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Proposed Rule2025-19155

National Emission Standards for Hazardous Air Pollutants From Secondary Lead Smelting Technology Review

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Published

October 1, 2025

Issuing agencies

Environmental Protection Agency

Abstract

The U.S. Environmental Protection Agency (EPA) is proposing amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Secondary Lead Smelting source category ("Secondary Lead Smelting NESHAP") under Clean Air Act (CAA) section 112. The EPA did not identify any cost-effective developments in practices, processes, and/or control technologies and is not proposing changes to the Secondary Lead Smelting NESHAP as a result of the technology review. The EPA is proposing to address previously unregulated hazardous air pollutants (HAP) from this source category. We are also addressing outstanding petition issues from the 2012 Secondary Lead Smelting (RTR), hereafter referred to as the 2012 RTR. In response to the petitions, we are taking comment on our conclusion in the 2012 RTR that the Secondary Lead Smelting NESHAP provides an ample margin of safety to protect public health and on two additional provisions. In addition, the EPA is proposing revisions related to emissions during periods of startup, shutdown, and malfunction; to add requirements for electronic reporting; to revise monitoring requirements; and to make other minor technical revisions.

Full Text

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<title>Federal Register, Volume 90 Issue 188 (Wednesday, October 1, 2025)</title>
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[Federal Register Volume 90, Number 188 (Wednesday, October 1, 2025)]
[Proposed Rules]
[Pages 47268-47286]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-19155]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2025-0078; FRL-5774-01-OAR]
RIN 2060-AS32

National Emission Standards for Hazardous Air Pollutants From
Secondary Lead Smelting Technology Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing
amendments to the National Emission Standards for Hazardous Air
Pollutants (NESHAP) for the Secondary Lead Smelting source category
(``Secondary Lead Smelting NESHAP'') under Clean Air Act (CAA) section
112. The EPA did not identify any cost-effective developments in
practices, processes, and/or control technologies and is not proposing
changes to the Secondary Lead Smelting NESHAP as a result of the
technology review. The EPA is proposing to address previously
unregulated hazardous air pollutants (HAP) from this source category.
We are also addressing outstanding petition issues from the 2012
Secondary Lead Smelting (RTR), hereafter referred to as the 2012 RTR.
In response to the petitions, we are taking comment on our conclusion
in the 2012 RTR that the Secondary Lead Smelting NESHAP provides an
ample margin of safety to protect public health and on two additional
provisions. In addition, the EPA is proposing revisions related to
emissions during periods of startup, shutdown, and malfunction; to add
requirements for electronic reporting; to revise monitoring
requirements; and to make other minor technical revisions.

DATES: Comments must be received on or before November 17, 2025. Under
the Paperwork Reduction Act (PRA), comments on the information
collection provisions are best assured of consideration if the Office
of Management and Budget (OMB) receives a copy of your comments on or
before October 31, 2025.
Public hearing: If anyone contacts us requesting a public hearing
on or before October 6, 2025, we will hold a virtual public hearing.
See SUPPLEMENTARY INFORMATION for information on requesting and
registering for a public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2025-0078, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.

[[Page 47269]]

<bullet> Email: <a href="/cdn-cgi/l/email-protection#6a0b470b040e4718470e0509010f1e2a0f1a0b440d051c">[email&#160;protected]</a>. Include Docket ID No. EPA-
HQ-OAR-2025-0078 in the subject line of the message.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Docket ID No. EPA-HQ-OAR-2025-0078, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
<bullet> Hand/Courier Delivery: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday-
Friday (except Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For questions about this proposed
action, contact U.S. EPA, Attn: Amber Wright, Mail Drop: D243-02, 109
T.W. Alexander Drive, P.O. Box 12055, Research Triangle Park, North
Carolina 27711; telephone number: (919) 541-4680; and email address:
<a href="/cdn-cgi/l/email-protection#4611342f212e3268072b2423340623362768212930">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:
Participation in virtual public hearing. To request a virtual
public hearing, contact the public hearing team at (888) 372-8699 or by
email at <a href="/cdn-cgi/l/email-protection#f9aaa9a9bd898c9b95909a919c988b90979eb99c8998d79e968f">[email&#160;protected]</a>. If requested, the hearing will be
held via virtual platform on October 16, 2025. The hearing will convene
at 11:00 a.m. Eastern Time (ET) and will conclude at 3:00 p.m. ET. The
EPA may close a session 15 minutes after the last pre-registered
speaker has testified if there are no additional speakers. The EPA will
announce further details at <a href="https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air">https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air</a>.
If a public hearing is requested, the EPA will begin pre-
registering speakers for the hearing no later than 1 business day after
a request has been received. To register to speak at the virtual
hearing, please use the online registration form available at <a href="https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air">https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air</a> or contact the public
hearing team at (888) 372-8699 or by email at
<a href="/cdn-cgi/l/email-protection#98cbc8c8dce8edfaf4f1fbf0fdf9eaf1f6ffd8fde8f9b6fff7ee">[email&#160;protected]</a>. The last day to pre-register to speak at the
hearing will be October 14, 2025. Prior to the hearing, the EPA will
post a general agenda that will list pre-registered speakers at:
<a href="https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air">https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air</a>.
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing. However, please plan for the
hearings to run either ahead of schedule or behind schedule.
Each commenter will have 4 minutes to provide oral testimony. The
EPA also recommends submitting the text of your oral testimony as
written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral testimony and
supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at <a href="https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air">https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air</a>. While the EPA expects the hearing to go forward as set
forth above, please monitor our website or contact the public hearing
team at (888) 372-8699 or by email at <a href="/cdn-cgi/l/email-protection#51020101152124333d383239343023383f36113421307f363e27">[email&#160;protected]</a> to
determine if there are any updates. The EPA does not intend to publish
a document in the Federal Register (FR) announcing updates.
If you require the services of a translator or special
accommodation such as audio description, please pre-register for the
hearing with the public hearing team and describe your needs by October
8, 2025. The EPA may not be able to arrange accommodations without
advanced notice.
Docket. The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2025-0078. All documents in the docket are
listed in <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Although listed, 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 as PDF
versions that can only be accessed on the EPA computers in the docket
office reading room. Certain databases and physical items cannot be
downloaded from the docket but may be requested by contacting the
docket office at 202-566-1744. The docket office has up to 10 business
days to respond to these requests. With the exception of such material,
publicly available docket materials are available electronically at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2025-0078. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal
information provided, unless the comment includes information claimed
to be CBI or other information whose disclosure is restricted by
statute. Do not submit electronically to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
any information that you consider to be CBI or other information whose
disclosure is restricted by statute. This type of information should be
submitted as discussed below.
The EPA may publish any comment received to its public docket.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
The <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> website allows you to submit your
comment anonymously, which means the EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email comment directly to the EPA without going through
<a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, your email address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the internet. If you submit an
electronic comment, the EPA recommends that you include your name and
other contact information in the body of your comment and with any
digital storage media you submit. If the EPA cannot read your comment
due to technical difficulties and cannot contact you for clarification,
the EPA may not be able to consider your comment. Electronic files
should not include

[[Page 47270]]

special characters or any form of encryption and should be free of any
defects or viruses. For additional information about the EPA's public
docket, visit the EPA Docket Center homepage at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
The EPA is soliciting comment on numerous aspects of this proposed
rule. The EPA has indexed each comment solicitation with an identifier
(e.g., ``Question 1, Question 2, . . .) to provide a consistent
framework for effective and efficient provision of comments.
Accordingly, we ask that commenters include the corresponding
identifier when providing comments relevant to that comment
solicitation. We ask that commenters include the identifier in either a
heading, or within the text of each comment (e.g., ``In response to
Question 1, . . .'') to make clear which comment solicitation is being
addressed. We emphasize that we are not limiting comment to these
identified areas and encourage provision of any other comments relevant
to this proposal.
Submitting CBI. Do not submit information containing CBI to the EPA
through <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA, note the docket ID,
mark the outside of the digital storage media as CBI, and identify
electronically within the digital storage media the specific
information that is claimed as CBI. In addition to one complete version
of the comments that includes information claimed as CBI, you must
submit a copy of the comments that does not contain the information
claimed as CBI directly to the public docket through the procedures
outlined in Instructions above. If you submit any digital storage media
that does not contain CBI, mark the outside of the digital storage
media clearly that it does not contain CBI and note the docket ID.
Information not marked as CBI will be included in the public docket and
the EPA's electronic public docket without prior notice. Information
marked as CBI will not be disclosed except in accordance with
procedures set forth in 40 Code of Federal Regulations (CFR) part 2.
Our preferred method to receive CBI is for it to be transmitted
electronically using email attachments, File Transfer Protocol (FTP),
or other online file sharing services (e.g., Dropbox, OneDrive, Google
Drive). Electronic submissions must be transmitted directly to the
Office of Air Quality Planning and Standards (OAQPS) CBI Office at the
email address <a href="/cdn-cgi/l/email-protection#a5cac4d4d5d6fac6c7cce5c0d5c48bc2cad3">[email&#160;protected]</a> and, as described above, should include
clear CBI markings and note the docket ID. If assistance is needed with
submitting large electronic files that exceed the file size limit for
email attachments, and if you do not have your own file sharing
service, please email <a href="/cdn-cgi/l/email-protection#741b150504072b17161d341104155a131b02">[email&#160;protected]</a> to request a file transfer
link. If sending CBI information through the postal service, please
send it to the following address: U.S. EPA, Attn: OAQPS Document
Control Officer, Mail Drop: C404-02, 109 T.W. Alexander Drive, P.O. Box
12055, Research Triangle Park, North Carolina 27711, Attention Docket
ID No. EPA-HQ-OAR-2025-0078. The mailed CBI material should be double
wrapped and clearly marked. Any CBI markings should not show through
the outer envelope.
Preamble acronyms and abbreviations. Throughout this preamble the
use of ``we,'' ``us,'' or ``our'' is intended to refer to the EPA. We
use multiple acronyms and terms in this preamble. While this list may
not be exhaustive, to ease the reading of this preamble and for
reference purposes, the EPA defines the following terms and acronyms
here:

ABR Association of Battery Recyclers
ANSI American National Standards Institute
ASME American Society of Mechanical Engineers
BACT best available control technology
CAA Clean Air Act
COS carbonyl sulfide
CBI Confidential Business Information
CDX Central Data Exchange
CEDRI Compliance and Emissions Data Reporting Interface
CEMS continuous emissions monitoring systems
CFR Code of Federal Regulations
Cl2 chlorine
CMS continuous monitoring system
CO2 carbon dioxide
D/F dioxins and furans
EPA Environmental Protection Agency
FR Federal Register
FTP File Transfer Protocol
GACT generally available control technology
gr/dscf grains per dry standard cubic foot
HAP hazardous air pollutant(s)
HQ hazard quotient
HCl hydrochloric acid
HEPA high-efficiency particulate air
ICR information collection request
LAER lowest achievable emission rate
LEAN Louisiana Environmental Action Network
MACT maximum achievable control technology
mg/dscm milligrams per dry standard cubic meter
mm millimeters
NAAQS National Ambient Air Quality Standards
NAICS North American Industry Classification System
NEI National Emissions Inventory
NESHAP National Emission Standards for Hazardous Air Pollutants
NOCS Notification of Compliance Status
NRDC Natural Resources Defense Council
NSSN National Standards Service Network
NTTAA National Technology Transfer and Advancement Act
OAQPS Office of Air Quality Planning and Standards
OMB Office of Management and Budget
O2 oxygen
PM particulate matter
ppmv parts per million by volume
PRA Paperwork Reduction Act
PV present value
PVC polyvinyl chloride
RACT reasonably available control technology
RATA relative accuracy test audit
REL reference exposure level
RFA Regulatory Flexibility Act
RTR Risk and Technology Review
SBA Small Business Administration
SSM startup, shutdown, and malfunction
TEQ toxic equivalency quotient
THC total hydrocarbons
tpy tons per year
UMRA Unfunded Mandates Reform Act
UPL upper prediction limit
VCS voluntary consensus standards
WESP wet electrostatic precipitator

Table of Contents

I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
II. Background
A. What is the statutory authority for this action?
B. What is this source category and how does the current NESHAP
regulate its HAP emissions?
C. What data collection activities were conducted to support
this action?
D. What other relevant background information and data are
available?
E. How does the EPA perform the technology review?
III. Analytical Results and Proposed Decisions
A. What are the results and proposed decisions based on our
technology review, and what is the rationale for those decisions?
B. What other actions are we proposing, and what is the
rationale for those actions?
C. What compliance dates are we proposing, and what is the
rationale for the proposed compliance dates?
IV. Summary of Cost, Environmental, and Economic Impacts
A. What are the affected sources?
B. What are the air quality impacts?
C. What are the cost impacts?
D. What are the economic impacts?
E. What are the benefits?
F. What analysis of children's environmental health did we
conduct?
V. Request for Comments
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review

[[Page 47271]]

B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act (NTTAA)

I. General Information

A. Does this action apply to me?

The source category that is the subject of this proposal is
Secondary Lead Smelting regulated under 40 CFR part 63, subpart X. The
North American Industry Classification System (NAICS) code for the
secondary lead smelting industry is 331492. This category and NAICS
code are not intended to be exhaustive but rather provide a guide for
readers regarding the entities that this proposed action is likely to
affect. The proposed standards, if finalized, would be directly
applicable to the affected sources. Federal, state, local, and Tribal
government entities do not own or operate sources that would be
affected by this proposed action. As defined in the Initial List of
Categories of Sources Under Section 112(c)(1) of the Clean Air Act
Amendments of 1990 (57 FR 31576; July 16, 1992) and Documentation for
Developing the Initial Source Category List, Final Report (EPA-450/3-
91-030, July 1992), the secondary lead smelting source category
consists of any facility engaged in the production of purified lead
from lead scrap by melting and separating lead from metal and non-
metallic contaminants and by reducing lead compounds to elemental lead.
The category includes processes associated with secondary lead smelting
such as battery breaking, smelting in reverberatory blast, rotary and
electric furnaces, refining, alloying, and casting.

