13852 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2002–0017; FRL–9278–5] 

RIN 2060–AN99 

National Emission Standards for 

Hazardous Air Pollutants: Mercury 

Emissions From Mercury Cell ChlorAlkali Plants 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Supplemental proposed rule. 

SUMMARY: This action proposes 

amendments to the national emission 

standards for hazardous air pollutants 

(NESHAP) for mercury emissions from 

mercury cell chlor-alkali plants 

(Mercury Cell NESHAP). On June 11, 

2008, EPA proposed amendments to this 

NESHAP in response to a petition for 

reconsideration filed by the Natural 

Resources Defense Council (NRDC). 

This action is a supplement to the June 

11, 2008, proposal. Specifically, this 

action proposes two options for 

amending the NESHAP for mercury 

emissions from mercury cell chlor-alkali 

plants. The first option would require 

the elimination of mercury emissions 

and thus encourage the conversion to 

non-mercury technology. The second 

option would require the measures 

proposed in 2008. These measures, 

which included significant 

improvements in the work practices to 

reduce fugitive emissions from the cell 

room, would result in near-zero levels of 

mercury emissions while still allowing 

the mercury cell facilities to continue to 

operate. We are specifically requesting 

comment on which of these options is 

more appropriate, and may finalize 

either option or a combination of 

elements from them. In addition, this 

action proposes several amendments 

that would apply regardless of which 

option we select. These proposed 

amendments are provisions of the 

existing NESHAP that would apply to 

periods of startup, shutdown, and 

malfunction (SSM), and corrections to 

compliance errors in the currently 

effective rule. 

DATES: Comments must be received on 

or before May 13, 2011. Under the 

Paperwork Reduction Act, comments on 

the information collection provisions 

must be received by the Office of 

Management and Budget (OMB) on or 

before April 13, 2011. 

Public Hearing. If anyone contacts 

EPA by March 29, 2011 requesting to 

speak at a public hearing, EPA will hold 

a public hearing on April 13, 2011. If a 

public hearing is held, it will be held at 

EPA’s Campus located at 109 T.W. 

Alexander Drive in Research Triangle 

Park, NC, or an alternate site nearby. 

Contact Virginia Hunt at (919) 541–0832 

to request a hearing, to determine if a 

hearing will be held, or to determine the 

hearing location. If no one contacts EPA 

requesting to speak at a public hearing 

concerning this proposed rule by March 

29, 2011, the hearing will be cancelled 

without further notice. 

ADDRESSES: You may submit comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2002–0017, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov: Follow the 

instructions for submitting comments. 

• Agency Web Site: http:// 

www.epa.gov/oar/docket.html. Follow 

the instructions for submitting 

comments on the EPA Air and Radiation 

Docket Web site. 

• E-mail: a-and-r-docket@epa.gov. 

Include Docket ID No. EPA–HQ–OAR– 

2002–0017 in the subject line of the 

message. 

• