted for by smaller population percentages around the
facilities for all minority demographic groups. Specifically, African
American (6 percent versus 12 percent nationally), Native American (0.1
percent versus 0.8 percent nationally), Other and Multiracial (5
percent versus 7 percent nationally), and Hispanic or Latino (6 percent
versus 18 percent nationally). In addition, the percentage of the
population living within 5 km of facilities in the source category is
lower than the corresponding national percentage for the demographic
groups, ``Over 25 Without a HS Diploma'' (10 percent versus 14 percent
nationally) and ``Below the Poverty Level'' (11 percent versus 14
percent nationally). When examining the risk levels of those exposed to
emissions from Refractory Products Manufacturing facilities, we find
that no one is exposed to a cancer risk at or above 1-in-1 million or
to a chronic noncancer TOSHI greater than 1.
    The methodology and the results of the demographic analysis are
presented in a technical report titled Risk and Technology Review--
Analysis of Demographic Factors for Populations Living Near Refractory
Products Manufacturing Source Category Operations, September 2020
(hereafter referred to as the Refractory Products Manufacturing
Demographic Analysis Report), in the docket for this action.

C. What are our proposed decisions regarding risk acceptability, ample
margin of safety, and adverse environmental effect?

1. Risk Acceptability
    As noted in section III.A of this preamble, we weigh all health
risk factors in our risk acceptability determination, including the
cancer MIR, the number of persons in various cancer and noncancer risk
ranges, cancer incidence, the maximum noncancer TOSHI, the maximum
acute noncancer HQ, the extent of noncancer risks, the distribution of
cancer and noncancer risks in the exposed population, and risk
estimation uncertainties (54 FR 38044, September 14, 1989).
    For the Refractory Products Manufacturing source category, the risk
analysis indicates that cancer risk due to actual emissions or
allowable emissions is 0.7-in-1 million. The risks are considerably
less than 100-in-1 million, which is the presumptive upper limit of
acceptable risk. The risk analysis also

shows we did not identify a potential for adverse chronic noncancer
health effects. The acute noncancer risks based on actual emissions are
low at an HQ of less than 1 (based on the REL) for HF. Therefore, we
find there is little potential concern of acute noncancer health
impacts from actual emissions. In addition, the risk assessment
indicates no significant potential for multipathway health effects.
    Considering all of the health risk information and factors
discussed above, including the uncertainties discussed in section
III.C.7 of this preamble, we propose to find that the risks from the
Refractory Products Manufacturing source category are acceptable.
3. Ample Margin of Safety Analysis
    We are proposing that the risks from the Refractory Products
Manufacturing source category are acceptable. There are no individuals
in the exposed population with lifetime cancer risks above 1-in-1
million as a result of actual or allowable emissions from this
category. In addition, in our risk analysis we did not identify a
potential for adverse chronic noncancer, acute noncancer, or
multipathway health effects. Therefore, we are proposing that the
current standards provide an ample margin of safety to protect public
health.
4. Adverse Environmental Effect
    The emissions data for the Refractory Products Manufacturing source
category indicate that the following environmental HAP are emitted by
this category: Arsenic, cadmium, HCl, HF, lead, mercury (divalent
mercury and methyl mercury), and POM. The screening-level evaluation of
the potential for adverse environmental effects associated with
emissions of these environmental HAP from the Refractory Products
Manufacturing source category indicated that there are no exceedances
of Tier 2 SVs for PB-HAP, no exceedances of the average modeled
concentration around each facility (i.e., the average concentration of
all off-site data points in the modeling domain) for acid gases, and
for lead we did not estimate any exceedances of the secondary lead
NAAQS. In addition, we are unaware of any adverse environmental effects
caused by HAP emitted by this source category. Therefore, we do not
expect there to be an adverse environmental effect as a result of HAP
emissions from this source category, and taking into consideration
costs, energy, safety, and other relevant factors, we are proposing
that it is not necessary to set a more stringent standard to prevent an
adverse environmental effect.

D. What are the results and proposed decisions based on our technology
review?

    As described in section III.B of this preamble, our technology
review focused on identifying developments in practices, processes, and
control technologies for the Refractory Products source category. We
reviewed various information sources regarding emission sources that
are currently regulated by the Refractory Products Manufacturing NESHAP
to support the technology review. The information sources included the
following: The RBLC; state regulations; facility operating permits;
regulatory actions, including technology reviews promulgated for other
similar NESHAP subsequent to the Surface Coating of Metal Cans NESHAP;
and discussions with individual refractory product manufacturing
facilities.
    A brief discussion of our review of these various information
sources follows. Based on our review of facility operating permits and
discussions with individual refractory product manufacturing
facilities, we identified an advance in practice that we are proposing
under CAA section 112(d)(6) in this action.
    Our search of the RBLC database for improvements in refractory
products manufacturing technologies did not identify any new
developments in practices, processes, or control technologies for the
Refractory Products Manufacturing source category under CAA section
112(d)(6).
    We also reviewed requirements for other similar source categories.
During development of the Refractory Products Manufacturing NESHAP, we
identified two other source categories that operate kilns that are
similar in design and operation to kilns that manufacture clay
refractory products: The Clay Ceramics Manufacturing Industry and the
Brick and Structural Clay Products Manufacturing Industry. Since the
promulgation of the Refractory Products Manufacturing NESHAP, the
NESHAP for these two other source categories were vacated, and new
NESHAP for Brick and Structural Clay Products Manufacturing Industry
and NESHAP for Clay Ceramics Manufacturing Industry were promulgated on
October 26, 2015 (80 FR 65470). However, the control devices have not
changed since the promulgation of the Refractory Products Manufacturing
NESHAP. Therefore, no developments in practices, processes, and control
technologies were identified in the NESHAP for Brick and Structural
Clay Products Manufacturing Industry and NESHAP for Clay Ceramics
Manufacturing Industry that were not considered during the Refractory
Products Manufacturing NESHAP development.
    We also contacted representatives for the three major source
facilities subject to the Refractory Products Manufacturing NESHAP and
the industry trade association, The Refractories Institute, and asked
them to identify facility-specific developments in practices,
processes, and control technologies. Two of the three facilities
indicated they had not made changes in raw materials or manufacturing
practices and processes because such changes would detrimentally affect
their products. One facility had installed a wet scrubber to control
opacity/particulate matter (a surrogate for metal HAP) emitted by its
tunnel kilns used to manufacture both clay and nonclay refractory
products. Since wet scrubbers were previously considered during the
Refractory Products Manufacturing NESHAP development, we did not
consider this to be a development in control technology.
    We also conducted a review of the state operating permits for the
three major source facilities that are subject to the Refractory
Products Manufacturing NESHAP and three synthetic area source
refractory facilities to determine whether any are using technologies
that exceed the MACT level of control or are using technologies that
were not considered during the development of the original NESHAP. We
found the HAP control devices described in the permits were considered
and included in the 2003 Refractory Products Manufacturing NESHAP for
the relevant refractory products. Therefore, the permit review did not
identify any new developments in processes or control technologies for
the refractory manufacturing source category under CAA section
112(d)(6).
    Based on our review of facility operating permits and discussions
with individual refractory product manufacturing facilities, we
identified an advance in practice that we are proposing in this action.
The current NESHAP has a work practice standard that applies during
periods of scheduled maintenance of emission controls for continuous
kilns during bypass periods. We are proposing to limit the provision to
THC emission controls and add additional requirements to reflect the
best practices for one facility as part of the technology review
required by CAA section 112(d)(6). In addition to the best practices,
we are proposing an additional reporting requirement. We