B. Where can I get a copy of this document and other related
information?

In addition to being available in the docket, an electronic copy of
this action is available on the internet. In accordance with 5 U.S.
Code (U.S.C.) 553(b)(4), a brief summary of this rule may be found at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, Docket ID No. EPA-HQ-OAR-2025-0078.
Following signature by the EPA Administrator, the EPA will post a copy
of this proposed action at <a href="https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air">https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air</a>. Following publication in the Federal Register, the EPA
will post the Federal Register version of the proposal and key
technical documents at this same website.
A memorandum showing the rule edits that would be necessary to
incorporate the changes to 40 CFR part 63, subpart X proposed in this
action is available in the docket (Docket ID No. EPA-HQ-OAR-2025-0078).
Following signature by the EPA Administrator, the EPA also will post a
copy of this document to <a href="https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air">https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelting-national-emissions-standards-hazardous-air</a>.

II. Background

A. What is the statutory authority for this action?

The statutory authority for this action is provided by CAA section
112, as amended (42 U.S.C. 7412). CAA section 112 establishes a two-
stage regulatory process to develop standards for emissions of HAP from
stationary sources. Generally, the first stage involves establishing
technology-based standards that reflect the maximum achievable control
technology (MACT) or an appropriate alternative.\1\ The second stage
involves evaluating those standards within eight years to determine
whether additional standards are needed to address any remaining risk
associated with HAP emissions.\2\ This second stage is commonly
referred to as the ``residual risk review.'' In addition to the
residual risk review, CAA section 112 also requires the EPA to review
the standards every eight years and ``revise as necessary'' taking into
account ``developments in practices, processes, or control
technologies.'' \3\ This review is commonly referred to as the
``technology review,'' and is the subject of this proposal unless
otherwise indicated. The discussion that follows identifies the most
relevant statutory sections and briefly explains the contours of the
methodology used to implement these statutory requirements.
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\1\ 42 U.S.C. 7412(d)(1)-(4).
\2\ 42 U.S.C. 7412(f)(2).
\3\ Id. 7412(d)(6).
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In the first stage of CAA section 112 standard-setting process, the
EPA promulgates technology-based standards under CAA section 112(d) for
categories of sources identified as emitting one or more of the HAP
listed in CAA section 112(b). Sources of HAP emissions are either major
sources or area sources, and CAA section 112 establishes different
requirements for major source standards and area source standards.
``Major sources'' are those that emit or have the potential to emit 10
tons per year (tpy) or more of a single HAP or 25 tpy or more of any
combination of HAP.\4\ All other sources are ``area sources.'' \5\ For
major sources, CAA section 112(d)(2) provides that the technology-based
NESHAP must reflect the maximum degree of emission reductions of HAP
achievable (after considering cost, energy requirements, and non-air
quality health and environmental impacts). These standards are commonly
referred to as MACT standards. CAA section 112(d)(3) also establishes a
minimum control level for MACT standards, known as the MACT ``floor,''
based on emission controls achieved in practice by the best performing
sources. In certain instances, as provided in CAA section 112(h), the
EPA may set work practice standards in lieu of numerical emission
standards. The EPA also considers control options that are more
stringent than the floor.\6\ Standards more stringent than the floor
are commonly referred to as ``beyond-the-floor'' standards. For area
sources, CAA section 112(d)(5) allows the EPA to set standards based on
generally available control technologies or management practices (GACT
standards) in lieu of MACT standards. For categories of major sources
and any area source categories subject to MACT standards, the second
stage focuses on identifying and addressing any remaining (i.e.,
``residual'') risk within eight years pursuant to CAA section 112(f)
and concurrently conducting a technology review pursuant to CAA section
112(d)(6). For categories of area sources subject to GACT standards,
there is no requirement to address residual risk, but, similar to the
major source categories, the technology review is required every eight
years.\7\
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\4\ Id. 7412(a)(1).
\5\ Id. 7412(a)(2).
\6\ Id. 7412(d)(2).
\7\ Id. 7412(d)(6).
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CAA section 112(d)(6) requires the EPA to review standards
promulgated under CAA section 112 and revise them ``as necessary
(taking into account developments in practices, processes, and control
technologies)'' no less often than every eight years. In conducting
this review, which we call the ``technology review,'' the EPA is not
required to recalculate the MACT floors that were established in
earlier

[[Page 47272]]

rulemakings.\8\ The EPA may consider cost in deciding whether to revise
the standards pursuant to CAA section 112(d)(6).\9\
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\8\ Ass'n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667 (D.C.
Cir. 2013); Natural Resources Defense Council (NRDC) v. EPA, 529
F.3d 1077, 1084 (D.C. Cir. 2008).
\9\ 42 U.S.C. 7412(d)(2), (6); Ass'n of Battery Recyclers, 716
F.3d at 673-74.
---------------------------------------------------------------------------

B. What is this source category and how does the current NESHAP
regulate its HAP emissions?

The secondary lead smelting source category is defined as any
facility at which lead-bearing scrap materials (typically but not
limited to lead acid batteries) are recycled by smelting into elemental
lead or lead alloys.\10\ The Secondary Lead Smelting NESHAP applies to
major and area sources. 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.\11\ The secondary lead smelting process consists of (1)
breaking lead-acid batteries and separating the lead-bearing materials
from the other materials including plastic and acid electrolyte; (2)
melting lead metal and reducing lead compounds to lead metal in the
smelting furnace; and (3) refining and alloying the lead to customer
specifications. secondary lead smelting releases HAP as process,
process fugitive, and fugitive dust emissions. Process emissions are
the exhaust gases from feed dryers and from blast, reverberatory,
rotary, and electric furnaces. The HAP in process emissions are
primarily composed of metals, including lead compounds with arsenic,
cadmium, and other metals. The emissions may also include organic
compounds that result from incomplete combustion of coke that is
charged to the smelting furnaces as a fuel or fluxing agent, natural
gas, and/or small amounts of plastics or other materials that get fed
into the furnaces along with the lead bearing materials. Process
fugitive emissions occur at various points during the smelting process
(such as during charging and tapping of furnaces) and are composed
primarily of metal HAP. Fugitive dust emissions result from the
entrainment of HAP in ambient air due to material handling, vehicle
traffic, wind erosion from storage piles, and other various activities.
Fugitive dust emissions are composed of metal HAP only.\12\
---------------------------------------------------------------------------

\10\ 40 CFR 63.542.
\11\ 40 CFR 63.541.
\12\ Secondary Lead Smelting Background Information Document for
Proposed Standards, Docket ID No. A-92-43, III-B-004, June, 1992.
---------------------------------------------------------------------------

Secondary lead smelting accounts for more than half of all lead
produced around the world and there are currently no operating primary
lead smelting facilities in the United States. The United States total
lead consumption has remained relatively constant from 2020 to 2024,
averaging 1,500 thousand metric tons. In 2024, an estimated 1,000
thousand metric tons of secondary lead was produced, an amount
equivalent to 71 percent of apparent domestic consumption.\13\ Nearly
all secondary lead is recovered from old scrap, mostly lead-acid
batteries. Since the 2012 rulemaking, five secondary lead facilities
have closed. We do not anticipate any new secondary lead smelters, as
currently defined, to be built in the next few years.
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\13\ U.S. Geological Survey. (2025). Mineral Commodity
Summaries, Lead.
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The EPA originally promulgated the Secondary Lead Smelting NESHAP
in 1995.\14\ In 2012, the EPA promulgated amendments to the Secondary
Lead Smelting NESHAP to address the results of the RTR. As amended in
2012, the NESHAP specifies that facilities must limit emissions of lead
compounds (as a surrogate for all non-mercury metal HAP) to an outlet
concentration of 1.0 milligrams per dry standard cubic meter (mg/dscm)
(0.00043 grains per dry standard cubic foot (gr/dscf)) and limit the
flow-weighted average lead concentration to 0.20 mg/dscm (0.000087 gr/
dscf) or less.\15\ \16\ For process vents at new sources, the NESHAP
limits lead compound emissions to 0.20 mg/dscm (0.000087 gr/dscf) or
less.\17\ The Secondary Lead Smelting NESHAP also regulates total
hydrocarbon (THC) as a surrogate for non-dioxin and furan organic HAP
and imposes dioxins and furans (D/F) limits for reverberatory,
electric, blast, and collocated blast and reverberatory furnaces.\18\
The NESHAP also requires that secondary lead facilities operate any
sources of fugitive lead emissions within total enclosures that are
maintained under negative pressure and vented to a control device and
to conduct work practices to minimize fugitive dust emissions.\19\
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\14\ 60 FR 32587 (June 23, 1995) (codified at 40 CFR part 63,
subpart X).
\15\ 77 FR 556 (January 5, 2012).
\16\ 40 CFR 63.543(a).
\17\ Id. 63.543(b).
\18\ Id. 63.543(c)-(f) and Table 2 to 40 CFR part 63, subpart X.
\19\ 40 CFR 63.544-45.
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C. What data collection activities were conducted to support this
action?

To support this action, the EPA created a current list of secondary
lead smelting facilities by updating the facility list developed to
support the 2012 RTR. We referenced the National Emissions Inventory
(NEI) \20\ and confirmed the list with the secondary lead smelting
industry association, the Association of Battery Recyclers (ABR). In
November 2023, the EPA issued a CAA section 114 information request to
six companies that collectively own ten of the 11 facilities in the
source category.\21\ These companies were selected because they were
operating, a majority of the source category and represented all
furnace types and configurations. The CAA section 114 information
request collected comprehensive information regarding process
equipment, control technologies, point and fugitive emissions, and
other aspects of facility operations. Additionally, as part of the CAA
section 114 information request, we requested stack testing for certain
emission sources (e.g., rotary furnaces) and six months of fenceline
monitoring for arsenic and lead. Responses not claimed as CBI by
respondents and the list of facilities that are part of the secondary
lead smelting source category are available in the docket for this
action.\22\
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\20\ U.S. Environmental Protection Agency (Last Updated April
16, 2025). National Emissions Inventory (NEI): <a href="https://www.epa.gov/air-emissions-inventories/national-emissions-inventory-nei">https://www.epa.gov/air-emissions-inventories/national-emissions-inventory-nei</a>.
\21\ 42 U.S.C. 7414.
\22\ Docket ID No. EPA-HQ-OAR-2025-0078.
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D. What other relevant background information and data are available?

To supplement the data and information obtained through the CAA
section 114 information request, we reviewed the EPA's Reasonably
Available Control Technology (RACT)/Best Available Control Technology
(BACT)/Lowest Achievable Emission Rate (LAER) Clearinghouse (RBLC). The
EPA established the RBLC to provide a central database of air pollution
technology information (including technologies required in source-
specific permits) to promote the sharing of information among
permitting agencies and to aid in identifying future control technology
options that might apply to numerous sources within a category or apply
only on a source-by-source

[[Page 47273]]

basis.\23\ The EPA also reviewed facility operating permits issued by
state regulatory agencies. We also examined regional data for the lead
national ambient air quality standards (NAAQS) when evaluating
fenceline monitoring for this source category. More information can be
found in the Clean Air Act Section 112(d)(6) Technology Review
Memorandum for Secondary Lead Smelting available in the docket for this
rulemaking.\24\ Finally, the EPA reviewed previous test reports
obtained from a CAA section 114 information request in 2010 that were
used to inform the 2012 RTR.
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\23\ U.S. Environmental Protection Agency. (Last updated Oct. 4,
2024). RACT/BACT/LAER Clearinghouse (RBLC) Basic Information:
<a href="https://www.epa.gov/catc/ractbactlaer-clearinghouse-rblc-basic-information">https://www.epa.gov/catc/ractbactlaer-clearinghouse-rblc-basic-information</a>.
\24\ Docket ID No. EPA-HQ-OAR-2025-0078.
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E. How does the EPA perform the technology review?

Our technology review primarily focuses on the identification and
evaluation of developments in practices, processes, and control
technologies that have occurred since the MACT standards were
promulgated. Where we identify such developments, we analyze their
technical feasibility, estimated costs, energy implications, and non-
air environmental impacts.\25\ We also consider the emission reductions
associated with the potential application of each development. This
analysis informs our decision whether it is ``necessary'' to revise the
emissions standards.\26\ In addition, we consider the appropriateness
of applying controls to new sources versus retrofitting existing
sources. For this exercise, we consider any of the following to be a
``development'': \27\
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\25\ 42 U.S.C. 7412(d)(2).
\26\ Id. 7412(d)(6).
\27\ 76 FR 29032, 29047-29048 (May 19, 2011); see also Nat'l
Ass'n for Surface Finishing v. EPA, 795 F.3d 1, 11 (D.C. Cir. 2015)
(upholding EPA's interpretation of what is considered
``developments'' under CAA section 112(d)(6) and deferring to EPA's
methodology and balancing decisions for a technology review under
the Skidmore standard of review).
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<bullet> Any add-on control technology or other equipment that was
not identified and considered during development of the original MACT
standards;
<bullet> Any improvements in add-on control technology or other
equipment (that were identified and considered during development of
the original MACT standards) that could result in additional emissions
reduction;
<bullet> Any work practice or operational procedure that was not
identified or considered during development of the original MACT
standards;
<bullet> Any process change or pollution prevention alternative
that could be broadly applied to the industry and that was not
identified or considered during development of the original MACT
standards; and
<bullet> Any significant changes in the cost (including cost
effectiveness) of applying controls (including controls the EPA
considered during the development of the original MACT standards).
In addition to reviewing the practices, processes, and control
technologies that were considered at the time we last updated the
NESHAP, we review a variety of data sources in our investigation of
potential practices, processes, or controls to consider. Pursuant to
the D.C. Circuit's decision in Louisiana Environmental Action Network
(LEAN) v. EPA, 955 F.3d 1088 (D.C. Cir. 2020), we also review available
data to determine if there are any unregulated emissions of HAP within
the source category and evaluate these data for use in developing new
emission standards. The LEAN decision requires the EPA to address
regulatory gaps when reviewing MACT standards, such as missing
standards for listed air toxics known to be emitted from a major source
category.

III. Analytical Results and Proposed Decisions

A. What are the results and proposed decisions based on our technology
review, and what is the rationale for those decisions?

