National Emission Standards for Hazardous Air Pollutant Emissions for Primary Lead Processing, 70834-70859 [2011-29287]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

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



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Vol. 76

Tuesday,

No. 220

November 15, 2011

Part II





Environmental Protection Agency





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40 CFR Part 63





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

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

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2004-0305. All documents in the docket are 
listed on the https://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 https://www.regulations.gov, or in hard copy at the EPA Docket Center, EPA West 
Building, Room Number 3334, 1301 Constitution Ave. NW., Washington, DC. 
The Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m. 
Eastern Standard Time (EST), Monday through Friday. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the Air and Radiation Docket and Information Center is (202) 
566-1742.

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

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

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

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

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document?
    C. Judicial Review
II. Background
III. Summary of the Final Rule
    A. What are the final rule amendments for the Primary Lead 
Processing source category?
    B. What are the requirements during periods of startup, 
shutdown, and malfunction?
    C. What are the effective and compliance dates of the standards?
IV. Summary of Significant Changes Since Proposal
    A. Changes to the Risk Assessment Performed Under Section 112(f) 
of the Clean Air Act
    B. Changes to the Technology Review Performed Under Section 
112(d)(6) of the Clean Air Act
    C. Other Changes Since Proposal
V. Summary of Significant Comments and Responses
    A. Timeline for Compliance
    B. The EPA's Authority Under Section 112 of the Clean Air Act
    C. Primary Lead Processing Risk Assessment
VI. Impacts of the Final Rule
VII. Statutory and Executive Order Reviews
    A. Executive Orders 12866: Regulatory Planning and Review, and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

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    K. Congressional Review Act