are aware of only one major source facility that uses this provision
and will be affected by these proposed requirements.
    To comply with current NESHAP work practice standard, the owner or
operator must request approval from the Administrator to bypass the
control device, minimize THC emissions during the period when the kiln
is operating and the control device is out of service, and minimize the
amount of time that the kiln is operating and the control device is out
of service. Approval from the Administrator must be requested in
advance for each scheduled maintenance event of the control device if
the bypass of the control device is required to conduct the
maintenance. The procedures for minimizing the THC emissions during the
time the control device is out of service and the amount of time the
control device is out of service for maintenance must be included in
the facility's OM&M plan, and records of the maintenance performed are
also required.
    Consistent with the demonstrated best practices for one facility,
we are proposing a revision to the existing requirements to limit the
number of hours bypass of the emission controls can occur to no more
than 750 hours per kiln per year. If the control being bypassed is for
THC control, the facility is also required to manufacture products with
lower HAP binder and limit production to no more than five cars with
higher THC binder levels during these periods, Therefore, we are also
proposing to require sources to schedule the manufacture of product
with binder percentages at the lower end of the range produced (i.e.,
below the typical average of product binder content) and the number of
kiln cars with products for which the mass fraction of organic HAP in
the resins, binders, and additives greater than the average must not
exceed five for the year on a 12-month rolling basis, consistent with
the best practices of the facility. Based on 2017 raw material and
production data provided by the facility, we estimate that if the
regenerative thermal oxidizer was offline for all 750 hours allowed by
the permit for maintenance, the HAP emissions during that 750 hours
would be about 61 pounds per year. This estimate is considered
conservative because it does not take into account any HAP emission
reductions that were achieved by implementing the best practices
described in this paragraph for periods when the control device is
offline (scheduling products with low HAP binder and limiting higher
THC binder levels to five cars).
    Finally, we are also proposing to add new reporting requirements
for these periods. We are proposing to require reporting of the THC
emissions and other information for control device maintenance and
bypass periods in semi-annual compliance reports (in addition to the
current NESHAP provision to document the planned maintenance procedures
in the OM&M plan and to maintain records of continuous kiln
maintenance). Reporting of this information in the semi-annual
compliance reports will help to ensure compliance with the revised
requirements that we are proposing.
    As part of the technology review, we also identified previously
unregulated HAP, and are proposing new standards under CAA sections
112(d)(2) and (3), as described in section IV.A, above. Additional
information supporting the revised standard is provided in the
memorandum titled Technology Review for the Refractory Products
Manufacturing NESHAP, available in the docket for this action.

E. What other actions are we proposing?

    In addition to the proposed actions described above, we are
proposing additional revisions to the NESHAP. We are proposing
revisions to the SSM provisions of the MACT rule in order to ensure
that they are consistent with the decision in Sierra Club v. EPA, 551
F. 3d 1019 (D.C. Cir. 2008), in which the court vacated two provisions
that exempted sources from the requirement to comply with otherwise
applicable CAA section 112(d) emission standards during periods of SSM.
We also are proposing various other changes to require electronic
submittal of notification of compliance status (NOCS) reports,
performance test and performance evaluation reports for refractory
products manufacturing facilities, new test methods and incorporation
by reference (IBR) of alternative test methods, and making technical
and editorial revisions. Our analyses and proposed changes related to
these issues are discussed in the sections below.
1. SSM
a. Proposed Elimination of the SSM Exemption
    In its 2008 decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C.
Cir. 2008), the court vacated portions of two provisions in the EPA's
CAA section 112 regulations governing the emissions of HAP during
periods of SSM. Specifically, the court vacated the SSM exemption
contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), holding that
under section 302(k) of the CAA, emissions standards or limitations
must be continuous in nature and that the SSM exemption violates the
CAA's requirement that some CAA section 112 standards apply
continuously.
    We are proposing the elimination of the SSM exemption in this rule,
which appears at 40 CFR 63.9792(a)(1). Consistent with Sierra Club v.
EPA, we are proposing standards in this rule that apply at all times.
We are also proposing several revisions to Table 11 of 40 CFR part 63,
subpart SSSSS (Applicability of General Provisions to Subpart SSSSS,
hereafter referred to as the ``General Provisions table to subpart
SSSSS''). For example, we are proposing to eliminate the incorporation
of the General Provisions' requirement that the source develop an SSM
plan. Further, we are proposing to eliminate and revise certain
recordkeeping and reporting requirements related to the SSM exemption
as further described below. The EPA has attempted to ensure that the
provisions we are proposing to eliminate are inappropriate,
unnecessary, or redundant in the absence of the SSM exemption. We are
seeking comment on the specific proposed deletions and revisions and
also whether additional provisions should be revised to achieve the
stated goal.
    In proposing these rule amendments, the EPA has taken into account
startup and shutdown periods and, for the reasons explained below, is
not proposing alternate standards for those periods. Nonclay refractory
sources employ the use of continuous and periodic kilns that use air
pollution control devices, including thermal oxidizers, regenerative
thermal oxidizers, and catalytic oxidizers, to meet the THC limit in
the rule. Facility representatives for these sources indicated that
startups and shutdowns of the kilns and air pollution control devices
are part of normal operations and they experience no difficulties in
meeting the existing THC emission limit during these periods.
Therefore, alternative standards are not needed.
    Periods of startup, normal operations, and shutdown are all
predictable and routine aspects of a source's operations. Malfunctions,
in contrast, are neither predictable nor routine. Instead they are, by
definition, sudden, infrequent and not reasonably preventable failures
of emissions control, process, or monitoring equipment. (40 CFR 63.2)
(Definition of malfunction). The EPA interprets CAA section 112 as not
requiring emissions that occur during periods of malfunction to be
factored