As described in section II.E of this preamble, the EPA's technology
review focused on the identification and evaluation of potential
developments in practices, processes, and control technologies that
have occurred since the NESHAP was last updated in 2012. In conducting
the technology review, the EPA reviewed and considered several sources
of information to determine whether there have been developments in
practices, processes, and control technologies as discussed in sections
II.C and II.D of this preamble. Pursuant to CAA section 112(d)(6), we
identified wet electrostatic precipitators (WESPs) and fenceline
monitoring as the most relevant potential developments in practices,
processes, or control technologies for consideration in this action. We
did not identify any cost-effective developments in practices,
processes, or control technologies that achieve greater HAP emission
reductions beyond the emission reductions the NESHAP already requires;
therefore, we are not proposing any changes to the Secondary Lead
Smelting NESHAP based on our technology review. Information on
additional technologies reviewed can be found in the memorandum titled:
Clean Air Act Section 112(d)(6) Technology Review Memorandum for
Secondary Lead Smelting available in the docket for this
rulemaking.\28\ The EPA is soliciting comment whether we should
consider any additional developments not addressed here or in the
technical memorandum (Question #1).
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\28\ Docket ID No. EPA-HQ-OAR-2025-0078.
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1. WESPs
The main emission sources at secondary lead smelting facilities are
process vents. Process vents route process and process fugitive
emissions to particulate matter (PM) control devices from blast,
reverberatory, rotary, and electric furnaces; refining kettles;
agglomerating furnaces; dryers; process fugitive emissions sources;
buildings containing lead bearing materials; and fugitive dust sources.
For existing sources, facilities must maintain the concentration of
lead compounds in any process vent gas at or below 1.0 mg/dscm and the
flow-weighted average concentration of lead compounds in vent gases
from the entire secondary lead smelting facility at or below 0.20 mg/
dscm.\29\ Typical controls at secondary lead smelting facilities
include baghouses (often combined with high-efficiency particulate air
(HEPA) filters), WESPs, wet scrubbers, afterburners, and dry lime
scrubbers.
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\29\ 40 CFR 63.543(a).
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In the 2012 RTR, the EPA evaluated the addition of WESPs on the
outlet of baghouses as a potential control technology for metal HAP
emissions. At that time, one out of the then 15 existing facilities had
installed a WESP. This approach involves placing a WESP on the outlet
of a baghouse for further control of metal HAP emissions and under
optimal conditions, can provide an estimated control efficiency of
greater than 99 percent. Current emissions limits for existing
facilities reflect reductions achievable using baghouses, which
typically achieve 99 percent control. Currently, three out of the now
11 existing sources have added WESPs. Collectively, these three
facilities represent a quarter of the source category. In the 2012 RTR,
the EPA estimated that installing WESPs would result in total capital
costs to the industry of $400 million and a total annualized cost of
$55 million with a cost effectiveness of about $4.0 million per ton of
metal HAP emissions reduced (mainly lead compounds) in 2009 dollars.

[[Page 47274]]

As part of this review, now that nearly a quarter of the source
category utilizes WESPs to control metal HAP emissions, we have updated
our cost estimates for installing WESPs at the 8 remaining facilities
that do not currently operate them. Updated estimates for installation
of WESPs would result in total capital costs of $621 million and a
total annualized cost of $73 million for existing sources and achieve
about 3.8 tpy in lead reductions (the surrogate for metal HAP). We
estimate the cost effectiveness would be approximately $19 million per
ton of lead reduced (in 2024 dollars).\30\ Based on the cost estimated
for the existing sources and applying this estimated cost to a
potential new source, the estimated costs to install WESPs are $78
million in capital costs and annualized costs of $9 million, and their
installation would achieve approximately 0.5 tpy of lead reduction,
with cost effectiveness of $19 million per ton of lead reduced. In the
2012 RTR, we considered $1.3 million per ton (in 2009 dollars) of lead
reduced as cost-effective for existing facilities. Based on this
analysis, we are not proposing an emission limit reflecting a baghouse
routed to WESPs for new or existing sources due to the high cost and
poor cost effectiveness. The full analysis for a baghouse routed to a
WESP can be found in the memorandum titled Clean Air Act Section
112(d)(6) Technology Review Memorandum for Secondary Lead Smelting in
the docket of this rulemaking.\31\ The EPA is soliciting comment on the
determination that a baghouse routed to a WESP is not cost-effective
(Question #2).
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\30\ CAA section 112(d)(6) does not address cost consideration
in setting MACT floors under CAA section 112(d)(3); conversely, CAA
section 112(d)(2) explicitly authorizes cost consideration in other
aspects of standard setting. However, the statute does not prescribe
a methodology for the EPA's consideration of costs under 112(d).
Where cost is a consideration for technology reviews under CAA
section 112(d)(6), EPA has historically used cost-effectiveness
(cost/ton-reduced) in supporting analyses. Ass'n of Battery
Recyclers, 716 F.3d at 673-74.
\31\ Docket ID No. EPA-HQ-OAR-2025-0078.
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2. Fenceline Monitoring
In this technology review, we evaluated fenceline monitoring as a
development in practices or procedures. Fenceline monitoring is the
practice by which monitors are placed around the perimeter of a
facility to measure the concentration of certain pollutants. Generally,
the EPA has found fenceline monitoring can sometimes be an effective
tool when fugitive or ground level releases are significant, or where
we have identified considerable uncertainties in HAP emissions
estimates from fugitive emission sources. When required in conjunction
with root cause analysis and corrective action, fenceline monitoring
can potentially reduce uncertainties associated with fugitive emissions
estimation and characterization. Other considerations include the types
of pollutants that are emitted, the availability of fenceline
monitoring measurement methods for the key pollutants, other sources of
the key pollutant near the fenceline, proximity of residences or other
areas where people could be exposed to emissions at or near facility
fencelines, and the other types of monitoring that are already required
or are being considered. For the secondary lead smelting source
category, we are not proposing fenceline monitoring requirements. For
the reasons discussed below, we are not proposing that fenceline
monitoring requirements are ``necessary'' pursuant to CAA section
112(d)(6).
In the 2012 RTR, the Agency finalized a requirement for facilities
to operate sources of fugitive lead emissions within total enclosures
that are maintained under negative pressure and vented to a PM control
device to address fugitive metal HAP emissions that drove the
unacceptable levels of risk identified by the Agency.\32\ Our
evaluation during this current technology review determined that the
total enclosure requirements and the stack and flow weighted average
lead limits promulgated in the 2012 RTR have significantly reduced
ground level fugitives and allow us to accurately estimate lead
emissions from the source category based on stack test data. The CAA
section 114 information request for fenceline monitoring data confirmed
our 2012 estimates that lead levels at the fenceline would be below the
lead NAAQS 3-month rolling average limit of 0.15 micrograms per cubic
meter ([micro]g/m\3\) for most facilities. The CAA section 114 data
showed lead levels at the fenceline were well below the NAAQS for all
but one facility, which is currently under a state consent agreement.
This represents significant improvement from data collected for the
2012 RTR, where nine of fifteen facilities were modeled to be above the
NAAQS at the fenceline pre-control. While there is no NAAQS for
arsenic, the EPA compared measured arsenic concentrations to the
chronic inhalation reference exposure level (REL), which is used to
estimate population risk due to inhalation of arsenic. All average
daily arsenic concentrations were below the chronic inhalation REL of
0.015 [micro]g/m\3\. Additionally, we compared the fenceline monitoring
results to the operating lead NAAQS monitors and found the results
aligned. The community NAAQS monitors near most facilities detect
fugitive and stack emissions and are as effective if not more effective
than fenceline monitors. Additionally, secondary lead smelting
facilities are required to have bag leak detection systems \33\ and
comply with differential pressure monitoring \34\ requirements, which
identify potential situations of excess lead emissions and assist with
root cause analysis and corrective action more quickly than a fenceline
monitoring program.
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\32\ 40 CFR 63.544(a).
\33\ 40 CFR 63.548 (e).
\34\ 40 CFR 63.548 (k).
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Finally, the EPA does not have a fenceline monitoring method that
has been proposed or promulgated for metals. If the EPA were to require
fenceline monitoring in a rule for metals, facilities would be unable
to conduct such monitoring until a method has been promulgated. To
conduct the CAA section 114 information request sampling, we relied on
a common ambient monitoring method for multi-metals for the
analysis.35 36 While these methods are robust and
appropriate for ambient trend applications, the EPA needs to further
investigate and revise these approaches for a stationary source
regulatory program to ensure improved precision and accuracy in the
method. This is similar to how EPA Method 327 \37\ was developed from
TO-15A.
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\35\ Reference Method for the Determination of Suspended
Particulates in the Atmosphere (High Volume Method). 40 CFR part 50,
appendix B.
\36\ U.S. Environmental Protection Agency. (Last updated June
1999). IO Compendium Method IO-3.5: Compendium of Methods for the
Determination of Inorganic Compounds in Ambient Air: Determination
of Metals in Ambient Particulate Matter Using Inductively Coupled
Plasma/Mass Spectrometry (ICP/MS): https://www.epa.gov/esam/epa-io-
inorganic-compendium-method-io-35-determination-metals-ambient-
particulate-matter-
using#:~:text=The%20EPA%20IO%203.5%20method%20is%20a,total%20metal%20
component%20in%20prepared%20air%20samples.
\37\ 88 FR 25413 (April 25, 2023). 40 CFR part 63, appendix A.
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The EPA is not proposing to include fenceline monitoring in this
rulemaking because the process fugitives are well controlled due to the
total enclosure requirements of the NESHAP, several monitoring programs
are already in place, such as bag leak detection systems at secondary
lead facilities and NAAQS monitors in many communities surrounding
secondary lead smelters, and currently there is not a promulgated
fenceline monitoring method for metals.\38\ The EPA is soliciting
comment

[[Page 47275]]

on our determination not to propose fenceline monitoring for the
secondary lead smelting source category (Question #3).
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\38\ For more information regarding fenceline monitoring see the
memorandum titled: Clean Air Act Section 112(d)(6) Technology Review
Memorandum for Secondary Lead Smelting available in the docket for
this rulemaking.
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B. What other actions are we proposing, and what is the rationale for
those actions?

In this proposal, we are proposing actions to address unregulated
HAP pursuant to the D.C. Circuit's decision in LEAN, various technical
matters, and outstanding petition issues.
Based on a review of available information pursuant to the LEAN
decision, we are proposing the following: an emission limit based on
MACT for THC (as a surrogate for non-D/F organic HAP) and D/F for
collocated rotary and reverberatory furnaces; to add a definition for
collocated rotary and reverberatory furnaces; THC as a surrogate for
carbonyl sulfide (COS) emissions; and that hydrochloric acid (HCl) and
chlorine (Cl<INF>2</INF>) emissions are so minimal as to be considered
de minimis, and therefore the EPA is not requiring standards for those
pollutants.
Additionally, we are proposing a 24-month performance test
extension request will be deemed approved under certain circumstances
as outlined in section III.B.3. We are also proposing to increase the
averaging time for differential pressure monitors and the inclusion of
an alternative monitoring option for confirming total enclosure
compliance.
We are also addressing outstanding petition issues from the 2012
RTR. In response to the petitions, we are taking comment on our
conclusion in the 2012 RTR that the Secondary Lead Smelting NESHAP
provides an ample margin of safety to protect public health and on two
additional provisions.
Finally, we are proposing to remove affirmative defense provisions
and revise startup, shutdown, and malfunction (SSM), and electronic
recordkeeping and reporting requirements. The results and proposed
decisions, as well as the rationale for those decisions, are presented
below.
1. Proposed Actions To Address Five Unregulated HAP for Both New and
Existing Sources
As previously stated in section II.C of this preamble, while
reviewing the NEI and previous rulemakings, the EPA identified HCl,
Cl<INF>2</INF>, and COS from all furnaces and THC and D/F from rotary
furnaces as currently unregulated for this source category. The EPA
included stack testing for these unregulated HAP as part of the CAA
section 114 information request. As required by the D.C. Circuit's
decision in LEAN, we are proposing to address unregulated HAP as
discussed below.
a. THC & D/F Emissions From Rotary Furnaces
As part of the 2012 RTR, the EPA promulgated THC and D/F limits for
all furnace types except rotary furnaces. The EPA stated it was not
adopting numerical limits for THC and D/F emissions from rotary
furnaces, pending further data gathering and analysis for this furnace
type. As part of the CAA section 114 information request, the EPA
required testing of the only rotary furnace in the source category.
Based on this information request, the EPA received five THC and D/F
test runs from the one operating rotary furnace. Upon review of the
test and operational data, we determined that the rotary furnace
normally operates as a batch process as opposed to a continuous
process, and that the five individual test runs represent periods
within a batch, and not from the same batch. Therefore, the data
provided from the CAA section 114 information request do not truly
represent the normal operation of the rotary furnace, which ideally
would measure at least three separate batch test runs of 4 hours each
(or the entire length of the complete batch cycle).
Based on the data submitted in response to the CAA section 114
information request, any proposed standards for THC and D/F from the
rotary furnace alone would be determined from an incomplete batch that
would not be considered representative of normal operation. When
calculating variability using a limited dataset (in this case, one
batch) the effect of variability can be substantial. The EPA also has
previous test data from this rotary furnace from the 2012 RTR. However,
since 2012 the facility has made substantial changes to their processes
and added additional controls. Therefore, we determined that the
previous test data are also not representative of current emissions. In
addition, this rotary furnace is not a ``stand-alone'' furnace. That
is, the emissions are controlled through multiple control devices, and
the rotary furnace emissions are combined downstream with emissions
from other sources at the facility, prior to entering these control
devices. In order to propose proper and representative THC and D/F
standards from the rotary furnace, additional THC and D/F testing would
need to be conducted from the rotary furnace with at least three
complete batches, from start to finish, so that any process variability
is included and accounted for in the test data.\39\ When we determined
that the data did not include at least three separate batches, we were
unable to request additional testing prior to this proposal.
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\39\ In a given CAA section 114 information collection request
(ICR), the EPA requires that for batch process operations, sample
for a minimum sample time of 4 hours or the entire length of the
complete batch cycle, whichever is shorter. For batch cycles longer
than 4 hours, the runs should be spaced to represent the expected
range of batch emissions (for example: high, average, and low). For
the 2024 CAA section 114 test program, only one process batch was
represented in the test data. Moreover, the five THC test runs were
only 1-hour in length each.
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However, the EPA does have sufficient data to establish standards
for the combined emissions of this rotary furnace and continuously
operating reverberatory furnaces, using stack measurements taken at the
outlet of the control device (i.e., the WESP stack) that control HAP
emissions from these units. Therefore, instead of a stand-alone rotary
furnace limit, we are proposing to set a collocated rotary and
reverberatory furnace limit of 34 parts per million by volume (ppmv) of
THC and 0.28 ng/dscm D/F, expressed as toxic equivalency quotient (TEQ)
corrected to 7 percent oxygen (i.e., at 7 percent O<INF>2</INF>). We
are also proposing for D/F testing that a minimum sample volume of 3.0
dscm be collected for each run. We calculated the proposed MACT floor-
based emissions limits using the standard MACT floor development
procedures, which use the 99 percent upper prediction limit (UPL) to
incorporate variability demonstrated by the available test data from
the stack outlet of the WESP.
While these data include portions of the batch process from the
rotary furnace, we believe these limits better represent emissions from
actual operations, since the testing was performed at the location
where the combined emissions emit to the atmosphere after all control
devices, and while the facility was also continuously (and normally)
operating its reverberatory furnace and periodically (and normally)
operating its rotary furnace.
We expect the one facility where the collocated rotary and
reverberatory limits apply can meet the proposed THC and D/F limits
without installing any new pollution control devices. We anticipate
only testing, recordkeeping, and reporting costs will be incurred to
comply with the proposed THC and D/F limits. The EPA is also proposing
to add a new definition at 40 CFR 63.542