I. General Information

A. Does this action apply to me?

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

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

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

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

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

C. Judicial Review

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

II. Background

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

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

III. Summary of the Final Rule

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

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

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

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

    The United States Court of Appeals for the District of Columbia 
Circuit vacated portions of two provisions in the EPA's CAA Section 112 
regulations governing the emissions of HAP during periods of startup, 
shutdown, and malfunction (SSM). Sierra Club v. EPA, 551 F.3d 1019 (DC 
Cir. 2008), cert. denied, 130 S. Ct. 1735 (U.S. 2010). Specifically, 
the Court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and 
40 CFR 63.6(h)(1), that are part of a regulation, commonly referred to 
as the ``General Provisions Rule,'' that the EPA promulgated under 
section 112 of the CAA. When incorporated into CAA Section 112(d) 
regulations for specific source categories, these two provisions exempt 
sources from the requirement to comply with the otherwise applicable 
CAA section 112(d) emission standard during periods of SSM.
    We have eliminated the SSM exemption in this rule. Consistent with 
Sierra Club v. EPA, the EPA has established standards in this rule that 
apply at all times. We have also revised Table 1 (the General 
Provisions table) in several respects. For example, we have eliminated 
that incorporation of the General Provisions' requirement that the 
source develop an SSM plan. We have also eliminated or revised certain 
recordkeeping and reporting that related to the SSM exemption. The EPA 
has attempted to ensure that we have not included in the regulatory 
language any provisions that are inappropriate, unnecessary, or 
redundant in the absence of the SSM exemption.
    In establishing the standards in this rule, the EPA has taken into 
account startup and shutdown periods and, for the reasons explained 
below, has not established different standards for those periods. 
Information on periods of startup and shutdown in the industry indicate 
that emissions during these periods do not increase. Furthermore, all 
processes are controlled by either control devices or work practices, 
and these controls would not typically be affected by startup or 
shutdown. Also, compliance with the standards requires averaging of 
emissions over three-month periods, which accounts for the variability 
of emissions that may result during periods of startup and shutdown. 
Therefore, separate standards for periods of startup and shutdown are 
not being promulgated.
    Periods of startup, normal operations, and shutdown are all 
predictable and routine aspects of a source's operations. However, by 
contrast, malfunction is defined as a ``sudden, infrequent, and not 
reasonably preventable failure of air pollution control and monitoring 
equipment, process equipment or a process to operate in a normal or 
usual manner * * *'' (40 CFR 63.2). The EPA has determined that CAA 
section 112 does not require that emissions that occur during periods 
of malfunction be factored into development of CAA section 112 
standards. Under section 112, emission standards for new sources must 
be no less stringent than the level ``achieved'' by the best controlled 
similar source and for existing sources generally must be no less 
stringent than the average emission limitation ``achieved'' by the best 
performing 12 percent of sources in the category. There is nothing in 
section 112 that directs the Agency to consider malfunctions in 
determining the level ``achieved'' by the best performing or best 
controlled sources when setting emission standards. Moreover, while the 
EPA accounts for variability in setting emissions standards consistent 
with the section 112 caselaw, nothing in that caselaw requires the 
Agency to consider malfunctions as part of that analysis. Section 112 
uses the concept of ``best controlled'' and ``best performing'' unit in 
defining the level of stringency that section 112 performance standards 
must meet. Applying the concept of ``best controlled'' or ``best 
performing'' to a unit that is malfunctioning presents significant 
difficulties, as malfunctions are sudden and unexpected events.
    Further, accounting for malfunctions would be difficult, if not 
impossible, given the myriad different types of malfunctions that can 
occur across all sources in the category and given the difficulties 
associated with predicting or accounting for the frequency, degree, and 
duration of various malfunctions that might occur. As such, the 
performance of units that are malfunctioning is not ``reasonably'' 
foreseeable. See, e.g., Sierra Club v. EPA, 167 F.3d 658, 662 (DC Cir. 
1999) (EPA typically has wide latitude in determining the extent of 
data-gathering necessary to solve a problem. We generally defer to an 
agency's decision to proceed on the basis of imperfect scientific 
information, rather than to ``invest the resources to conduct the 
perfect study.''). See also, Weyerhaeuser v. Costle, 590 F.2d 1011, 
1058 (DC Cir. 1978) (``In the nature of things, no general limit, 
individual permit, or even any upset provision can anticipate all upset 
situations. After a certain point, the transgression of regulatory 
limits caused by `uncontrollable acts of third parties,' such as 
strikes, sabotage, operator intoxication or insanity, and a variety of 
other eventualities, must be a matter for the administrative exercise 
of case-by-case enforcement discretion, not for specification in 
advance by regulation.''). In addition, the goal of a best controlled 
or best performing source is to operate in such a way as to avoid 
malfunctions of the source and accounting for malfunctions could lead 
to standards that are significantly less stringent than levels that are 
achieved by a well-performing non-malfunctioning source. The EPA's 
approach to malfunctions is consistent with section 112 and is a 
reasonable interpretation of the statute.
    In the event that a source fails to comply with the applicable CAA 
section 112(d) standards as a result of a malfunction event, the EPA 
would determine an appropriate response based on, among other things, 
the good

[[Page 70838]]