into development of CAA section 112 standards and this reading has been
upheld as reasonable by the court in U.S. Sugar Corp. v. EPA, 830 F.3d
579, 606-610 (2016). Under CAA 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 CAA section 112 that directs the Agency to consider
malfunctions in determining the level ``achieved'' by the best
performing sources when setting emission standards. As the court has
recognized, the phrase ``average emissions limitation achieved by the
best performing 12 percent of'' sources ``says nothing about how the
performance of the best units is to be calculated.'' Nat'l Ass'n of
Clean Water Agencies v. EPA, 734 F.3d 1115, 1141 (D.C. Cir. 2013).
While the EPA accounts for variability in setting emissions standards,
nothing in CAA section 112 requires the Agency to consider malfunctions
as part of that analysis. The EPA is not required to treat a
malfunction in the same manner as the type of variation in performance
that occurs during routine operations of a source. A malfunction is a
failure of the source to perform in a ``normal or usual manner'' and no
statutory language compels the EPA to consider such events in setting
CAA section 112 standards.
    As the court recognized in U.S. Sugar Corp, accounting for
malfunctions in setting standards 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. Id. at 608 (``the
EPA would have to conceive of a standard that could apply equally to
the wide range of possible boiler malfunctions, ranging from an
explosion to minor mechanical defects. Any possible standard is likely
to be hopelessly generic to govern such a wide array of
circumstances.''). 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 (D.C. Cir. 1999) (``The 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 (D.C. 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, emissions during a malfunction event can be significantly
higher than emissions at any other time of source operation. For
example, if an air pollution control device with 99 percent removal
goes off-line as a result of a malfunction (as might happen if, for
example, the bags in a baghouse catch fire) and the emission unit is a
steady state type unit that would take days to shut down, the source
would go from 99 percent control to zero control until the control
device was repaired. The source's emissions during the malfunction
would be 100 times higher than during normal operations. As such, the
emissions over a 4-day malfunction period would exceed the annual
emissions of the source during normal operations. As this example
illustrates, accounting for malfunctions could lead to standards that
are not reflective of (and significantly less stringent than) levels
that are achieved by a well-performing non-malfunctioning source. It is
reasonable to interpret CAA section 112 to avoid such a result. The
EPA's approach to malfunctions is consistent with CAA section 112 and
is a reasonable interpretation of the statute.
    Although no statutory language compels the EPA to set standards for
malfunctions, the EPA has the discretion to do so where feasible. For
example, in the Petroleum Refinery Sector RTR, the EPA established a
work practice standard for unique types of malfunctions that result in
releases from pressure relief devices or emergency flaring events
because we had information to determine that such work practices
reflected the level of control that applies to the best performing
sources (80 FR 75178, 75211 through 75214, December 1, 2015). The EPA
will consider whether circumstances warrant setting standards for a
particular type of malfunction and, if so, whether the EPA has
sufficient information to identify the relevant best performing sources
and establish a standard for such malfunctions. We also encourage
commenters to provide any such information.
    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
will 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 will 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).
    If the EPA determines in a particular case that an enforcement
action against a source for violation of an emission standard is
warranted, the source can raise any and all defenses in that
enforcement action and the federal district court will determine what,
if any, relief is appropriate. The same is true for citizen enforcement
actions. Similarly, the presiding officer in an administrative
proceeding can consider any defense raised and determine whether
administrative penalties are appropriate.
    In summary, the EPA interpretation of the CAA and, in particular,
CAA section 112, is reasonable and encourages practices that will avoid
malfunctions. Administrative and judicial procedures for addressing
exceedances of the standards fully recognize that violations may occur
despite good faith efforts to comply and can accommodate those
situations. U.S. Sugar Corp. v. EPA, 830 F.3d 579, 606-610 (2016).
b. 40 CFR 63.9792(b) General Duty
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR 63.6(e)(1)(i) by changing the ``yes''
in column 4 to a ``no.'' Section 63.6(e)(1)(i) describes the general
duty to minimize emissions. Some of the language in that section is no
longer necessary or appropriate in light of the elimination of the SSM
exemption. We are proposing instead to add general duty regulatory text
at 40 CFR 63.9792(b) that reflects the general duty to minimize
emissions while eliminating the reference to periods covered by an SSM
exemption. The current language in 40 CFR 63.6(e)(1)(i) characterizes
what the general duty entails during periods of SSM. With the
elimination of the SSM

exemption, there is no need to differentiate between normal operations,
startup and shutdown, and malfunction events in describing the general
duty. Therefore, the language the EPA is proposing for 40 CFR
63.9792(b) does not include that language from 40 CFR 63.6(e)(1)(i).
    We are also proposing to revise the General Provisions table to
subpart SSSSS (Table 11) entry for 40 CFR 63.6(e)(1)(ii) by changing
the ``yes'' in column 4 to a ``no.'' Section 63.6(e)(1)(ii) imposes
requirements that are not necessary with the elimination of the SSM
exemption or are redundant with the general duty requirement being
added at 40 CFR 63.9792(b).
c. SSM Plan
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR 63.6(e)(3) by changing the ``yes'' in
column 4 to a ``no.'' Generally, these paragraphs require development
of an SSM plan and specify SSM recordkeeping and reporting requirements
related to the SSM plan. We are also proposing to remove from 40 CFR
part 63, subpart SSSSS, the current provisions requiring the SSM plan
at 40 CFR 63.9792(c). As noted, the EPA is proposing to remove the SSM
exemptions. Therefore, affected units will be subject to an emission
standard during such events. The applicability of a standard during
such events will ensure that sources have ample incentive to plan for
and achieve compliance, and, thus, the SSM plan requirements are no
longer necessary.
d. Compliance With Standards
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR 63.6(f)(1) by changing the ``yes'' in
column 4 to a ``no.'' The current language of 40 CFR 63.6(f)(1) exempts
sources from non-opacity standards during periods of SSM. As discussed
above, the court in Sierra Club vacated the exemptions contained in
this provision and held that the CAA requires that some CAA section 112
standards apply continuously. Consistent with Sierra Club, the EPA is
proposing to revise the standards in this rule to apply at all times.
e. 40 CFR 63.9800 Performance Testing
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR 63.7(e)(1) by changing the entry in
column 4 to a ``no.'' Section 63.7(e)(1) describes performance testing
requirements. The EPA is instead proposing to add a performance testing
requirement at 40 CFR 63.9800(d). The performance testing requirements
we are proposing to add differ from the General Provisions performance
testing provisions in several respects. The regulatory text does not
include the language in 40 CFR 63.7(e)(1) that restated the SSM
exemption and language that precluded startup and shutdown periods from
being considered ``representative'' for purposes of performance
testing. The proposed performance testing provisions will also not
allow performance testing during startup or shutdown. As in 40 CFR
63.7(e)(1), performance tests conducted under this subpart should not
be conducted during malfunctions because conditions during malfunctions
are often not representative of normal operating conditions. Section
63.7(e) requires that the owner or operator maintain records of the
process information necessary to document operating conditions during
the test and include in such records an explanation to support that
such conditions represent normal operation. The EPA is proposing to add
language clarifying that the owner or operator must make such records
available to the Administrator.
f. Monitoring
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR 63.8(c)(1) by changing the ``yes'' in
column 4 to a ``no.'' The cross-references to the general duty and SSM
plan requirements in 40 CFR 63.8(c)(1) are not necessary in light of
other requirements of 40 CFR 63.8 that require good air pollution
control practices (40 CFR 63.8(c)(1)) and that set out the requirements
of a quality control program for monitoring equipment (40 CFR 63.8(d)).
Further, we are proposing to revise 40 CFR 63.9804(a)(13) and
63.9808(b) to add requirements to maintain the monitoring equipment at
all times in accordance with 40 CFR 63.9792(b) and keep the parts
readily available for routine repairs of the monitoring equipment,
consistent with the requirements in 40 CFR 63.8(c)(1)(ii).
g. 40 CFR 63.9816 Recordkeeping
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR 63.10(b)(2)(i) by changing the
``yes'' in column 4 to a ``no.'' Section 63.10(b)(2)(i) describes the
recordkeeping requirements during startup and shutdown. These recording
provisions are no longer necessary because the EPA is proposing that
recordkeeping and reporting applicable to normal operations will apply
to startup and shutdown. In the absence of special provisions
applicable to startup and shutdown, such as a startup and shutdown
plan, there is no reason to retain additional recordkeeping for startup
and shutdown periods.
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR 63.10(b)(2)(ii) by changing the
``yes'' in column 4 to a ``no.'' Section 63.10(b)(2)(ii) describes the
recordkeeping requirements during a malfunction, requiring a record of
``the occurrence and duration of each malfunction.'' A similar record
is already required in 40 CFR 63.9816(c)(5), which requires a record of
``the date, time, and duration of each deviation,'' which the EPA is
retaining. The regulatory text in 40 CFR 63.9816(c)(5) differs from the
General Provisions in that the General Provisions requires the creation
and retention of a record of the occurrence and duration of each
malfunction of process, air pollution control, and monitoring
equipment; whereas 40 CFR 63.9816(c)(5) applies to any failure to meet
an applicable standard and is requiring that the source record the
date, time, and duration of the failure rather than the ``occurrence.''
For this reason, the EPA is proposing to add to 40 CFR 63.9816(c)(5) a
requirement that sources also keep records that include a list of the
affected source or equipment and actions taken to minimize emissions,
an estimate of the quantity of each regulated pollutant emitted over
the emission limit for which the source failed to meet the standard,
and a description of the method used to estimate the emissions.
Examples of such methods would include product-loss calculations, mass
balance calculations, measurements when available, or engineering
judgment based on known process parameters (e.g., process throughput,
rate, operating temperature, organic HAP content, and control device
efficiencies). The EPA is proposing to require that sources keep
records of this information to ensure that there is adequate
information to allow the EPA to determine the severity of any failure
to meet a standard, and to provide data that may document how the
source met the general duty to minimize emissions when the source has
failed to meet an applicable standard.
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR

