[Federal Register Volume 77, Number 3 (Thursday, January 5, 2012)]
[Rules and Regulations]
[Pages 556-591]
[FR Doc No: 2011-32933]

Vol. 77

Thursday,

No. 3

January 5, 2012

Part II

Environmental Protection Agency

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40 CFR Part 63

 National Emissions Standards for Hazardous Air Pollutants From
Secondary Lead Smelting; Final Rules

Federal Register / Vol. 77 , No. 3 / Thursday, January 5, 2012 /
Rules and Regulations

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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.

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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<PHONE_NUMBER>, 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:<PHONE_NUMBER>; and email address:
<EMAIL_ADDRESS>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:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; and email
address<EMAIL_ADDRESS>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,<PHONE_NUMBER>,             Nathan Topham,<PHONE_NUMBER>,
<EMAIL_ADDRESS><EMAIL_ADDRESS>----------------------------------------------------------------------------------------------------------------
\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
------------------------------------------------------------------------
                                                    NAICS \a\   MACT \b\
            NESHAP and source category                 Code       Code
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Secondary Lead Smelting...........................     331492       0205
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\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).
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    \1\ USEPA. Documentation for Developing the Initial Source
Category List--Final Report, USEPA/OAQPS, EPA-450/3-91-030, July,
1992.
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    If you have any questions regarding the applicability of any aspect
of 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.
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    \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.
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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.
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    \3\ Throughout this preamble, all references to lead emissions
means lead compounds as listed by Congress at section 112(b)(1) of
the Act.
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     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
------------------------------------------------------------------------
                                          D/F Emission     THC Emission
              Source type                  limit \a\        Limit \b\
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New and Existing Collocated Blast and              0.50           \c\ 20
 Reverberatory Furnaces...............
Existing Blast Furnaces...............              170          \c\ 360
New Blast Furnaces....................               10           \c\ 70
New and Existing Reverberatory and                  1.0               12
 Electric Furnaces....................
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\a\ ng/dscm on a TEQ basis, corrected to 7 percent O2.
\b\ ppmv as propane, corrected to 4 percent CO2.
\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\
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    \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.
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    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.
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    \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'').
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    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]
----------------------------------------------------------------------------------------------------------------
                                                                                Highest
                                                                                modeled lead  Concentration
            Facility name                        City                  State        concentration    is X times
                                                                                ([mu]g/m\3\)    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 [mu]g/m\3\ (1987) to 0.06 [mu]g/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 Sec.  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 to initiate cleaning within one hour of a release be
changed to require that the facility initiate cleaning activities
within one hour after discovery of an accidental release.
    Response: We accept the commenters' suggestion to use the CERCLA
reportable quantity threshold of 10 pounds to define an accidental
release of lead-containing dust. We also accept the commenters'
suggestion to require initiation of cleaning within one hour of
discovery of an accidental release.
    Comment: One commenter recommended that the definition of
``maintenance activity'' be changed from ``any of the following routine
maintenance and repair activities that generate fugitive lead dust:''
to ``any of the following maintenance and repair activities when they
generate fugitive lead dust:''
    Response: We do not agree with the commenter's proposed change to