[[Page 47276]]

for ``collocated rotary and reverberatory furnaces'' to mean operation
of a rotary furnace and a reverberatory furnace at the same location,
where the vent streams of the furnaces are mixed.
In the 2012 RTR, we considered beyond-the-floor options to further
reduce emissions of D/F and THC from blast furnaces but did not
finalize them as they were not cost-effective and would likely lead to
an increase in other pollutants (i.e., NO<INF>X</INF> and
CO<INF>2</INF>).\40\ When considering beyond-the-floor D/F and THC
limits for collocated rotary and reverberatory furnaces, the EPA found
that the facility currently uses its rotary furnace to process slag
after it has been processed in the reverberatory furnace. Due to the
plastics separation work practices already in place and the pre-
processing of slag in the reverberatory furnace, most D/F emissions
from the rotary furnace are below the detection limit, which is the
lowest quantifiable value. However, we found the rotary only data set
to be insufficient for setting standards and, instead, are proposing to
regulate the collocated rotary and reverberatory furnace limit.
However, we found this data set to be insufficient for setting
standards and, instead, are proposing to regulate the collocated rotary
and reverberatory furnaces. D/F limits are already in place for the
reverberatory furnaces, and we are proposing to add an additional limit
to include D/F from rotary furnaces. We did not identify any beyond-
the-floor options that would lower the D/F limits from collocated
rotary and reverberatory furnaces. For THC, the facility already has
several control devices in place, including a scrubber. We did not
identify any new technically feasible, cost-effective control options
to obtain any additional reductions for THC. More information can be
found in the memorandum: Summary of MACT Floor and Beyond-the-Floor
Analysis for the Secondary Lead Smelting Source Category available in
the docket of this rulemaking.
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\40\ Docket ID No. EPA-HQ-OAR-2011-0344-0150.
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The EPA is soliciting comment on the proposed THC and D/F limits
and beyond-the-floor rationale (Question #4) and definition for
collocated rotary and reverberatory furnaces (Question #5). THC is a
surrogate for non-D/F organic HAP, as stated in previous secondary lead
rulemakings and as proposed below for COS.\41\ The destruction of THC
through incineration is strongly correlated with the destruction of
non-D/F organic HAP compounds, and COS can also be controlled using
thermal controls.
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\41\ 60 FR 32587 (June 23, 1995).
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Additionally, we are soliciting comment on setting the THC and D/F
standards pursuant to CAA section 112(d)(6) rather than setting the THC
and D/F standards exclusively pursuant to CAA section 112(d)(2) and (3)
(Question #6). Although the D.C. Circuit held in LEAN that the EPA is
required to address previously unregulated HAP from major sources
during a CAA section 112(d)(6) technology review, it is not entirely
clear how that process functions under the statutory text. In this
instance, setting the standards under CAA section 112(d)(6) would
result in essentially the same standards because the performance of the
only collocated rotary and reverberatory furnace would be used to
establish the standards, resulting in the same values as the standards
we are proposing under CAA sections 112(d)(2) and (3). The difference
in the approach would be that we would not be constrained to any
minimum stringency level and would, therefore, not conduct a beyond-
the-floor analysis. We would not anticipate any cost or impact
differences associated with setting the THC and D/F limits pursuant to
CAA section 112(d)(6) as compared to CAA section 112(d)(2) and (3). The
estimated costs would be for testing, recordkeeping, and reporting.
b. COS
During the NEI review, the EPA identified COS as a HAP that might
be emitted and is not currently regulated. The CAA section 114
information request required COS testing from four facilities to
determine whether COS was emitted by the source category. Three of the
four facilities emitted a measurable amount of COS with one facility
below the detection limit. To address this unregulated HAP, we are
proposing to use THC as a surrogate for COS. Thermal control technology
used to control THC simultaneously controls COS as well. In addition,
THC is easily measured, and THC testing is already required for the
source category. The EPA is soliciting comment on proposing THC as a
surrogate for COS (Question #7).
c. HCl/Cl<INF>2</INF>
In the 1994 Secondary Lead NESHAP proposed rule, the EPA estimated
secondary lead facilities emitted 806 tpy of HCl from 16 facilities. In
response, the EPA proposed HCl and Cl<INF>2</INF> emission limits.\42\
The EPA received several comments on that proposal indicating that the
feasibility of emission controls was overstated, additional controls
would be needed to achieve the proposed emission standards, and
polyvinyl chloride (PVC), the primary source of HCl and Cl<INF>2</INF>
emissions, was being phased out as a separator material in batteries.
Due to that new information in these comments, the EPA did not finalize
emission limits for HCl and Cl<INF>2</INF> at that time.\43\
---------------------------------------------------------------------------

\42\ 59 FR 29754, June 9, 1994 (``All smelting furnaces that
process broken batteries are potential sources of HCl and Cl2
[chloride] emissions. Many used lead-acid batteries contain
polyvinyl chloride (PVC) plastic separators between the battery
grids, although the use of PVC plastic as a separator material has
been discontinued by most battery manufacturers. These separators
are typically not removed from the lead bearing parts of the battery
during the battery breaking and separation process. When the PVC
plastic is burned in the smelting furnace, the chlorides are
released as HCl, Cl2, and chlorinated hydrocarbons.''; 60 FR 19556,
April 11, 1995; Secondary Lead Smelting Background Information
Document for Promulgated Standards NESHAP, pages 2-41-2-46 and
Appendix A.
\43\ 60 FR 32587, 32593, June 23, 1995 (explaining that the
``EPA is reasonably confident that the predicted decline in PVC
separators in secondary lead smelter feedstock will continue and PVC
will be present in only trace quantities by the 1997 effective date
of this rule.'').
---------------------------------------------------------------------------

During the 2012 RTR, the EPA estimated HCl and Cl<INF>2</INF>
emissions from the source category had been reduced to about 2 tpy and,
therefore, did not propose any emission limits at that time.\44\ While
reviewing emissions inventories for this rulemaking, the EPA found that
secondary lead smelting facilities were still emitting small amounts of
HCl and Cl<INF>2</INF>. Through a CAA section 114 information request,
the EPA requested testing from three facilities to confirm whether and
how much HCl and Cl<INF>2</INF> are still emitted from the source
category. The testing results, supplemented with data collected during
the 2012 RTR from an additional 5 facilities, showed that the source
category now emits only 1.5 tpy of HCl and 0.2 tpy of Cl<INF>2</INF>,
in total, from 11 facilities. The EPA proposes that these very small
amounts of HCl and Cl<INF>2</INF> emitted are too trivial to justify
requiring additional controls and thus amount to de minimis levels that
Congress did not intend to subject to the imposition of controls under
CAA section 112.
---------------------------------------------------------------------------

\44\ 77 FR 556 (January 5, 2012).
---------------------------------------------------------------------------

The EPA recognizes that the D.C. Circuit has emphasized that the
Agency has a ``clear statutory obligation to set emission standards for
each listed HAP'' and must address previously unregulated pollutants
known to be emitted by a source category during a technology
review.\45\ While the D.C. Circuit's LEAN decision focused on the

[[Page 47277]]

broad question whether the EPA is required to address unregulated
pollutants generally during a CAA section 112(d)(6) technology review.
The decision did not address the narrower question whether CAA section
112 displaces the ordinary background rule that a general statutory
requirement does not encompass de minimis concerns unless otherwise
indicated under the circumstances.
---------------------------------------------------------------------------

\45\ Nat'l Lime Ass'n v. EPA, 233 F.3d 625, 634 (D.C. Cir.
2000); see also LEAN, 955 F.3d at 1092.
---------------------------------------------------------------------------

As the Supreme Court explained in Wisconsin Department of Revenue
v. William Wrigley, Jr., Co., ``the venerable mexim de minimis non
curat lex (`the law cares not for trifles') is part of the established
background of legal principles against which all enactments are
adopted, and which all enactments (absent contrary indication) are
deemed to accept.'' \46\ The Court further explained that ``whether a
particular activity is a de minimis deviation from a prescribed
standard must, of course, be determined with reference to the purpose
of the standard.'' \47\ In Alabama Power Company v. Costle, a CAA case,
the D.C. Circuit held that categorical exemptions from the requirements
of a statute may be permissible ``as an exercise of agency power,
inherent in most statutory schemes, to overlook circumstances that in
context may fairly be considered de minimis.'' \48\ This principle
derives from the commonplace notion that ``the law does not concern
itself with trifling matters.'' \49\ The ability to recognize de
minimis regulatory issues ``is not an ability to depart from the
statute, but rather a tool to be used in implementing the legislative
design.'' \50\
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\46\ 505 U.S. 214, 231 (1992).
\47\ Id. at 232.
\48\ 636 F.2d 323, 360 (D.C. Cir. 1979).
\49\ Id.
\50\ Id.; see also Citadel Sec. v. SEC, 45 F.4th 27, 36 (D.C.
Cir. 2022) (upholding agency decision as reasonable and supported by
this principle); Shays v. FEC, 414 F.3d 76, 113-14 (D.C. Cir. 2005)
(``Predicated on the notion that the Congress is always presumed to
intend that pointless expenditures of effort be avoided, such
authority is inherent in most statutory schemes, by implication.'')
(internal quotation marks omitted).
---------------------------------------------------------------------------

The EPA does not dispute that CAA section 112(d)(1) requires the
Administrator to ``promulgate regulations establishing emission
standards for each category or subcategory of major sources and area
sources of [HAP] listed for regulation pursuant to section (c) of this
section.'' \51\ However, statutory context makes clear that Congress
did not intend the EPA to relentlessly regulate trivial amounts of HAP.
For example, CAA section 112(a)(1) defines a major source as one ``that
emits or has the potential to emit considering controls, in the
aggregate, 10 tons per year or more of any [HAP] or 25 tons per year or
more of any combination of [HAP].'' \52\. Sources with fewer emissions
are defined as area sources, which the EPA need only regulate if the
Administrator finds that they present ``a threat of adverse effects to
human health or the environment (by such sources individually or in the
aggregate) warranting regulation under this section.'' \53\ And once
regulated, the EPA may elect to promulgate standards for area sources
``which provide for the use of generally available control technologies
or management practices,'' as opposed to more stringent MACT
standards.\54\
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\51\ 42 U.S.C. 7412(d)(1).
\52\ Id. 7412(a)(1).
\53\ Id. 7412(c)(3). CAA section 112(c)(3) requires that the EPA
shall ``list, based on actual or estimated aggregate emissions of a
listed pollutant or pollutants, sufficient categories or
subcategories of area sources to ensure that area sources
representing 90 percent of the area source emissions of the 30 [HAP]
that present the greatest threat to public health in the largest
number of urban areas are subject to regulation under this
section.'' HCl and Cl<INF>2</INF> are not among the EPA's 30 listed
urban air toxics (see <a href="https://www.epa.gov/haps/urban-air-toxic-pollutants">https://www.epa.gov/haps/urban-air-toxic-pollutants</a>).
\54\ 42 U.S.C. 7412(d)(5).
---------------------------------------------------------------------------

Moreover, additional considerations support the conclusion that
Congress did not intend CAA section 112 to require regulation of de
minimis emissions under the circumstances CAA section 112(e)(2)
expressly authorizes the EPA to determine ``priorities'' for developing
standards under section 112(d), including based on the quantity of
emissions.\55\ The EPA proposes that CAA section 112 does not include
the contrary language expected for an intentional departure from the
ordinary de minimis background principle and that application of that
principle here is consistent with the design and objective of CAA
section 112 to reduce emission of HAP that endanger public health and
welfare. In doing so, the EPA is also mindful of the Supreme Court's
admonition that because ``[l]egislation is, after all, the art of
compromise ... no statute yet known 'pursues its [stated] purpose[] at
all costs.'' \56\
---------------------------------------------------------------------------

\55\ Id. 7412(e)(2), (e)(2)(B).
\56\ Henson v. Santander Consumer USA, Inc., 582 U.S. 79, 89
(2017) (quoting Rodriguez v. United States, 480 U.S. 522, 525-26
(1987) (per curiam)).
---------------------------------------------------------------------------

Here, the secondary lead smelting source category, currently
consisting of 11 major and area source facilities, emit only 1.5 tpy of
HCl and 0.2 tpy of Cl<INF>2</INF>. Considered in isolation, these
emissions are nowhere near the 10 tpy pollutant-specific and 25 tpy
aggregate thresholds that trigger major source regulation. And as
further discussed, the trivial amounts of HCl and Cl<INF>2</INF>
estimated to be emitted from this source category do not amount to a
level that presents or risks an adverse effect to human health or the
environment. Thus, even in light of the LEAN decision, the EPA proposes
that Congress did not intend CAA section 112 to abrogate the ordinary
background principle that de minimis concerns do not fall within the
scope of general legislative requirements under the circumstances.
As noted above, in CAA section 112(e)(2) Congress established
criteria for the EPA to consider ``[i]n determining priorities for
promulgating standards under subsection (d).'' \57\ These criteria
include ``the known or anticipated adverse effects of such pollutants
on public health and the environment; the quantity and location of
emissions or reasonably anticipated emissions of [HAP] that each
category or subcategory will emit''.\58\ Thus, in prioritizing the
EPA's work to reduce HAP emissions, Congress intended the EPA to focus
on the pollutants emitted in the highest quantities with the greatest
impact. Therefore, for certain pollutants emitted in trivial quantities
with low impact, such as HCl and Cl<INF>2</INF> for this source
category, EPA finds that those emissions would be the most likely to
qualify for de minimis treatment under the legislative design. However,
EPA would evaluate whether de minimis treatment for those emissions
would continue to be appropriate during subsequent technology reviews.
---------------------------------------------------------------------------