63.10(b)(2)(iv) and (v) by changing the ``yes'' in column 4 to a
``no.'' When applicable, the provision requires sources to record
actions taken during SSM events when actions were inconsistent with
their SSM plan. The requirement in 40 CFR 63.10(b)(2)(iv) is no longer
appropriate because SSM plans will no longer be required. The
requirement previously applicable under 40 CFR 63.10(b)(2)(iv)(B) to
record actions to minimize emissions and record corrective actions is
now applicable by reference to 40 CFR 63.9816(c)(5). When applicable,
the provision in 40 CFR 63.10(b)(2)(v) requires sources to record
actions taken during SSM events to show that actions taken were
consistent with their SSM plan. The requirement is no longer
appropriate because SSM plans will no longer be required.
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR 63.10(b)(2)(vi) by changing the
``yes'' in column 4 to a ``no.'' The provision requires sources to
maintain records during continuous monitoring system (CMS)
malfunctions. Section 63.9816(c)(5) covers records of periods of
deviation from the standard, including instances where a CMS is
inoperative or out-of-control.
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR 63.10(c)(15) by changing the ``yes''
in column 4 to a ``no.'' When applicable, the provision allows an owner
or operator to use the affected source's SSM plan or records kept to
satisfy the recordkeeping requirements of the SSM plan, specified in 40
CFR 63.6(e), to also satisfy the requirements of 40 CFR 63.10(c)(10)
through (12). The EPA is proposing to eliminate this requirement
because SSM plans would no longer be required, and, therefore, 40 CFR
63.10(c)(15) no longer serves any useful purpose for affected units.
    We are proposing to remove the requirement in 40 CFR 63.9816(a)(2)
that deviation records specify whether deviations from a standard
occurred during a period of SSM. This revision is being proposed due to
the proposed removal of the SSM exemption and because, as discussed
above in this section, we are proposing that deviation records must
specify the cause of each deviation, which could include a malfunction
period as a cause. We are also proposing to remove the requirement to
report the SSM records in 40 CFR 63.6(e)(3)(iii) through (v) by
deleting 40 CFR 63.9816(a)(2).
h. 40 CFR 63.9814 Reporting
    We are proposing to revise the General Provisions table to subpart
SSSSS (Table 11) entry for 40 CFR 63.10(d)(5) by changing the ``yes''
in column 4 to a ``no.'' Section 63.10(d)(5) describes the reporting
requirements for SSM. To replace the General Provisions reporting
requirement, the EPA is proposing to remove the immediate SSM report
from Table 10 referenced at 40 CFR 63.9814(a) and add reporting
requirements to 40 CFR 63.9814(d) and (e). The replacement language
differs from the General Provisions requirement in that it eliminates
the SSM report as a stand-alone report. We are proposing language that
requires sources that fail to meet an applicable standard at any time
to report the information concerning such events in the semi-annual
compliance report already required under this rule. For deviations from
an applicable emission limitation that occur at an affected source
where a CPMS is not used to demonstrate compliance, 40 CFR 63.9814(d)
already requires that the semi-annual compliance report must contain
the number, duration, and the cause of such events (including unknown
cause, if applicable). We are proposing that the report also include
the date and time of each deviation, a list of the affected source or
equipment, an estimate of the quantity of each regulated pollutant
emitted over any emission limit for which the source failed to meet the
standard, and a description of the method used to estimate the
emissions. Similarly, for deviations from an applicable emission
limitation that occur at an affected source where a CPMS is used to
demonstrate compliance, we are retaining the current requirements in 40
CFR 63.9814(e) to report the date, time, and cause of each deviation.
We are proposing that the report must also contain the number and
duration of deviations, a list of the affected sources or equipment, an
estimate of the quantity of each regulated pollutant emitted over any
emission limit, and a description of the method used to estimate the
emissions.
    Regarding the proposed new requirement discussed above to estimate
the quantity of each regulated pollutant emitted over any emission
limit for which the source failed to meet the standard and a
description of the method used to estimate the emissions, examples of
such methods would include product-loss calculations, mass balance
calculations, measurements when available, or engineering judgment
based on known process parameters (e.g., process throughput, rate,
operating temperature, organic HAP content, and control device
efficiencies). The EPA is proposing this requirement to ensure that the
EPA has adequate information to determine compliance, to allow the EPA
to determine the severity of the failure to meet an applicable
standard, and to provide data that may document how the source met the
general duty to minimize emissions during a failure to meet an
applicable standard.
    We will no longer require owners or operators to determine whether
actions taken to correct a malfunction are consistent with an SSM plan,
because plans would no longer be required. The proposed amendments,
therefore, eliminate the requirement in Table 10 to 40 CFR part 63,
subpart SSSSS to report whether the source deviated from its SSM plan,
including required actions to communicate with the Administrator, and
the cross-reference to 40 CFR 63.10(d)(5)(ii) that contains the
description of the previously required SSM report format and submittal
schedule from this section. These specifications are no longer
necessary because the events will be reported in otherwise required
reports with similar format and submittal requirements.
    Section 63.10(d)(5)(ii) describes an immediate report for SSM when
a source failed to meet an applicable standard but did not follow the
SSM plan. We will no longer require owners and operators to report when
actions taken during an SSM event were not consistent with an SSM plan,
because plans would no longer be required.
    We are proposing to remove the requirement in 40 CFR 63.9814(e)(5)
that deviation reports must specify whether deviation from an operating
limit occurred during a period of SSM. We are also proposing to remove
the requirements in 40 CFR 63.9814(e)(8) to break down the total
duration of deviations into the startup and shutdown categories. As
discussed above in this section, we are proposing to require reporting
of the cause of each deviation. Further, the startup and shutdown
categories no longer apply because these periods are proposed to be
considered normal operation.
2. Electronic Reporting Requirements
    The EPA is proposing that owners and operators of refractory
products manufacturing facilities submit electronic copies of NOCS
required by 40 CFR 63.7(b) and (c), 40 CFR 63.8(f)(4), and 40 CFR 63.9
(b) through (e) and (h), and 40 CFR 63.9812, and performance test
results and performance evaluation results required