faith efforts of the source to minimize emissions during malfunction 
periods, including preventative and corrective actions, as well as root 
cause analyses to ascertain and rectify excess emissions. The EPA would 
also consider whether the source's failure to comply with the CAA 
section 112(d) standard was, in fact, ``sudden, infrequent, not 
reasonably preventable'' and was not instead ``caused in part by poor 
maintenance or careless operation.'' 40 CFR 63.2 (definition of 
malfunction).
    Finally, the EPA recognizes that even equipment that is properly 
designed and maintained can sometimes fail and that such failure can 
sometimes cause an exceedance of the relevant emission standard. (See, 
e.g., State Implementation Plans: Policy Regarding Excessive Emissions 
During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on 
Excess Emissions During Startup, Shutdown, Maintenance, and 
Malfunctions (Feb. 15, 1983)). The EPA is therefore adding to the final 
rule an affirmative defense to civil penalties for exceedances of 
emission limits that are caused by malfunctions. See 40 CFR 63.1542 
Primary Lead Processing (defining ``affirmative defense'' to mean, in 
the context of an enforcement proceeding, a response or defense put 
forward by a defendant, regarding which the defendant has the burden of 
proof, and the merits of which are independently and objectively 
evaluated in a judicial or administrative proceeding.). We also have 
added other regulatory provisions to specify the elements that are 
necessary to establish this affirmative defense; the source must prove 
by a preponderance of the evidence that it has met all of the elements 
set forth in 63.1551 Primary Lead Processing. (See 40 CFR 22.24). The 
criteria ensure that the affirmative defense is available only where 
the event that causes an exceedance of the emission limit meets the 
narrow definition of malfunction in 40 CFR 63.2 (sudden, infrequent, 
not reasonable preventable and not caused by poor maintenance and or 
careless operation). For example, to successfully assert the 
affirmative defense, the source must prove by a preponderance of the 
evidence that excess emissions ``[w]ere caused by a sudden, infrequent, 
and unavoidable failure of air pollution control and monitoring 
equipment, process equipment, or a process to operate in a normal or 
usual manner * * *.'' The criteria also are designed to ensure that 
steps are taken to correct the malfunction, to minimize emissions in 
accordance with section 63.1543(i) and 63.1544(d), and to prevent 
future malfunctions. For example, the source must prove by a 
preponderance of the evidence that ``[r]epairs were made as 
expeditiously as possible when the applicable emission limitations were 
being exceeded * * *'' and that ``[a]ll possible steps were taken to 
minimize the impact of the excess emissions on ambient air quality, the 
environment and human health * * *.'' In any judicial or administrative 
proceeding, the Administrator may challenge the assertion of the 
affirmative defense and, if the respondent has not met its burden of 
proving all of the requirements in the affirmative defense, appropriate 
penalties may be assessed in accordance with Section 113 of the Clean 
Air Act (see also 40 CFR 22.27).
    The EPA included an affirmative defense in the final rule in an 
attempt to balance a tension, inherent in many types of air regulation, 
to ensure adequate compliance while simultaneously recognizing that 
despite the most diligent of efforts, emission limits may be exceeded 
under circumstances beyond the control of the source. The EPA must 
establish emission standards that ``limit the quantity, rate, or 
concentration of emissions of air pollutants on a continuous basis.'' 
42 U.S.C. 7602(k) (defining ``emission limitation and emission 
standard''). See generally Sierra Club v. EPA, 551 F.3d 1019, 1021 (DC 
Cir. 2008) Thus, the EPA is required to ensure that section 112 
emissions limitations are continuous. The affirmative defense for 
malfunction events meets this requirement by ensuring that even where 
there is a malfunction, the emission limitation is still enforceable 
through injunctive relief. While ``continuous'' limitations, on the one 
hand, are required, there is also caselaw indicating that in many 
situations it is appropriate for the EPA to account for the practical 
realities of technology. For example, in Essex Chemical v. Ruckelshaus, 
486 F.2d 427, 433 (DC Cir. 1973), the DC Circuit acknowledged that in 
setting standards under CAA section 111 ``variant provisions'' such as 
provisions allowing for upsets during startup, shutdown and equipment 
malfunction ``appear necessary to preserve the reasonableness of the 
standards as a whole and that the record does not support the `never to 
be exceeded' standard currently in force.'' See also, Portland Cement 
Association v. Ruckelshaus, 486 F.2d 375 (DC Cir. 1973). Though 
intervening caselaw such as Sierra Club v. EPA and the CAA 1977 
amendments undermine the relevance of these cases today, they support 
EPA's view that a system that incorporates some level of flexibility is 
reasonable. The affirmative defense simply provides for a defense to 
civil penalties for excess emissions that are proven to be beyond the 
control of the source. By incorporating an affirmative defense, the EPA 
has formalized its approach to upset events. In a Clean Water Act 
setting, the Ninth Circuit required this type of formalized approach 
when regulating ``upsets beyond the control of the permit holder.'' 
Marathon Oil Co. v. EPA, 564 F.2d 1253, 1272-73 (9th Cir. 1977). But 
see, Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057-58 (DC Cir. 1978) 
(holding that an informal approach is adequate). The affirmative 
defense provisions give the EPA the flexibility to both ensure that its 
emission limitations are ``continuous'' as required by 42 U.S.C. 
section 7602(k), and account for unplanned upsets and thus support the 
reasonableness of the standard as a whole.