\57\ 42 U.S.C. 7412(e)(2).
\58\ Id.
---------------------------------------------------------------------------

Applying those criteria here, the EPA proposes to find that both
support a finding that emissions from HCl and Cl<INF>2</INF> from
secondary lead smelting facilities qualify as de minimis.\59\
---------------------------------------------------------------------------

\59\ The EPA distinguishes this proposed de minimis analysis
here from the EPA's decision to reject a de minimis exemption for
HCl for the Portland Cement Manufacturing source category, which the
D.C. Circuit found to be reasonable in Nat'l Lime Ass'n 233 F.3d at
640. In that source category, HCl was emitted at amounts to qualify
each kiln as a major source. See 64 FR 31898, 31907 (June 14, 1999).
As clarified, that is not the case here for HCl or Cl<INF>2</INF>
for the secondary lead source category.
---------------------------------------------------------------------------

First, secondary lead smelting facilities emit HCl and
Cl<INF>2</INF> in very low quantities. With regards to HCl, the EPA
estimates that the average amount emitted per facility is 0.13 tpy, and
no single facility emits more than 1 tpy. For Cl<INF>2</INF> we
estimate the average amount emitted per facility is 0.017 tpy, and no
single facility emits more than 0.025 tpy. In addition to the work
practices, several facilities currently have control devices in place
that may capture and control HCl and Cl<INF>2</INF> in addition to

[[Page 47278]]

reducing other target pollutants. Finally, the EPA does not expect HCl
and Cl<INF>2</INF> emissions to increase over time because older
batteries with PVC will continue to leave circulation and thus no
longer be recycled.\60\
---------------------------------------------------------------------------

\60\ 60 FR 32587 (June 23, 1995).
---------------------------------------------------------------------------

Second, the impacts of HCl and Cl<INF>2</INF> from this source
category are very low. Neither HCl nor Cl<INF>2</INF> persist in the
environment for long periods of time, and they do not transform into
other HAP.\61\ Neither HCl nor Cl<INF>2</INF> can bioaccumulate; that
is, they do not have the ability to build up in the food chain to
levels that are harmful to human health and the environment. Neither
HCl \62\ nor Cl<INF>2</INF> \63\ are non-threshold carcinogens. These
factors decrease the likelihood of adverse impacts from these
pollutants, especially at low emission rates. Indeed, the health
impacts of exposure to HCl and Cl<INF>2</INF> emissions here are
exceedingly low. Noncancer hazard is expressed as a hazard quotient
(HQ), the ratio of estimated exposure to the reference value. An HQ
less than or equal to one indicates that adverse effects are not likely
to occur. When the EPA last assessed the risk for this source category
in 2012, the estimated maximum acute HQ for HCl was more than two
orders of magnitude below one.\64\ The chronic risk assessment yielded
an even lower HQ. While Cl<INF>2</INF> is understood to be a more
potent noncancer toxicant than HCl, the inappreciable emissions led to
similarly low potential health impacts for Cl<INF>2</INF>. Taken
together, these results suggest there is no discernable risk of adverse
health impacts from HCl and Cl<INF>2</INF> in this circumstance. This
is particularly true given the conservative nature of the risk
assessment, which used health-protective benchmarks and worst-case-
scenario meteorological data for the acute scenario, and the fact that
emission levels have continued to decrease over time.
---------------------------------------------------------------------------

\61\ EPA discussed environmental impacts of HCl in its proposed
NESHAP for Lime Manufacturing Plants: 67 FR 78046 (December 20,
2002).
\62\ Information on the effects and environmental fate of HCl
can be found at: U.S. Agency for Toxic Substances and Disease
Registry (Last updated July 27, 2015). ToxFAQs for Hydrogen
Chloride: <a href="https://wwwn.cdc.gov/TSP/ToxFAQs/ToxFAQsDetails.aspx?faqid=759&toxid=147">https://wwwn.cdc.gov/TSP/ToxFAQs/ToxFAQsDetails.aspx?faqid=759&toxid=147</a>.
\63\ Information on the effects and environmental fate of
Cl<INF>2</INF> can be found at: U.S. Agency for Toxic Substances and
Disease Registry (Last updated March 12, 2015). Toxicological
Profile for Chlorine: <a href="https://wwwn.cdc.gov/TSP/ToxProfiles/ToxProfiles.aspx?id=1079&tid=36">https://wwwn.cdc.gov/TSP/ToxProfiles/ToxProfiles.aspx?id=1079&tid=36</a>.
\64\ Docket ID No. EPA-HQ-OAR-2011-0344-0160.
---------------------------------------------------------------------------

Finally, the EPA distinguishes this proposed de minimis analysis
from the EPA's prior decision to reject de minimis treatment for HCl
for the cement kilns source category, which the D.C. Circuit previously
found to be reasonable.\65\ In that source category, HCl was emitted at
amounts to qualify each kiln as a major source.\66\ Here, as a factual
matter, that is nowhere near the case for HCl or Cl<INF>2</INF> for the
secondary lead source category as these 11 facilities emit only 1.5 tpy
of HCl and 0.2 tpy of Cl<INF>2.</INF> Further, even if this proposal
arguably represents a change in the EPA's position on de minimis
treatment for HCl, allowing for de minimis treatment of certain
pollutants emitted in trivial amounts is the best reading of the
statute when considering Congress's intent for promulgating standards
as expressed in CAA section 112(e)(2).\67\ The EPA seeks comment on
whether the Agency's proposed de minimis treatment here for HCl and
Cl<INF>2</INF> for the secondary lead smelting source category could be
considered a change in Agency position (Question #8).
---------------------------------------------------------------------------

\65\ National Lime Ass'n v. EPA, 233 F.3d 625, 640 (D.C. Cir.
2000).
\66\ 64 FR 31898, 31907 (June 14, 1999).
\67\ FCC v. Fox Television Stations, Inc, 556 U.S.502 (2009);
Loper Bright Enters v. Raimondo, 603 U.S. 369 (2024).
---------------------------------------------------------------------------

In light of these specific facts and circumstances, the EPA
proposes to find that emissions of HCl and Cl<INF>2</INF> from
secondary lead smelting facilities are de minimis and do not require
emission limits. The continuing decline in these emissions due to the
phaseout of PVC in batteries, and their lack of discernable risk of
adverse health impacts all counsel against regulation. However, the EPA
emphasizes the highly fact-specific nature of this proposed de minimis
treatment. Other pollutants, even if emitted at low levels from other
source categories, may not qualify for de minimis treatment where risks
of adverse health impacts are significant. The EPA seeks comment on all
aspects of the Agency's proposed determination, including the Agency's
statutory interpretation and factual findings (Question #9).
In addition to proposing that HCl emissions are de minimis, we are
also taking comment on whether to adopt a MACT HCl limit of 0.03 lb/hr
in lieu of the de minimis determination (Question #10). This HCl limit
was calculated using the standard MACT floor development procedures,
which use the 99 percent UPL to incorporate variability demonstrated by
the available test data obtained during the 2010 and 2023 CAA section
114 information requests. We did not identify any technically feasible,
cost-effective control options to obtain any additional reductions for
HCl. More information on the MACT floor and beyond-the-floor analysis
is available in the memorandum titled: Summary of MACT Floor and Beyond
the Floor Analysis for the Secondary Lead Smelting Source Category
available in the docket of this rulemaking. \68\ This HCl limit would
serve as a surrogate for Cl<INF>2.</INF> As affirmed by the D.C.
Circuit, the EPA may use a surrogate to regulate emissions of HAP if
there is a reasonable basis to do so.\69\ For example, we have used PM
controls as a surrogate for HAP metals ``because no cement plant
intentionally controls HAP metals; metal emissions are controlled only
incidentally by controls placed upon PM.'' \70\ Thus, the court found
that ``EPA's response is the correct one: `cement plants actually are
controlling HAP metals[,] intentionally or not.' '' \71\ Here, control
technologies that reduce HCl also control Cl<INF>2.</INF> Therefore,
HCl is an appropriate surrogate for Cl<INF>2.</INF> Additionally, in
the 2011 RTR proposed rule testing indicated 98 percent of chlorine was
emitted as HCl.
---------------------------------------------------------------------------

\68\ Docket ID No. EPA-HQ-OAR-2025-0078.
\69\ See Dithiocarbamate Task Force v. EPA, 98 F.3d 1394, 1399
(D.C. Cir. 1996) (EPA may attribute characteristics of a subclass of
substances to an entire class of substances if doing so is
scientifically reasonable.); See also NRDC v. EPA, 822 F.2d 104, 125
(D.C. Cir. 1987) (EPA may regulate a pollutant indirectly when its
emissions are controllable by regulation of other pollutants.)
\70\ National Lime Ass'n, 233 F.3d at 640.
\71\ Id.
---------------------------------------------------------------------------

2. Differential Pressure Monitoring
As part of the amendments finalized in the 2012 RTR, the EPA
required all secondary lead facilities to operate sources of fugitive
lead emissions within total enclosures that are always maintained under
negative pressure and vented to a control device.\72\ As previously
explained, these sources of fugitive emissions include but are not
limited to the following: 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. To
demonstrate compliance with the total enclosure requirement, facilities
measure compliance using three differential pressure monitors placed on
the leeward wall, windward wall, and an exterior wall that connects the
leeward and windward wall. Monitors must maintain negative pressure
values of at least 0.013 millimeters (mm) of mercury, which is
equivalent to 0.007

[[Page 47279]]

inches of water.\73\ The rule incorporated 40 CFR 63.10(b)(2)(vii),
which requires records of 15-minute averages of data collected from
continuous monitoring systems (CMS). The EPA subsequently issued a
Secondary Lead Smelting NESHAP direct final rule clarifying that the
data collected from the continuous pressure monitors must be used to
calculate 15-minute averages that are used to demonstrate compliance,
and the 15-minute averages must include at least one reading per
minute.\74\
---------------------------------------------------------------------------

\72\ 40 CFR 63.554.
\73\ 40 CFR 63.554 (C)(1).
\74\ 79 FR 367 (Jan. 3, 2014).
---------------------------------------------------------------------------

Since implementing the negative pressure requirements, the EPA
received requests from industry to allow for alternative monitoring
procedures for demonstrating continuous negative pressure for total
enclosures. ABR submitted comments \75\ in response to Executive Order
13777, ``Enforcing the Regulatory Reform Agenda,'' available in the
docket of this rulemaking. In the letter, ABR requested that the EPA
revise the Secondary Lead Smelting NESHAP monitoring requirements and
provide an option of demonstrating compliance through fan amperage
monitors via EPA Method 204, sections 6.1 and 8.3, rather than
mandating that smelters employ digital differential pressure devices.
Industry states that at certain smelters, digital differential pressure
devices do not provide robust and valid data for measuring compliance.
The size and/or configurations of buildings, including the placement of
inner walls and bulkheads, produce internally induced air currents at
speeds and angles that create aspiration flows in the monitors, leading
to errors in pressure measurements that do not reflect the actual
pressure differential of the total enclosure. In addition to
configuration issues, industry noted factors outside the control of
smelters, including external temperature, sudden external barometric
pressure changes, and other weather conditions, can disturb the
validity of differential pressure readings and inward air flow at
enclosure openings. Further, in response to the CAA section 114
information request, the EPA received several responses from facilities
reporting issues with external factors such as sudden weather, water
intrusion, and blockages due to pest activity that affected the
accuracy of the differential pressure monitoring readings.
---------------------------------------------------------------------------

\75\ Baker Hostetler, Comments of the Association of Battery
Recyclers on Evaluation of Existing Regulations, 82 FR 17793 (Apr.
13, 2017).
---------------------------------------------------------------------------

Some EPA regional offices have approved alternative monitoring
requests submitted by industry. For example, the East Penn secondary
lead smelter in Lyons, Pennsylvania, and the Johnson Controls Battery
Group secondary lead smelter in Florence, South Carolina, have been
approved to use fan amperage as an alternative monitoring parameter to
demonstrate continuous negative pressure.76 77
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\76\ U.S. Environmental Protection Agency. (August 13, 2014).
East Penn Manufacturing Company, Alternate Monitoring Petition
[Letter].
\77\ U.S. Environmental Protection Agency. (August 27, 2016).
Johnson Controls Battery Group, Inc., Alternate Monitoring Petition
[Letter].
---------------------------------------------------------------------------

In addition to the alternative monitoring request, ABR requested
that the EPA revise the monitoring requirement to include a data
recovery requirement consistent with 40 CFR 60.7 for all continuous
monitoring devices. This is addressed in the general provisions
requirements of 40 CFR 63.10(e)(3)(vii), which is applicable to 40 CFR
part 63, subpart X and is similar to 40 CFR 60.7, requiring only a
summary report if the total duration of excess emissions or process or
control system parameter exceedances for the reporting period is less
than 1 percent of the total operating time for the reporting period and
CMS downtime for the reporting period is less than 5 percent of the
total operating time for the reporting period.
In response to the comments received regarding differential
pressure monitoring, the EPA recognizes that, as the regulations are
currently written, there may be difficulty demonstrating compliance
using differential pressure monitors. The rule currently requires
facilities to demonstrate compliance with the standard for differential
pressure by maintaining the pressure in total enclosures such that the
average pressure in any 15-minute period does not fall below the level
specified in 40 CFR 63.544(c)(1). To better align with the general
provisions of 40 CFR part 63 and address the ongoing issues with the
use of negative pressure monitors, we are proposing to increase the
differential pressure averaging period from 15 minutes to 3 hours. The
data from the CMS will be reduced according to 40 CFR 63.8(g)(2) to 1-
hour averages, computed from four or more data points equally spaced
over each 1-hour period, except during periods when calibration,
quality assurance, or maintenance activities are being performed.
During these periods, a valid hourly average will consist of at least
two data points with each representing a 15-minute period. The
increased averaging time will help differential pressure monitors
overcome environmental issues such as wind and weather impacts while
not disrupting the negative pressure requirements that are essential in
controlling process fugitive emissions. We are also proposing to amend
the rule requirements to clarify the averaging period applies to each
individual monitor and not the average of the three monitors in 40 CFR
63.548(k)(4). The EPA is soliciting comment on increasing the
differential pressure monitor averaging time (Question #11).
3. Total Enclosure Alternative Monitoring Using Fan Amperage
We are also proposing that affected sources of the Secondary Lead
Smelting NESHAP may demonstrate compliance with the total enclosure
monitoring requirements under 40 CFR 63.544(a) by using fan amperage as
an alternative to differential pressure.\78\ We are proposing
procedures to use fan amperage that are based on EPA Method 204,
sections 6.1 and 8.3 to demonstrate compliance with total enclosure
monitoring. EPA Method 204 sets forth the criteria for a permanent
total enclosure. Specifically, EPA Method 204 states that the pressure
differential of 0.007 inches of water (or 0.013 mm of mercury)
corresponds to 200 feet per minute (fpm) of inward face velocity at
natural draft openings, per EPA Method 204, section 8.3. Inward face
velocity (FV) can be calculated by dividing the difference between the
sum of all exhaust air streams (Q<INF>O</INF>) and the sum of all
forced makeup air (Q<INF>I</INF>) by the total area of all natural
draft openings (A<INF>N</INF>) using the following equation:\79\
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\78\ 40 CFR part 63, subpart X.
\79\ See EPA Method 204, section 8.3, Equation 204-3.
[GRAPHIC] [TIFF OMITTED] TP01OC25.001