by 40 CFR 63.9(h) and 40 CFR 63.9800, and 40 CFR 63.9814 through the
EPA's Central Data Exchange (CDX) using the Compliance and Emissions
Data Reporting Interface (CEDRI). A description of the electronic data
submission process is provided in the memorandum, Electronic Reporting
Requirements for New Source Performance Standards (NSPS) and National
Emission Standards for Hazardous Air Pollutants (NESHAP) Rules,
available in the docket for this action. The proposal requires that all
NOCS be submitted as portable document format (PDF) files and uploaded
to CEDRI. For performance test and performance evaluation results the
proposal requires test results that use test methods supported by the
EPA's Electronic Reporting Tool (ERT) listed on the ERT website \25\ at
the time of the test be submitted in the format generated through the
use of the ERT or an electronic file consistent with the xml schema on
the ERT website. Performance test results using test methods that are
not supported by the ERT at the time of the test are required to
submitted as a PDF file using the attachment module of the ERT.
---------------------------------------------------------------------------

    \25\ https://www.epa.gov/electronic-reporting-air-emissions/electronic-reporting-tool-ert.
---------------------------------------------------------------------------

    Additionally, the EPA has identified two broad circumstances in
which electronic reporting extensions may be provided. These
circumstances are (1) outages of the EPA's CDX or CEDRI that preclude
an owner or operator from accessing the system and submitting required
reports and (2) force majeure events, which are defined as events that
will be or have been caused by circumstances beyond the control of the
affected facility, its contractors, or any entity controlled by the
affected facility that prevent an owner or operator from complying with
the requirement to submit a report electronically. Examples of force
majeure events are acts of nature, acts of war or terrorism, or
equipment failure or safety hazards beyond the control of the facility.
The EPA is providing these potential extensions to protect owners and
operators from noncompliance in cases where they cannot successfully
submit a report by the reporting deadline for reasons outside of their
control. In both circumstances, the decision to accept the claim of
needing additional time to report is within the discretion of the
Administrator, and reporting should occur as soon as possible.
    The electronic submittal of the reports addressed in this proposed
rulemaking will increase the usefulness of the data contained in those
reports, is in keeping with current trends in data availability and
transparency, will further assist in the protection of public health
and the environment, will improve compliance by facilitating the
ability of regulated facilities to demonstrate compliance with
requirements and by facilitating the ability of delegated state, local,
tribal, and territorial air agencies and the EPA to assess and
determine compliance, and will ultimately reduce burden on regulated
facilities, delegated air agencies, and the EPA. Electronic reporting
also eliminates paper-based, manual processes, thereby saving time and
resources, simplifying data entry, eliminating redundancies, minimizing
data reporting errors, and providing data quickly and accurately to the
affected facilities, air agencies, the EPA, and the public. Moreover,
electronic reporting is consistent with the EPA's plan \26\ to
implement Executive Order 13563 and is in keeping with the EPA's
Agency-wide policy \27\ developed in response to the White House's
Digital Government Strategy.\28\ For more information on the benefits
of electronic reporting, see the memorandum, Electronic Reporting
Requirements for New Source Performance Standards (NSPS) and National
Emission Standards for Hazardous Air Pollutants (NESHAP) Rules,
referenced earlier in this section.
---------------------------------------------------------------------------

    \26\ EPA's Final Plan for Periodic Retrospective Reviews, August
2011. Available at: https://www.regulations.gov/document?D=EPA-HQ-OA-2011-0156-0154.
    \27\ E-Reporting Policy Statement for EPA Regulations, September
2013. Available at: https://www.epa.gov/sites/production/files/2016-03/documents/epa-ereporting-policy-statement-2013-09-30.pdf.
    \28\ Digital Government: Building a 21st Century Platform to
Better Serve the American People, May 2012. Available at: https://obamawhitehouse.archives.gov/sites/default/files/omb/egov/digital-government/digital-government.html.
---------------------------------------------------------------------------

3. Incorporation by Reference Under 1 CFR Part 51
    The EPA is proposing regulatory text that includes IBR. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference the following documents described in the
amendments to 40 CFR 63.14:
     ANSI/ASME PTC 19.10-1981, ``Flue and Exhaust Gas Analyses
[Part 10, Instruments and Apparatus],'' issued August 31, 1981, IBR
proposed for Table 4 to 40 CFR part 63, subpart SSSSS. This document
specifies methods, apparatus, and calculations which are used to
determine quantitatively, the gaseous constituents of the exhausts
including oxygen and carbon dioxide resulting from station combustions
sources.
     ASTM D6348-12e1, ``Standard Test Method for Determination
of Gaseous Compounds by Extractive Direct Interface Fourier Transform
Infrared (FTIR) Spectroscopy,'' Approved February 1, 2012, IBR proposed
for Table 4 to 40 CFR part 63, subpart SSSSS.
     ASTM D6784-16, ``Standard Test Method for Elemental,
Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from
Coal-Fired Stationary Sources (Ontario Hydro Method),'' (Approved March
1, 2016), IBR proposed for Table 4 to 40 CFR part 63, subpart SSSSS.
     EPA-454/R-98-015, Office of Air Quality Planning and
Standards (OAQPS), ``Fabric Filter Bag Leak Detection Guidance,''
September 1997, IBR proposed for 40 CFR 63.9804(f). This document
provides guidance on the use of triboelectric monitors as fabric filter
bag leak detectors. The document includes fabric filter and monitoring
system descriptions; guidance on monitor selection, installation,
setup, adjustment, and operation; and quality assurance procedures.
    The EPA has made, and will continue to make, the EPA document
generally available electronically through https://www.regulations.gov/
and/or in hard copy at the appropriate EPA office (see the ADDRESSES
section of this preamble for more information). The ANSI/ASME document
is available from the American Society of Mechanical Engineers (ASME)
at http://www.asme.org; by mail at Three Park Avenue, New York, NY
10016-5990; or by telephone at<PHONE_NUMBER>. The ASTM methods are
available from ASTM International at http://www.astm.org; by mail at
100 Barr Harbor Drive, Post Office Box C700, West Conshohocken, PA
19428-2959; or by telephone at<PHONE_NUMBER>.
4. Technical and Editorial Changes
    The following lists additional proposed changes that address
technical and editorial corrections:
     Revise 40 CFR 63.9824 and Table 4 to subpart SSSSS of part
63 to clarify the location in 40 CFR part 60 of applicable EPA test
methods; and
     Revise 40 CFR 63.9814 and 40 CFR 63.9816 to include the
requirements to record and report information on failures to meet the
applicable standard.