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

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

IV. Summary of Significant Changes Since Proposal

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

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

[[Page 70839]]

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

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

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

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

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

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

[[Page 70840]]

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

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

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

C. Other Changes Since Proposal

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

[[Page 70841]]

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

V. Summary of Significant Comments and Responses

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

A. Timeline for Compliance

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

[[Page 70842]]

the two-year timeframe rests on faulty grounds: Factually, it is 
inconsistent with the Consent Decree requirements, and legally, it 
unlawfully attempts to speed up the previously-established compliance 
timeframe for the lead NAAQS.
    Response: Section 112(i)(3) establishes the compliance timeframe 
for any standard issued under section 112 for existing sources and 
provides that the compliance date shall be as expeditiously as 
practicable but no later than 3 years following the effective date of 
the standard. Section 112(f)(4), however, expressly provides more 
specific requirements for standards issued under section 112(f) and 
thus for section 112(f) standards those more prescriptive requirements 
govern in place of the compliance requirements in section 112(i)(3). 
Specifically, section 112(f)(4) provides that a source cannot emit an 
air pollutant in violation of a standard issued under subsection (f) 
except that the standard will not apply until 90 days after its 
effective date. It also provides that the Administrator may grant a 
waiver for a period of up to 2 years from the effective date if 
necessary for the installation of controls and if measures will be 
taken in the interim to ensure public health is protected from imminent 
endangerment. Thus, for standards applicable to the furnace and 
refinery area emissions and the work practice standards to address 
fugitive emissions, which were issued under section 112(f), the 
compliance period may not exceed two years from the effective date of 
the standard. We are providing 90 days for compliance with the work 
practice standards and two years for compliance with the standards 
applicable to the furnace and refinery area stacks.
    The main stack emission limit, proposed under 112(d)(6), is subject 
to the section 112(i)(3) compliance provisions. We are establishing an 
emission standard of 0.97 lb Pb/ton of lead produced that would replace 
the existing standard of 1 lb Pb/ton of lead produced. This standard is 
based on the level of emissions that the source is already achieving in 
practice and thus no additional controls would be needed to meet that 
emission limit for the main stack. For that reason, we are requiring 
compliance with the new limit for the main stack within 60 days of the 
effective date of this final rule as this timeframe constitutes 
compliance ``as expeditiously as practicable.''
    Concerning section 112(i)(5), the provision only applies to 
standards promulgated pursuant to section 112(d) (and not 112(f)) and 
also only where a source achieves a 90% reduction (95% in the case of 
HAPs that are particulate matter) prior to the proposal of the section 
112(d) standard. Thus, this provision does not apply to the standards 
established under 112(f) in this final rule. With regard to the 
emission standard proposed for the main stack, stack test data indicate 
that the main stack emissions are substantially higher than the 14 tons 
per year value cited by the commenter. Based on performance test data, 
the facility has not achieved the reductions in emissions required to 
apply the alternative compliance dates in section 112(i)(5).
    Section 112(h)(3) allows the Administrator through notice and 
comment rulemaking to accept an alternative means of emission limit in 
place of a work practice standard established under 112(h)(1) if the 
owner or operator of a source establishes that such alternative means 
will achieve reductions at least equivalent to those that would be 
achieved by the work practice standard. It is unclear precisely what 
the commenter is suggesting with regard to this provision. However, it 
seems they may be suggesting that the new hydrometallurgical process 
that they plan to install after they close the pyrometallurgical 
processes should be considered an alternative means of compliance with 
the work practice standard. It is unclear how this process would 
address the emissions covered by the work practice standards we are 
establishing which are intended to address current fugitive dust 
emissions from the facility. Those emissions are almost exclusively 
from lead entrenched in open areas and the installation of a new 
process for lead processing would not appear to affect those emissions. 
Moreover, we understand that the new hydrometallurgical process won't 
be operational until sometime after the compliance date for the work 
practice standards we are requiring. Thus, even if that process would 
address in whole or in part the fugitive dust emissions addressed 
through the work practice standards, it would not be an appropriate 
substitute in the absence of being able to achieve the necessary 
reductions within the compliance period. We note that our determination 
here does not preclude Doe Run from submitting additional information 
that may further support a demonstration under section 112(h)(3) and 
for which we could take further action in a separate rulemaking.
    As to the concerns the commenter raises about this situation being 
unique, we do not disagree. However, the statute is clear that the 
maximum compliance period for standards issued pursuant to section 
112(f) is two years. The commenter submits no facts or information that 
supports a legal basis for providing a longer period for compliance for 
the refining and furnace area stack limits and for the work practice 
standards to minimize f