Smelters must use the Manufacturers' Fan Performance Curves to
determine the brake horsepower requirements necessary to achieve at
least 3,600 m/hr (200 fpm) FV and calculate the minimum amperage
necessary to achieve that corresponding horsepower. This minimum fan
amperage will be the operating limit to ensure the negative pressure of
the total enclosure is always maintained. The amperage at each exhaust
and intake fan must then be monitored by a current transformer,
recorded at least once per minute by a programmable logic controller or
equivalent device, and averaged into a 3-hour period.
The EPA is proposing to add 40 CFR 63.548(n) which includes the
procedures for using fan amperage to

[[Page 47280]]

demonstrate compliance with total enclosure requirements and add
associated records in 40 CFR 63.550(c) and the reporting requirements
in 40 CFR 63.550(e). The EPA is soliciting comment on allowing
monitoring of total enclosure at negative pressure through the use of
fan amperage (Question #12).
4. 24-Month Performance Test Extension
In their response to the CAA section 114 information request,
industry requested the EPA remove the need to submit a written request
to the Administrator when applying for an extension of up to 24
calendar months to conduct the next compliance test, if lead and THC
testing results are 50 percent or less of the applicable emission
limit. The Secondary Lead Smelting NESHAP requires sources to conduct
annual compliance tests for total lead compounds and THC. The Secondary
Lead Smelting NESHAP allows facilities to submit a written request to
the Administrator for an extension of up to 24 calendar months from the
previous compliance test to conduct the next compliance test if an
annual compliance test is below a certain level. Industry notes that it
has been difficult to obtain timely approval from the EPA for a
performance test extension which, in practical effect, results in a
denial of the extension request and smelters having to continue to
conduct annual compliance testing. Therefore, industry requested that
the EPA revise the Secondary Lead Smelting NESHAP to make performance
test extensions of up to 24 calendar months automatic upon written
notice of the request to the Administrator.
The EPA agrees that it is reasonable to expect to get a response
within a reasonable timeframe before the next compliance test.
Therefore, similar to the Standards of Performance for Secondary Lead
Smelters for Which Construction, Reconstruction, or Modification
Commenced After December 1, 2022,\80\ the EPA is proposing a provision
at 40 CFR 63.543(g)(3) and (h) that the extension request will be
deemed approved under the following circumstances: (1) a facility
completes a performance test that is measured as 50 percent or lower
than the applicable emissions limit, (2) a facility submits a request
for the extension within 4 months after the compliance test, and (3)
the Administrator does not provide a response within 6 months of
receipt of the request. The EPA is soliciting comment on the automatic
approval of the 24-month testing extensions under certain circumstances
(Question #13).
---------------------------------------------------------------------------

\80\ 40 CFR part 60, subpart La.
---------------------------------------------------------------------------

5. Issues Raised by Petitioners Following the 2012 RTR
In January 2012, the EPA finalized the Secondary Lead Smelting RTR.
In March 2012, the EPA received petitions for reconsideration from
California Communities Against Toxics, Frisco Unleaded, Missouri
Coalition for the Environment Foundation, NRDC, and Sierra Club
(collectively); ABR; and Johnson Controls Battery Group Inc. (JCI). The
EPA granted reconsideration to California Communities Against Toxics,
Frisco Unleaded, Missouri Coalition for the Environment Foundation,
NRDC, and Sierra Club (collectively) on the ample margin of safety
analysis. The EPA also granted ABR and JCI's petitions for
reconsideration.
The EPA addressed some industry issues in the subsequent Secondary
Lead Smelting NESHAP direct final rule.\81\ The remaining industry
issues were litigated and on May 28, 2013, the court rejected the
industry petitioners' arguments and denied their petitions for
review.\82\ Based on this court decision, we consider all the industry
petitioners' reconsideration requests to be resolved, as those issues
were addressed by the 2014 direct final rule or the court. The EPA will
not respond to comments addressing any other issues or any other
provisions of the 2012 rule not specifically addressed in this proposed
rulemaking.
---------------------------------------------------------------------------

\81\ 79 FR 367 (January 3, 2014).
\82\ Ass'n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667 (D.C.
Cir. 2013).
---------------------------------------------------------------------------

a. Ample Margin of Safety Analysis
In their 2012 petition, Sierra Club, California Communities Against
Toxics, Frisco Unleaded, Missouri Coalition for the Environment
Foundation, and Natural Resources Defense Council \83\ alleged that the
EPA failed to adequately support its finding that the rule provided an
ample margin of safety to protect public health. The ample margin of
safety analysis included arsenic, cadmium, lead, dioxins and furans,
organic HAP, and mercury. In 2012, the EPA granted reconsideration of
the 2012 RTR on the following issue: petitioners' allegation that the
EPA's ample margin analysis considered only cost, emission reductions,
and cost effectiveness and did not include consideration of health and
other metrics.
---------------------------------------------------------------------------

\83\ Petition for Reconsideration of National Emissions
Standards for Hazardous Air Pollutant Emissions from Secondary Lead
Smelting, 77 FR. 556 (Jan. 5, 2012), Docket ID No. EPA-HQ-OAR-2011-
0344-0173.
---------------------------------------------------------------------------

In evaluating and developing standards under section 112(f)(2), as
discussed in Section I.A of the 2011 proposal preamble, we apply a two-
step process to address residual risk. In the first step, the EPA
determines whether risks are acceptable. This determination ``considers
all health information, including risk estimation uncertainty, and
includes a presumptive limit on maximum individual lifetime [cancer]
risk (MIR) of approximately 1 in 10 thousand [i.e., 100-in-1 million]''
(54 FR 38045). In the second step of the process, the EPA sets the
standard at a level that provides an ample margin of safety ``in
consideration of all health information, including the number of
persons at risk levels higher than approximately 1-in-1 million, as
well as other relevant factors, including costs and economic impacts,
technological feasibility, and other factors relevant to each
particular decision'' (Id.)
In the 2012 RTR, we finalized the following requirements under CAA
section 112(d)(6) and the acceptability determination under CAA section
112(f)(2):
<bullet> fugitive emission work practices,
<bullet> enclosure for fugitive emission sources, and
<bullet> a 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.
In the residual risk assessment for the 2012 RTR, we estimated that
these requirements would reduce the cancer risk associated with arsenic
and cadmium from 200-in-1 million to 10-in-1 million for MACT-allowable
emissions and from 50-in-1 million to 10-in-1 million for actual
emissions. In the 2012 rule, the maximum acute HQ value for arsenic was
expected to be reduced from 20 to 5. We note that we changed our acute
risk methodology in 2019 from using the worst-case air dispersion
conditions (i.e., the worst hour) to using the reasonable worst-case
air dispersion conditions (i.e., 99th percentile). If we were to
estimate the acute risk using the updated acute risk approach, we
anticipate it would be significantly less than estimated in the 2012
RTR. In the 2012 RTR, we estimated that the multipathway cancer risk
from ingestion of dioxin was less than 1.
The risks described above were considered acceptable. As required,
we performed an ample margin of safety analysis to determine whether
risks could be further reduced. In the Secondary Lead Smelting NESHAP

[[Page 47281]]

proposal \84\ and in the final rule,\85\ the EPA presented the ample
margin of safety analysis and the resulting decision. The ample margin
of safety analysis did not focus only on costs as alleged by the
petitioner. In addition to costs, we considered the human health
impacts, availability of controls, and technical feasibility of
applying available controls. We performed an ample margin of safety
analysis for the source category that included consideration of
multiple emissions sources, including sources that emit the following
HAP: (1) arsenic and cadmium, (2) lead compounds, (3) dioxins and
furans, (4) organic HAP, and (5) mercury compounds. The results of the
ample margin of safety analysis are provided in the following
paragraphs.
---------------------------------------------------------------------------

\84\ 76 FR 29057 (May 19, 2011).
\85\ 77 FR 556 (January 5, 2012).
---------------------------------------------------------------------------

i. Arsenic and Cadmium: For fugitive emissions sources of arsenic
and cadmium, we did not identify any additional feasible control
options beyond what we required under acceptability. Therefore, we did
not promulgate additional fugitive controls based on our ample margin
of safety analysis. For stack emissions of arsenic and cadmium, we
identified the addition of a WESP as a potential control. However, we
found that stack emissions of arsenic and cadmium did not appreciably
contribute to the 10-in-1 million cancer risks remaining after
implementation of the controls under acceptability (cancer risks were
largely driven by fugitive emissions of arsenic and cadmium). Moreover,
we concluded that the likelihood of significant noncancer effects due
to post-control arsenic emissions would be very low because the maximum
acute noncancer HQ was estimated to be 5, and the assessment was based
on a very conservative analysis using some worst-case assumptions (as
indicated above, using the updated acute methodology, the HQ would
likely be significantly lower). Furthermore, the costs for these
additional controls were high: total capital costs were $400 million,
and the total annualized costs were $55 million ($4 million/ton of
metal HAP emissions reduced). Therefore, we did not promulgate
standards based on the installation of a WESP under the ample margin of
safety analysis.
ii. Lead: In the 2012 RTR, we finalized requirements under CAA
sections 112(d)(6) and (f)(2) lowering the facility-wide emissions
limit to a flow-weighted average of 0.20 mg/dscm, limiting the
emissions from any one stack to no more than 1.0 mg/dscm, and requiring
facilities to fully enclose process fugitive emissions sources and
fugitive dust sources. These actions reduced the actual and MACT-
allowable lead emissions from this source category to a level that
would not result in off-site concentrations above the NAAQS. Moreover,
we did not identify any further feasible and cost-effective controls.
Thus, we determined that additional lead controls beyond those required
under CAA sections 112(d)(6) and (f)(2) were not needed to provide an
ample margin of safety to protect public health.
iii. Dioxins and Furans: We promulgated various emissions limits
for D/F emissions in the final rule,\86\ under CAA section 112(d)(2)
and (3). At proposal, results of the multipathway risk assessment
indicated that the ingestion cancer risk associated with dioxin and
furan emissions was 30-in-1 million. Following proposal, new dioxins
and furans emissions data were obtained for the industry. We revised
the multipathway risk assessment based on these new data and found that
the ingestion cancer risk associated with dioxin and furan emissions
was less than 1-in-1 million. Because the maximum individual risk is
less than 1-in-1 million, we determined that reductions in emissions of
dioxins and furans beyond those achieved by the MACT standards were not
needed to provide an ample margin of safety to the public.
---------------------------------------------------------------------------

\86\ 77 FR 556 (January 5, 2012).
---------------------------------------------------------------------------

iv. Organic HAP: For organic HAP (other than dioxins and furans),
we estimated that actual emissions did not result in a cancer risk
above 1-in-1 million at any facility in this source category. Given
that actual emissions from blast furnaces did not result in a cancer
risk above 1-in-1 million and the actual THC emissions modeled from
blast furnaces were at levels close to the allowable emissions, we
concluded that the cancer risk associated with actual and allowable
emissions of organic HAP from all other furnace types are not likely to
be greater than 1-in-1 million since the THC limit for blast furnaces
is considerably higher than for other furnace types. Additionally,
emissions of organic HAP from this source category do not appreciably
contribute to any chronic noncancer risk. For these reasons, we
determined that additional organic HAP reductions were not needed to
provide an ample margin of safety.
v. Mercury: With regard to mercury emissions from this source
category, our risk assessment indicated that, even based on our highly
conservative estimates of mercury emissions, emissions of mercury did
not appreciably contribute to risk based on both the inhalation and
multipathway risk analyses. Given that the work practice standard for
mercury is based on actual performance of the industry, we determined
that more stringent mercury standards were not required to provide an
ample margin of safety to protect public health.
Therefore, in conclusion, we have illustrated above that in the
2011 RTR proposal and 2012 RTR final rule, the EPA presented the ample
margin of safety analysis and the resulting decision. The ample margin
of safety analysis did not focus only on costs as alleged by the
petitioner. In addition to costs, we considered the human health
impacts, availability of controls, and technical feasibility of
applying available controls. The EPA is soliciting comment on the
determination the Secondary Lead Smelting NESHAP provides an ample
margin of safety (Question #14).
b. Other Petition for Reconsideration Items
Petitioners maintain that it was not feasible to comment on the
accidental release threshold and the paved road exemption for limited
use roads which were promulgated as part of work practice standards in
the 2012 RTR. We are not making any changes to the work practice
standards in the 2012 RTR. However, we are requesting public comment on
the accidental release threshold (Question #15) and the paved road
exemption for limited use roads (Question #16). The EPA will not
respond to comments addressing any other issues or any other provisions
of the 2012 rule not specifically addressed in this proposed
rulemaking.
6. Other Items
In addition to the proposed actions described above, we are
proposing additional revisions to the NESHAP. We are proposing
revisions to the SSM provisions of the NESHAP in order to ensure that
they are consistent with the decision in Sierra Club v. EPA, 551 F.3d
1019 (D.C. Cir. 2008), in which the court vacated two provisions that
exempted sources from the requirement to comply with otherwise
applicable CAA section 112(d) emission standards during periods of SSM.
We also are proposing other revisions to the General Provisions table
(Table 1), electronic reporting, and affirmative defense provisions.
Our analyses and proposed changes related to these issues are discussed
below.

[[Page 47282]]

a. SSM
Consistent with Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008),
which held that under CAA section 302(k), emissions standards or
limitations must be continuous in nature and that the SSM exemption
violates the CAA's requirement that some section 112 standards apply
continuously, the EPA established standards in the Secondary Lead
Smelting NESHAP for all periods of operation and removed references to
SSM provisions.\87\ As part of this proposal, we are addressing
outstanding SSM provisions by proposing to revise the General
Provisions Applicability Table (table 1) entries (Question #17) as
follows:
---------------------------------------------------------------------------

\87\ 77 FR 556 (January 5, 2012).
---------------------------------------------------------------------------

<bullet> 40 CFR 63.8(d)(3): change the ``Yes, except for last
sentence.'' in column ``Applies to Subpart X'' to ``No'' and add a
comment ``See Sec. 63.550(c)(15)'' which includes written CMS
procedures.
<bullet> 40 CFR 63.10(b)(2)(i): add a comment ``See Sec.
63.550(e)(13) for recordkeeping for startup and shutdown.''
<bullet> 40 CFR 63.10(b)(2)(ii): revise the comment to include
references to 40 CFR 63.550(c)(11) and (12) for recordkeeping related
to malfunctions.
<bullet> 40 CFR 63.10(b)(2)(iv)-(b)(2)(v): add a comment ``See
Sec. 63.550(c)(13)'' for identifying excess emissions.
<bullet> 40 CFR 63.10(c)(10)-(11): revise the comment to include
references to 40 CFR 63.550(c)(11) and (12) for recordkeeping related
to malfunctions.
<bullet> 40 CFR 63.10(d)(5): revise the comment to include a
reference to 40 CFR 63.550(e)(13).
Additionally, we are proposing to revise the references to no
standards for D/F for periods of startup and shutdown from 40 CFR
63.543(c) and from Table 2. The EPA recognizes dioxins and furans will
not be emitted during those periods. We are proposing work practices
standards during startup and shutdown where facilities ensure scrap
feed materials (including chlorinated plastics and flame retardants)
that contain the precursors needed for dioxin formation are not
introduced into the smelter so there are no conditions that could give
rise to D/F emissions. The EPA is soliciting comment on the proposed
work practice standards for D/F during startup and shutdown (Question
#18).
b. Other General Provisions Applicability Revisions to Table 1
We are also proposing to amend the General Provisions Applicability
Table entries (Question #19) as listed below to address changes in the
general provisions since the last rulemaking:
<bullet> 40 CFR 63.6(c)(1), (2): change the ``Yes'' in column
``Applies to Subpart X'' to a ``No'' and add the comment, ``see Sec.
63.546.''
<bullet> 40 CFR 63.6(c)(3), (4): change the ``Yes'' in column
``Applies to Subpart X'' to a ``No'' and add the comment, ``Section
Reserved.''
<bullet> 40 CFR 63.6(f)(2)-(3): add ``Yes'' in the column ``Applies
to Subpart X.''
<bullet> 40 CFR 63.9(k): Removing the comment ``Only as specified
in 63.9(j).''
<bullet> 40 CFR 63.10(d)(1)-(4): add 40 CFR 63.10(d)(1),
63.10(d)(2), 63.10(d)(3), and 63.10(d)(4), add ``No'' to column
``Applies to Subpart X'' and comment, ``see Sec. 63.9(k)'' for 40 CFR
63.10(d)(2), add ``No'' to column ``Applies to Subpart X'' for 40 CFR
63.10(d)(3), add ``Yes'' to column ``Applies to Subpart X'' for 40 CFR
63.10(d)(4).
<bullet> 40 CFR 63.12 to 63.15: Change to 40 CFR 63.12 to 63.16.
c. Electronic Reporting
The EPA is proposing to update and expand the electronic reporting
requirements to which owners and operators of secondary lead smelting
facilities are subject. The following report types (initial
notification of compliance, performance test reports, results of CEM
performance evaluations, Notification of Compliance Status (NOCS), and
semiannual excess emissions and CMS performance reports and summary
reports) will be submitted through the EPA's Central Data Exchange
(CDX) using the Compliance and Emissions Data Reporting Interface
(CEDRI). A description of the electronic data submission process is
provided in the memorandum Electronic Reporting Requirements for New
Source Performance Standards (NSPS) and National Emission Standards for
Hazardous Air Pollutants (NESHAP) Rules, available in the docket for
this action. Performance test results and performance evaluation
results of continuous emissions monitoring systems (CEMS) relative
accuracy test audits (RATAs) have been required to be submitted
electronically since January 1, 2012. We are proposing to revise the
regulatory text to reference the general provisions and that the
initial notification of compliance and the NOCS reports be submitted as
a PDF upload in CEDRI (Question #20).
For the semiannual excess emissions and CMS performance reports and
summary reports, we are proposing at 40 CFR 63.550(e)(15)(iii) that
owners and operators use the appropriate spreadsheet template to submit
information to CEDRI. The EPA is proposing to revise the recordkeeping
and reporting requirements at 40 CFR 63.550(c) and (e) which is
reflected in the template. A draft version of the proposed template for
these reports is included in the docket for this action.\88\ The EPA
specifically requests comment on the content, layout, and overall
design of the template (Question #21).
---------------------------------------------------------------------------

\88\
Secondary_Lead_Smelters_Semiannual_Excess_Emission_SMS_Performance_Re
port_Template, available at Docket ID. No. EPA-OAR-2025-0078.
---------------------------------------------------------------------------

The electronic submittal of the reports addressed in this proposed
rulemaking will increase the usefulness of the data contained in those
reports, is in keeping with current trends in data availability and
transparency, will further assist in the protection of public health
and the environment, will improve compliance by facilitating the
ability of regulated facilities to demonstrate compliance with
requirements and by facilitating the ability of delegated state, local,
tribal, and territorial air agencies and the EPA to assess and
determine compliance, and will ultimately reduce burden on regulated
facilities, delegated air agencies, and the EPA. Electronic reporting
also eliminates paper-based, manual processes, thereby saving time and
resources, simplifying data entry, eliminating redundancies, minimizing
data reporting errors, and providing data quickly and accurately to the
affected facilities, air agencies, the EPA, and the public.
d. Affirmative Defense
As part of the 2012 RTR \89\ the EPA included the ability to assert
an affirmative defense to civil penalties for violations caused by
malfunctions.\90\ Although the EPA recognized that its case-by-case
enforcement discretion provided sufficient flexibility under such
circumstances, we included the affirmative defense provision to provide
a more formalized approach and greater regulatory clarity. Under the
EPA's regulatory affirmative defense provisions, if a source could
demonstrate in a judicial or administrative proceeding that it had met
the requirements of the affirmative defense in the regulation, civil
penalties would not be assessed. However, in NRDC, the D.C. Circuit
vacated an affirmative defense provision in another CAA section 112
regulation, finding that the EPA lacked authority to establish such an
affirmative defense because the authority to determine civil penalty
amounts in such cases lies exclusively

[[Page 47283]]

with the courts, not the EPA.\91\ In response to this decision, the EPA
is proposing to remove the affirmative defense provisions previously
established in the Secondary Lead Smelting NESHAP at 40 CFR 63.552 in
their entirety and the definition of ``affirmative defense'' at 40 CFR
63.542. The EPA initially added the affirmative defense provisions in
the Secondary Lead Smelting NESHAP in 2012, specifically describing the
affirmative defense in the preamble as an ``affirmative defense to
civil penalties for exceedances of emission limits that are caused by
malfunctions.'' \92\ The regulatory language narrowly defines this
affirmative defense as an ``affirmative defense to civil penalties for
exceedances of emissions limit during malfunction.'' \93\ As explained
above, if a source is unable to comply with emissions standards as a
result of a malfunction, the EPA may use its case-by-case enforcement
discretion to provide flexibility, as appropriate. Further, as the
court recognized in the NRDC decision, in an EPA or citizen enforcement
action, the court has the discretion to consider any defense raised and
determine whether penalties are appropriate.\94\ The same is true for
the presiding officer in EPA administrative enforcement actions.
---------------------------------------------------------------------------

\89\ 77 FR 556 (January 1, 2012).
\90\ 40 CFR 63.542.
\91\ NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014) (vacating
affirmative defense provisions in the CAA section 112 rule
establishing emission standards for Portland cement kilns).
\92\ 77 FR 556 (January 5, 2012).
\93\ 40 CFR 63.552.
\94\ Cf. NRDC, 749 F.3d at 1063 (arguments that violation was
caused by unavoidable technology failure can be made to the courts
in future civil cases when the issue arises).
---------------------------------------------------------------------------

The EPA previously proposed to remove the affirmative defense
provisions from the Secondary Lead Smelting NESHAP as part of a
proposed rule entitled Removal of Affirmative Defense Provisions from
Specified New Source Performance Standards and National Emissions
Standards for Hazardous Air Pollutants.\95\ We now propose the removal
of these provisions as part of this action. We are soliciting comment
on our proposal to remove the affirmative defense provisions from the
Secondary Lead Smelting NESHAP as part of this rulemaking (Question
#22). Comments previously submitted on the prior proposed rule will not
be considered as part of this action and must be submitted to the
docket for this action in order to be considered.\96\
---------------------------------------------------------------------------

\95\ 89 FR 52425 (June 24, 2024).
\96\ Docket ID No. EPA-HQ-OAR-2025-0078. The EPA intends to take
appropriate final action on the remainder of that proposed rule in a
separate action at the appropriate time.
---------------------------------------------------------------------------

Additionally, on September 5, 2025, the D.C. Circuit held in SSM
Litigation Group v. EPA, Case No. 23-1267, that although EPA has no
authority under the CAA to ``create a regulatory `defense' that limits
the remedial authority granted by Congress to the federal courts,'' a
``complete affirmative defense, like the one at issue [in that case],
is permissible because it relates to the antecedent question of
liability and therefore does not impinge on the judiciary's authority
to award `appropriate civil penalties.' '' \97\ As previously noted,
this affirmative defense provision for which EPA is now proposing
removal is only for civil penalties and is not a complete affirmative
defense as contemplated by the D.C. Circuit in the SSM Litigation Group
decision. Due to the timing of the D.C. Circuit's decision in SSM
Litigation Group and the Agency's consent decree deadline to issue this
proposed action, the Agency is proposing to remove the existing
affirmative defense in response to the NRDC decision while reserving
the issue of affirmative defenses more generally for the future.
---------------------------------------------------------------------------

\97\ Slip Op. at 10-11 (quoting CAA 304(a), 42 U.S.C. 7604(a)).
---------------------------------------------------------------------------

The EPA therefore requests comment on whether and how we should
establish regulations within this and other New Source Performance
Standards or NESHAPs in response to the D.C. Circuit's SSM Litigation
Group decision. Due to the timing of the D.C. Circuit decision and the
Agency's consent decree deadline, the EPA will address the impacts of
the SSM Litigation Group decision in an appropriate future action. The
EPA is soliciting comment on the proposed removal of this affirmative
defense provision for civil penalties (Question #23).
e. Hydrometallurgical and Electrometallurgical Lead Processing
On February 5, 2016, the EPA received a petition for a new
rulemaking from Sierra Club and California Communities Against
Toxics.\98\ The petition requested that the EPA revise the provisions
on applicability and definitions in the Secondary Lead Smelting NESHAP.
The petition was submitted in response to a published notice of
proposed action on an application for an operating permit submitted by
Aqua Metals, Inc. to the Nevada Department of Environmental Protection.
The permit concerned plans to construct and operate a used lead acid
battery recycler, also known as a secondary lead processing facility.
The proposed facility intended to recycle lead acid car batteries using
hydrometallurgical and electrometallurgical lead processing techniques
rather than using typical pyrometallurgic lead technology. The permit
application did not include terms or conditions to comply with the
Secondary Lead Smelting NESHAP, as the facility did not believe the
NESHAP was applicable due to the applicability requirements and current
definitions of affected sources. This facility later shut down, and
hence the EPA did not act on the petition. The EPA has recently been
notified of a new facility intending to operate a secondary lead
recycling facility that will operate non-pyrometallurgic lead recycling
processes. The EPA is requesting information about these non-
pyrometallurgic processes to aid in determining the most appropriate
way to address this type of secondary lead recycling (Question #24).
---------------------------------------------------------------------------

\98\ U.S. Environmental Protection Agency. (Last updated Feb. 5,
2016). Petition for Rulemaking on NESHAP from Secondary Lead
Smelting: <a href="https://www.epa.gov/sites/default/files/2016-10/documents/secleadpetfornewrulemakingearthjustice5feb16.pdf">https://www.epa.gov/sites/default/files/2016-10/documents/secleadpetfornewrulemakingearthjustice5feb16.pdf</a>.
---------------------------------------------------------------------------

C. What compliance dates are we proposing, and what is the rationale
for the proposed compliance dates?

The proposed amendments to the Secondary Lead Smelting NESHAP in
this action are subject to the compliance timeframes in CAA section
112(i).\99\ We expect most existing sources can comply with the
amendments without modification.
---------------------------------------------------------------------------

\99\ 42 U.S.C. 7412(i).
---------------------------------------------------------------------------

We are proposing the following amendment to be effective upon
publication of the final rule: the provision that a performance test
extension request will be deemed approved under certain circumstances;
and the use of fan amperage to demonstrate compliance with the total
enclosure requirement as an alternative to differential pressure
monitoring.
We are proposing to allow six months to comply with the amendments
to recordkeeping and reporting of malfunctions and deviations and the
D/F work practice standards during startup and shutdown and the
increased averaging period for differential pressure monitoring. This
additional compliance time allows facilities to read and the
requirements and modify their procedures accordingly.
We are proposing to allow one year for the use of the CEDRI
reporting template and compliance with the D/F and THC limits for
collocated rotary and reverberatory furnaces. For the CEDRI reporting
template we are proposing,

[[Page 47284]]

facilities submit semiannual excess emissions and CMS performance
reports to the Administrator using the template beginning 1 year after
publication of the final rule in the Federal Register or once the
report template for 40 CFR part 63, subpart X has been available on the
CEDRI website for one year, whichever date is later.
The EPA estimates that only one existing source would need time to
comply with the proposed collocated rotary and reverberatory furnace
limits. This facility needs time to establish contracts with testing
companies and arrange for and conduct the performance testing.
Therefore, we are proposing to allow one year for existing sources to
comply with the collocated rotary and reverberatory furnace THC and D/F
emission limits.
As provided in CAA section 112(i), for all affected sources that
commenced construction or reconstruction after October 1, 2025, we are
proposing that owners and operators comply with the provisions by the
effective date of the final rule (or upon startup, whichever is later).
The effective date is the date of publication of the final amendments
in the Federal Register.
We solicit comment on these proposed compliance periods, and we
specifically request submission of information from sources in this
source category regarding specific actions that would need to be
undertaken to comply with the proposed amended provisions and the time
needed to make the adjustments for compliance with any of the revised
provisions (Question #25).