F. What compliance dates are we proposing?

    We are proposing that affected sources that commence construction
or reconstruction after January 14, 2021, must comply with all
requirements of

the subpart, including the amendments being proposed, no later than the
effective date of the final rule or upon startup, whichever is later.
The final action is not expected to be a ``major rule'' as defined by 5
U.S.C. 804(2), so the effective date of the final rule will be the
promulgation date as specified in CAA section 112(d)(10).
    We are proposing that affected sources that commence construction
or reconstruction on or before January 14, 2021, must comply with the
all requirements of the subpart, including the amendments being
proposed, no later than the dates described below. We are also
proposing that existing nonclay affected sources must comply with the
requirement to use natural gas as fuel, or an equivalent fuel, as the
kiln fuel (except during periods of natural gas curtailment or supply
interruption) immediately upon the effective date of the final rule.
    Also, we are proposing that existing affected sources must comply
with the following two amendments no later than 181 days after the
effective date of the final rule (i.e., 181 days after the date of
publication of the final rule in the Federal Register). First, for
existing affected sources, we are proposing a requirement that
notifications, performance test results, and performance evaluation
results be electronically submitted. Second, for existing affected
sources with continuous kilns using THC emission control devices, we
are proposing improvements to the existing work practice standard as a
result of the CAA section 112(d)(6) technology review i.e., limit the
number of hours for bypass of the control device to conduct scheduled
maintenance to 750 hours per year per kiln, schedule the manufacture of
product with binder percentages at the lower end of the range during
periods of control device bypass, and report THC emissions in the semi-
annual compliance report. Existing affected facilities would have to
continue to meet the current requirements of 40 CFR part 63, subpart
SSSSS, until the applicable compliance date of the amended rule (i.e.,
181 days after the date of publication of the final rule in the Federal
Register).
    Finally, we are proposing that affected clay refractory product
sources that commenced construction or reconstruction on or before
January 14, 2021 must meet new limits for PM/metal HAP and mercury no
later than 1 year after the effective date of the final rule. The EPA
determined that a 1-year compliance date allows sufficient time for
notification and testing to demonstrate initial compliance with the new
PM/metal HAP and mercury limits.
    We are proposing the immediate compliance date for the removal of
the SSM exemptions in 40 CFR 63.6(f)(1) in accordance with the SSM
court decision. For other SSM changes, excluding the revised
requirements for the SSM described above (40 CFR 63.6(f)(1)), our
experience with similar industries further shows that this sort of
regulated facility generally requires a time period of 181 days to read
and understand the amended rule requirements; make any necessary
adjustments; to read and understand the rule and adjust computer
systems, evaluate whether changes are needed, and to update their OM&M
plan to reflect the revised requirements.
    We also determined that an immediate compliance date is practicable
for the natural gas requirement and is based on current practices and
other information provided by the facilities.
    We are proposing the 181-day compliance date for electronic
reporting and the scheduled maintenance work practice to require
facilities to implement these changes as expeditiously as practicable.
For electronic reporting, our experience with similar industries that
are required to convert reporting mechanisms to install necessary
hardware and software, become familiar with the process of submitting
performance test results electronically through the EPA's CEDRI, test
these new electronic submission capabilities, and reliably employ
electronic reporting shows that a time period of a minimum of 90 days,
and, more typically, 180 days, is generally necessary to successfully
accomplish these revisions. For the scheduled maintenance work
practice, we expect facilities would also need this time to seek
approval from the Administrator before taking the control device on the
affected kiln out of service for scheduled maintenance and update their
operation, maintenance, and monitoring plan to reflect the revised
requirements.
    For the new PM/metal HAP and mercury requirements, we determined
the 1-year compliance date would provide existing clay sources with
sufficient time to plan and schedule facility resources to meet the
notification and compliance demonstration testing requirements
associated with the new limits.
    We solicit comment on these proposed compliance periods, and we
specifically request submission of information from sources in this
source category regarding specific actions that would need to be
undertaken to comply with the proposed amended requirements and the
time needed to make the adjustments for compliance with any of the
revised requirements. We note that information provided may result in
changes to the proposed compliance dates.

V. Summary of Cost, Environmental, and Economic Impacts

A. What are the affected sources?

    Currently, three major sources subject to the Refractory Products
Manufacturing NESHAP are operating in the United States. The NESHAP
applies to each new, reconstructed, and existing affected source
located at a refractory products manufacturing facility that is a major
source of HAP emissions, is located at a major source of HAP emissions,
or is part of a major source of HAP emissions. A refractory products
manufacturing facility is a plant site that manufactures refractory
products, such as refractory bricks, refractory shapes, monolithics,
kiln furniture, crucibles, and other materials used for lining furnaces
and other high temperature process units. Refractory products
manufacturing facilities typically process raw material by crushing,
grinding, and screening; mixing the processed raw materials with
binders and other additives; forming the refractory mix into shapes;
and drying and firing the shapes. The NESHAP lists the affected sources
for four subcategories across the industry as the shape dryers, curing
ovens, and kilns that are used to manufacture refractory products that
use organic HAP; shape preheaters, pitch working tanks, defumers, and
coking ovens that are used to produce pitch-impregnated refractory
products; kilns that are used to manufacture chromium refractory
products; and kilns that are used to manufacture clay refractory
products. The three major sources currently operating in the U.S. can
be grouped into two of the subcategories and use curing ovens and kilns
that are used to manufacture nonclay refractory products that use
organic HAP and kilns that are used to manufacture clay refractory
products.

B. What are the air quality impacts?

    At the current level of control, the estimated emissions of HAP
from the Refractory Products Manufacturing source category are
approximately 40 tpy. The proposed amendments require that all three
major sources in the Refractory Products Manufacturing source category
comply with the relevant emission standards at all times,

including periods of SSM. The proposed amendments also limit the number
of hours a continuous kiln control device can be bypassed during
scheduled maintenance and require minimizing emissions of THC during
bypass periods. We were unable to quantify the emissions that occur
during periods of SSM or the specific emissions reductions that would
occur as a result of this action. However, eliminating the SSM
exemption has the potential to reduce emissions by requiring facilities
to meet the applicable standard during SSM periods. Requiring the use
of natural gas as kiln fuel also ensures a reduction in metal HAP
emissions from combustion of coal, fuel oil, or waste-derived fuels.
    Indirect or secondary air emissions impacts are impacts that would
result from the increased electricity usage associated with the
operation of control devices (e.g., increased secondary emissions of
criteria pollutants from power plants). Energy impacts consist of the
electricity and steam needed to operate control devices and other
equipment. The proposed amendments would have no effect on the energy
needs of the affected facilities in either of the two source categories
and would, therefore, have no indirect or secondary air emissions
impacts.

C. What are the cost impacts?

    We estimate that each facility in this source category will
experience costs as a result of these proposed amendments. Estimates
for reporting and recordkeeping costs for each facility are associated
with the electronic reporting requirements, elimination of the SSM
exemption, and scheduled maintenance of continuous kiln control
devices. The costs associated with the electronic reporting
requirements are attributed to submittal of notifications and semi-
annual compliance reports using CEDRI and include time for becoming
familiar with CEDRI. The costs associated with the revised SSM
requirements were estimated for re-evaluating previously developed SSM
record systems. The costs associated with recordkeeping to document the
frequency and duration of scheduled maintenance of control devices for
continuous kilns were also estimated. The recordkeeping and reporting
costs are presented in section VIII.C of this preamble.
    We also estimated the costs associated with the proposed new
compliance testing requirements for the clay refractory sources in this
action. Two of the major source refractories manufacture clay
refractory and are required to conduct periodic compliance testing for
PM/metal HAP and mercury once every 5 years. One clay refractory source
has two continuous kilns and the other has two continuous kilns and
three batch kilns. The costs associated with conducting the combined
PM/metal HAP and mercury test for each continuous kiln stack is
estimated to be about $23,600. The costs associated with conducting the
combined PM/metal HAP and mercury test for each batch kiln stack is
estimated to be about $31,800. We also assumed that tests for
additional stacks at the same facility would be conducted in the same
trip, so the additional cost is less due to reduced travel costs. The
total costs for the two facilities to test the seven kilns in a single
year would be $115,300. In addition to the testing costs, each facility
performing the testing will have an additional $6,800 in reporting
costs per facility in the year in which the test occurs.
    For kilns that meet the limits without any controls, owners or
operators are required to conduct VE monitoring to demonstrate
compliance. One of the continuous kilns is controlled with a wet
scrubber, but the other six kilns are expected to need to conduct VE
monitoring. We estimate that the monitoring will cost $3,740 per year
per stack, for a total of $22,400 per year.
    For further information on the potential testing and monitoring
costs, see the memorandum titled Development of Proposed Standards and
Impacts for the Refractory Products Manufacturing NESHAP, located in
the docket for this action.

D. What are the economic impacts?

    The economic impact analysis is designed to inform decision makers
about the potential economic consequences of the compliance costs
outlined in section V.C of this preamble. To assess the maximum
potential impact, the largest cost expected to be experienced in any
one year is compared to the total sales for the ultimate owner of the
affected facilities to estimate the total burden for each owner. For
these proposed amendments, the total cost of testing, monitoring, and
recordkeeping and reporting is estimated to be $158,140. The total
annual costs associated with the requirements range from 0.00008 to
0.18 percent of annual sales revenue per ultimate owner. These costs
are not expected to result in a significant market impact, regardless
of whether they are passed on to customers or absorbed by the firms.
    The EPA also prepared a small business screening assessment to
determine whether any of the identified affected facilities are small
entities, as defined by the U.S. Small Business Administration. One of
the facilities affected by these amendments is a small entity. However,
the annual cost associated with the requirements is 0.18 percent of
annual sales revenue for the owner of that facility. Therefore, there
are no significant economic impacts on a substantial number of small
entities from these amendments.

E. What are the benefits?

    As stated above in section V.C of this preamble, we were unable to
quantify the specific emissions reductions associated with eliminating
the SSM exemption, although this proposed change has the potential to
reduce emissions of volatile organic HAP.
    Because these proposed amendments are not considered economically
significant, as defined by Executive Order 12866, we did not monetize
the benefits of reducing these emissions. This does not mean that there
are no benefits associated with the potential reduction in volatile
organic HAP from this rule.

VI. Request for Comments

    We solicit comments on this proposed action. In addition to general
comments on this proposed action, we are also interested in additional
data that may improve the risk assessments and other analyses. We are
specifically interested in receiving any improvements to the data used
in the site-specific emissions profiles used for risk modeling. Such
data should include supporting documentation in sufficient detail to
allow characterization of the quality and representativeness of the
data or information. Section VII of this preamble provides more
information on submitting data.

VII. Submitting Data Corrections

    The site-specific emissions profiles used in the source category
risk and demographic analyses and instructions are available for
download on the project website at https://www.epa.gov/stationary-sources-air-pollution/refractory-products-manufacturing-national-emissions-standards. The data files include detailed information for
each HAP emissions release point for the facilities in the source
category.
    If you believe that the data are not representative or are
inaccurate, please identify the data in question, provide your reason
for concern, and provide any ``improved'' data that you have, if
available. When you submit data, we request that you provide
documentation of the basis for the revised values to support your
suggested changes. To submit comments on the data

downloaded from the project website, complete the following steps:
    1. Within this downloaded file, enter suggested revisions to the
data fields appropriate for that information.
    2. Fill in the commenter information fields for each suggested
revision (i.e., commenter name, commenter organization, commenter email
address, commenter phone number, and revision comments).
    3. Gather documentation for any suggested emissions revisions
(e.g., performance test reports, material balance calculations).
    4. Send the entire downloaded file with suggested revisions in
Microsoft[supreg] Access format and all accompanying documentation to
Docket ID No. EPA-HQ-OAR-2020-0148 (through the method described in the
ADDRESSES section of this preamble).
    5. If you are providing comments on a single facility or multiple
facilities, you need only submit one file for all facilities. The file
should contain all suggested changes for all sources at that facility
(or facilities). We request that all data revision comments be
submitted in the form of updated Microsoft[supreg] Excel files that are
generated by the Microsoft[supreg] Access file. These files are
provided on the project website at https://www.epa.gov/stationary-sources-air-pollution/refractory-products-manufacturing-national-emissions-standards .

VIII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This action is not a significant regulatory action and was,
therefore, not submitted to OMB for review.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is not expected to be an Executive Order 13771
regulatory action because this action is not significant under
Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this proposal have been
submitted for approval to OMB under the PRA. The ICR document that the
EPA prepared has been assigned EPA ICR number 2040.08. You can find a
copy of the ICR in the docket for this rule, and it is briefly
summarized here.
    As part of the RTR for the Refractory Products Manufacturing
NESHAP, the EPA is not proposing to revise the existing emission limit
requirements but is adding new emission limit requirements for existing
clay refractory sources and is adding new work practices for existing
nonclay refractory sources. The EPA is also proposing to revise the SSM
provisions of the rule and proposing the use of electronic data
reporting for future performance test data submittals, notifications,
and reports. This information is being collected to assure compliance
with 40 CFR part 63, subpart SSSSS.
    Respondents/affected entities: Facilities manufacturing refractory
products.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart SSSSS).
    Estimated number of respondents: In the 3 years after the
amendments are final, approximately three respondents per year would be
subject to the NESHAP and no additional respondents are expected to
become subject to the NESHAP during that period.
    Frequency of response: The total number of responses is 21 per
year.
    Total estimated burden: The average annual burden to the three
refractory products manufacturing facilities over the 3 years if the
amendments are finalized is estimated to be 230 hours (per year). The
average annual burden to the Agency over the 3 years after the
amendments are final is estimated to be 202 hours (per year). Burden is
defined at 5 CFR 1320.3(b).
    Total estimated cost: The average annual cost to the refractory
products manufacturing facilities is $27,100 in labor costs in the
first 3 years after the amendments are final. The average annual
capital and operation and maintenance cost is $69,900. The total
average annual Agency cost over the first 3 years after the amendments
are final is estimated to be $9,990.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden to the EPA using the docket identified
at the beginning of this rule. You may also send your ICR-related
comments to OMB's Office of Information and Regulatory Affairs via
email to<EMAIL_ADDRESS>Attention: Desk Officer for the
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after receipt, OMB must receive comments no
later than February 16, 2021. The EPA will respond to any ICR-related
comments in the final rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. The
annualized costs associated with the proposed requirements in this
action for the affected small entities is described in section V.D.
above.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local, or tribal governments or the
private sector.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. No tribal facilities are known to be engaged in
any of the industries that would be affected by this action. In
addition, the EPA conducted a proximity analysis for this source
category and found that no refractory products manufacturing facilities
are located within 50 miles of tribal lands. Thus, Executive Order
13175 does not apply to this action.