IV. Summary of Cost, Environmental, and Economic Impacts

A. What are the affected sources?

There are currently 11 secondary lead smelting facilities in the
United States. The list of facilities is available in the document
titled List of Facilities Subject to the Secondary Lead Smelting
NESHAP, which is available in the docket for this rulemaking.\100\ We
anticipate that no new secondary lead smelting facilities, as currently
defined, will become subject to the NESHAP in the next eight years.
---------------------------------------------------------------------------

\100\ Docket ID No. EPA-HQ-OAR-2025-0078.
---------------------------------------------------------------------------

B. What are the air quality impacts?

We do not anticipate any air quality impacts due to this
rulemaking. We are setting a MACT Floor for THC and D/F rotary furnaces
but do not anticipate any reductions of THC and D/F. There is only one
collocated rotary and reverberatory furnace in the source category and
the limit reflects current controls on this furnace.

C. What are the cost impacts?

We anticipate limited costs associated with this rulemaking. The
THC and D/F testing requirement for collocated rotary and reverberatory
furnaces only applies to one facility. We anticipate the costs of
testing and recordkeeping and reporting to be approximately $70,700 for
the first year of testing. The estimated D/F testing costs every 6
years are $30,000 per test and the estimated annual THC testing costs
are $10,000 per test. The estimated recordkeeping and reporting costs
are $30,700 for the first year.

D. What are the economic impacts?

As described above, costs were estimated for the first 8 years
(2027--2034) following this action. This allows for a reasonable and
consistent timeframe over which to examine impacts of this action from
a present value (PV) perspective. The PV in 2023 dollars is a cost of
approximately $180,000 using a 3 percent discount rate and $160,000
using a using a 7 percent discount rate. The equivalent annualized
value in 2023 dollars is a cost of approximately $26,000 using a
discount rate of 3 percent and $26,000 using a discount rate of 7
percent. Given the results of the analysis, these economic impacts are
relatively low for affected industries and entities impacted by this
proposed rule, and there will not be substantial impacts on the markets
for affected products. The costs of the proposed rule are not expected
to result in a significant market impact, regardless of whether they
are passed on to the purchaser or absorbed by the companies.
The EPA performed a screening analysis to assess potential impacts
of this action on small entities. Based on the small entity size
standards defined by the U.S. Small Business Administration (SBA), the
EPA determined that 4 of the 11 facilities affected by this action are
ultimately owned by parent companies that are small entities. None of
these small entities are expected to incur significant impacts. The
only entity that is expected to be impacted by the additional testing
costs from this rule is not considered a small business. Therefore, the
EPA has determined that this rule will not have a significant impact on
a substantial number of small entities (i.e., no SISNOSE).

E. What are the benefits?

We do not anticipate emissions reductions from the proposed THC and
D/F standards for collocated rotary and reverberatory furnaces. Some
benefits may result from the revised provision allowing a 24-month
extension for compliance testing, if finalized as proposed, as the
requirements to receive the extension will encourage facilities to
operate below 50 percent of the lead and THC limits, encouraging
individual facilities to be top performers for emissions reductions. We
are unsure of the number of facilities that may meet the requirements.
Therefore, we cannot estimate potential benefits of this proposed
provision.

V. Request for Comments

We solicit comments on this proposed action. In addition to general
comments on this proposed action, we are also interested in additional
data that may improve the analyses. We are specifically interested in
receiving any information regarding developments in practices,
processes, and control technologies that reduce HAP emissions.
The EPA is soliciting comment on the following:
<bullet> Question #1: Whether we should consider any additional
developments not addressed here or in the technical memorandum.
<bullet> Question #2: On the determination that a baghouse routed
to a WESP is not cost-effective.
<bullet> Question #3: Our determination not to propose fenceline
monitoring for the secondary lead smelting source category.
<bullet> Question #4: The proposed THC and D/F limits and beyond-
the-floor rationale.
<bullet> Question #5: The proposed collocated rotary and
reverberatory furnace definition.
<bullet> Question #6: On setting the THC and D/F standards pursuant
to CAA section 112(d)(6) rather than setting the THC and D/F standards
exclusively pursuant to CAA section 112(d)(2) and (3).
<bullet> Question #7: On proposing THC as a surrogate for COS.
<bullet> Question #8: On whether the Agency's proposed de minimis
treatment here for HCl and Cl<INF>2</INF> for the secondary lead
smelting source category could be considered a change in Agency
position.
<bullet> Question #9: On all aspects of the Agency's proposed
determination, including the Agency's statutory interpretation and
factual findings.
<bullet> Question #10: On whether to adopt a MACT HCl limit of 0.03
lb/hr in lieu of the de minimis determination.
<bullet> Question #11: On increasing the differential pressure
monitor averaging time.

[[Page 47285]]

<bullet> Question #12: On allowing monitoring of total enclosure at
negative pressure through the use of fan amperage.
<bullet> Question # 13: On the approval of the 24-month testing
extensions under certain circumstances.
<bullet> Question #14: On the determination the Secondary Lead
Smelting NESHAP provides an ample margin of safety.
<bullet> Question #15: On the accidental release threshold.
<bullet> Question #16: On the paved road exemption for limited use
roads.
<bullet> Question #17: On changes removing the General Provisions
Applicability Table (Table 1) entries to address SSM.
<bullet> Question #18: On the proposed work practice standards for
D/F during startup and shutdown.
<bullet> Question #19: On the proposed changes to the General
Provisions Applicability Table entries.
<bullet> Question #20: On the proposed changes regulatory text to
reference the general provisions and that the initial notification of
compliance and the NOCS reports be submitted as a PDF upload in CEDRI.
<bullet> Question #21: On the content, layout, and overall design
of the template.
<bullet> Question #22: On our proposal to remove the affirmative
defense provisions from the Secondary Lead Smelting NESHAP as part of
this rulemaking.
<bullet> Question #23: On the proposed removal of the affirmative
defense provision for civil penalties.
<bullet> Question #24: On the non-pyrometallurgic processes to aid
in determining the most appropriate way to address non-pyrometallurgic
secondary lead recycling.
<bullet> Question #25: On the proposed compliance periods, and we
specifically request submission of information from sources in this
source category regarding specific actions that would need to be
undertaken to comply with the proposed amended provisions and the time
needed to make the adjustments for compliance with any of the revised
provisions.
<bullet> Question #26: On the EPA's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule.
<bullet> Question #27: Any potentially applicable VCS and to
explain why such standards should be used in this regulation.

VI. Statutory and Executive Order Reviews

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

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

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

B. Executive Order 14192: Unleashing Prosperity Through Deregulation

This action is not expected to be an Executive Order 14192
regulatory action because this action is not significant under
Executive Order 12866.

C. Paperwork Reduction Act (PRA)

The information collection activities in this proposed rule have
been submitted for approval to the OMB under the PRA. The ICR document
that the EPA prepared has been assigned EPA ICR number 2060-0296. You
can find a copy of the ICR in the docket for this rule, and it is
briefly summarized here.
Respondents/affected entities: Owners or operators of secondary
lead smelting facilities.
Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart X).
Estimated number of respondents: 11.
Frequency of response: Initially, semiannually, and annually.
Total estimated burden: 100 hours (per year). Burden is defined at
5 CFR 1320.3(b).
Total estimated cost: Average annual cost is $34,000 (per year)
which includes $0 annualized capital or operation and maintenance
costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the EPA's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule (Question #26). You may also send your ICR-
related comments to OMB's Office of Information and Regulatory Affairs
via email to <a href="/cdn-cgi/l/email-protection#1c53554e5d436f697e71756f6f7573725c73717e3279736c327b736a">[email&#160;protected]</a>, Attention: Desk Officer for
the EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after receipt, OMB must receive comments no
later than October 31, 2025. The EPA will respond to any ICR-related
comments in the final rule.

D. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the EPA concludes that the impact of concern
for this rule is any significant adverse economic impact on small
entities and that the EPA is certifying that this rule will not have a
significant economic impact on a substantial number of small entities
because the rule has no net burden on the small entities subject to the
rule. We identified that four of the 11 facilities in the secondary
lead smelting source category affected by this proposed action are
small businesses. The EIA conducted for this proposal (see Economic
Impact Analysis, which is available in the docket for this action)
showed that the small businesses will not incur total annualized costs
greater than 1 percent of their revenue. We have therefore concluded
that this action will have no net regulatory burden for all directly
regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

This action does not contain an unfunded mandate of $100 million
(adjusted annually for inflation) or more (in 1995 dollars) as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or
uniquely affect small governments. The costs involved in this action
are estimated not to exceed $187 million in 2024$ ($100 million in
1995$ adjusted for inflation using the gross domestic product implicit
price deflator) or more in any 1 year.

F. Executive Order 13132: Federalism

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

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

This action does not have tribal implications as specified in
Executive Order 13175. None of the facilities that have been identified
as being affected by this action are owned or operated by tribal
governments or are located within tribal lands. Thus, Executive Order
13175 does not apply to this action.

[[Page 47286]]

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

Executive Order 13045 directs Federal agencies to include an
evaluation of the health and safety effects of the planned regulation
on children in Federal health and safety standards and explain why the
regulation is preferable to potentially effective and reasonably
feasible alternatives. This action is not subject to Executive Order
13045 because the EPA does not believe the environmental health risks
or safety risks addressed by this action present a disproportionate
risk to children. Emissions from this source category include HAP like
lead and arsenic which are known developmental toxicants. However, the
controls required in 2012 already reduced the modeled exposure to HAP
from these facilities to below levels of public health concern (77 FR
556; January 5, 2012). Therefore, this action does not present or
address disproportionate risk to children. However, the EPA's Policy on
Children's Health applies to this action.
The EPA does not believe there are disproportionate risks to
children because the Secondary Lead Smelting NESHAP currently has lead
emissions limits for process vents and process fugitives. In 2012, we
estimated the required controls would result in modeled lead
concentrations such that there would be no one living at a census block
centroid exposed to ambient concentrations above the NAAQS, thereby
mitigating the risk of future adverse health effects to children. The
modeled concentration data are supported by fenceline monitoring
conducted during the CAA section 114 information request which showed
ambient lead levels well below the lead NAAQS limit of 0.15 micrograms
per cubic meter 3-month rolling average limit at the fenceline for all
but one facility (this one facility is currently subject to a state
consent agreement). The fenceline monitoring conducted also included
testing for arsenic which we found to be below levels of concern.
Additionally, we are updating monitoring, recordkeeping, and reporting
requirements to help improve compliance reporting, which also benefits
children's health.

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

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

J. National Technology Transfer and Advancement Act (NTTAA)

This action involves technical standards. The EPA proposes to use
the voluntary consensus standard (VCS) discussed below. The EPA
searched the Enhanced National Standards Service Network (NSSN)
database maintained by the American National Standards Institute (ANSI)
for VCS that could be used in the Secondary Lead Smelting NESHAP. While
we have made a reasonable effort to identify and evaluate potentially
practical VCS, our findings do not necessarily represent all potential
alternative standards which may exist.
Searches were conducted for EPA Methods 1, 2, 3A, 3B, 4, 5D, 12,
23, 25A, and 29 of 40 CFR part 60, appendix A. We found no VCS are
acceptable alternatives for EPA Methods 1, 2, 3A, 4, 5D, 12, 23, 25A
and 29.
One VCS is an acceptable alternative to EPA Method 3B for this
rule. The manual methods in ANSI/ASME PTC 19-10-1981 Part 10, ``Flue
and Exhaust Gas Analyses'' (2010 version) are acceptable alternatives
to EPA Method 3B to analyze O<INF>2</INF> and carbon dioxide
(CO<INF>2</INF>) concentrations in the stack gas. The instrumental
methods in the VCS ANSI/ASME PTC 19-10-1981 Part 10, ``Flue and Exhaust
Gas Analyses'' (2010 version) are not acceptable alternatives to EPA
Method 3B. The manual methods are available at the ANSI, 1899 L Street
NW, 11th Floor, Washington, DC 20036 and the American Society of
Mechanical Engineers (ASME), Three Park Avenue, New York, NY 10016-
5990; telephone number: 1-800-843-5990; and email address:
<a href="/cdn-cgi/l/email-protection#25465056514a4840574644574065445648400b4a5742">[email&#160;protected]</a>. See <a href="http://www.ansi.org">www.ansi.org</a> and <a href="http://www.asme.org">www.asme.org</a>. The standard
is available to everyone at a cost determined by ANSI/ASME ($88). ANSI/
ASME also offer memberships or subscriptions for reduced costs. The
cost of obtaining these methods is not a significant financial burden,
making the methods reasonably available.
Under 40 CFR 63.7(f) and 40 CFR 63.8(f), subpart A--General
Provisions, a source may apply to the EPA for permission to use
alternative test methods or alternative monitoring requirements in
place of any required testing methods, performance specifications, or
procedures in the final rule or any amendments.
The EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially
applicable VCS and to explain why such standards should be used in this
regulation (Question #27).
The EPA proposes to amend 40 CFR 63.14 to incorporate by reference
for one VCS: ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analysis
[Part 10, Instruments and Apparatus], issued August 31, 1981, IBR
requested for 40 CFR 63.1450(a)(iii), (b)(iii), (d)(iii), and (e)(iii).
This method is an approved alternative to EPA Method 3B manual portion
only, not the instrumental portion. The applicable portion of this
Performance Test Code is the wet chemical manual procedures, apparatus
and calculations for quantitatively determining O<INF>2</INF>,
CO<INF>2</INF>, carbon monoxide and nitrogen from stationary combustion
sources.

List of Subjects in 40 CFR Part 63

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

Lee Zeldin,
Administrator.
[FR Doc. 2025-19155 Filed 9-30-25; 8:45 am]
BILLING CODE 6560-50-P

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