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

    This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. This action's health and risk assessments are contained in
sections

III.A, IV.B, and IV.C of this preamble and are further documented in
the Refractory Products Manufacturing Docket.

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

    This action is not subject to Executive Order 13211 because it is
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51

    This action involves technical standards. Therefore, the EPA
conducted searches for the Refractory Products Manufacturing RTR
through the Enhanced National Standards Systems Network Database
managed by the American National Standards Institute (ANSI). We also
contacted voluntary consensus standards (VCS) organizations and
accessed and searched their databases. We conducted searches for EPA
Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, 5, 25, 25A, 26,
26A, and 29 of 40 CFR part 60, and EPA Methods 311 and 320 of 40 CFR
part 63, appendix A. No applicable VCS were identified for EPA Methods
1A, 2A, 2D, 2F, 2G, 5A, 5B, 5D, and 5F.
    The EPA is incorporating by reference the VCS ANSI/ASME PTC 19.10-
1981, ``Flue and Exhaust Gas Analyses.'' This method determines
quantitatively the gaseous constituents of exhausts resulting from
stationary combustion sources. The manual procedures (but not
instrumental procedures) of VCS ANSI/ASME PTC 19.10-1981--Part 10 may
be used as an alternative to EPA Method 3B for measuring the oxygen or
carbon dioxide content of the exhaust gas. The gases covered in ANSI/
ASME PTC 19.10-1981 are oxygen, carbon dioxide, CO, nitrogen,
SO2, sulfur trioxide, nitric oxide, nitrogen dioxide,
hydrogen sulfide, and hydrocarbons, however the use in this rule is
only applicable to oxygen and carbon dioxide and is an acceptable
alternative to the manual portion only and not the instrumental
portion.
    The EPA is incorporating by reference the VCS ASTM D6348-12e1,
``Determination of Gaseous Compounds by Extractive Direct Interface
Fourier Transform (FTIR) Spectroscopy,'' as an acceptable alternative
to EPA Method 320. ASTM D6348-03(2010) was determined to be equivalent
to EPA Method 320 with caveats. ASTM D6348-12e1 is a revised version of
ASTM D6348-03(2010) and includes a new section on accepting the results
from the direct measurement of a certified spike gas cylinder, but
lacks the caveats placed on the ASTM D6348-03(2010) version. The VCS
ASTM D6348-12e1, ``Determination of Gaseous Compounds by Extractive
Direct Interface Fourier Transform (FTIR) Spectroscopy,'' is an
extractive FTIR field test method used to quantify gas phase
concentrations of multiple analytes from stationary source effluent and
is an acceptable alternative to EPA Method 320 at this time with
caveats requiring inclusion of selected annexes to the standard as
mandatory. When using ASTM D6348-12e1, the following conditions must be
met:
    (1) The test plan preparation and implementation in the Annexes to
ASTM D6348-03, Sections A1 through A8 are mandatory; and
    (2) In ASTM D6348-03, Annex A5 (Analyte Spiking Technique), the
percent (%) R must be determined for each target analyte (Equation
A5.5).
    In order for the test data to be acceptable for a compound, percent
R must be 70 percent >= R <= 130 percent. If the %R value does not meet
this criterion for a target compound, the test data is not acceptable
for that compound and the test must be repeated for that analyte (i.e.,
the sampling and/or analytical procedure should be adjusted before a
retest). The percent R value for each compound must be reported in the
test report, and all field measurements must be corrected with the
calculated percent R value for that compound by using the following
equation:

Reported Results = ((Measured Concentration in Stack))/(%R) x 100.

    Finally, the EPA is incorporating by reference the VCS ASTM D6784-
16), ``Standard Test Method for Elemental, Oxidized, Particle-Bound and
Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources
(Ontario Hydro Method),'' as an acceptable alternative to EPA Method 29
(portion for mercury only) as a method for measuring elemental,
oxidized, particle-bound, and total mercury concentrations ranging from
approximately 0.5 to 100 micrograms per normal cubic meter. This test
method describes equipment and procedures for obtaining samples from
effluent ducts and stacks, equipment and procedures for laboratory
analysis, and procedures for calculating results. VCS ASTM D6784-16
allows for additional flexibility in the sampling and analytical
procedures for the earlier version of the same standard VCS ASTM D6784-
02 (Reapproved 2008).

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

    The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations, and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
    The documentation for this decision is contained in section IV.B of
this preamble and the technical report titled Risk and Technology
Review--Analysis of Demographic Factors for Populations Living Near
Refractory Products Manufacturing Source Category Operations, September
2020, available in the Refractory Products Manufacturing Docket,
respectively.
    As discussed in section IV.B of this preamble, we performed a
demographic analysis for each source category, which is an assessment
of risks to individual demographic groups, of the population close to
the facilities (within 50 km and within 5 km). In this analysis, we
evaluated the distribution of HAP-related cancer risks and noncancer
hazards from the Refractory Products Manufacturing source category
across different social, demographic, and economic groups within the
populations living near operations identified as having the highest
risks.
    The results of the Refractory Products Manufacturing source
category demographic analysis indicate that no one is exposed to a
cancer risk at or above 1-in-1 million and no one is exposed to a
chronic noncancer HI greater than 1.
    The proximity results (irrespective of risk) indicate that the
population percentages for ``ages 18 to 64'' and ``ages 65 and up''
demographic categories located within 5 km of refractory products
manufacturing facilities and ``ages 65 and up'' demographic categories
located within 50 km of refractory products manufacturing facilities
are slightly higher than their respective nationwide percentages.
    We do not expect this proposal to achieve significant reductions in
HAP emissions. The EPA anticipates that this action does not have
disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations, and/or
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629,
February 16, 1994) because it does not significantly affect the level
of protection provided to human health or the environment. The
documentation

for this decision is contained in section IV of this preamble and the
technical report titled Risk and Technology Review--Analysis of
Demographic Factors for Populations Living Near Refractory Products
Manufacturing Source Category Operations, September 2020, which are
available in the Refractory Products Manufacturing Docket,
respectively.

List of Subjects in 40 CFR Part 63

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

Andrew Wheeler,
Administrator.
[FR Doc. 2021-00137 Filed 1-13-21; 8:45 am]
BILLING CODE 6560-50-P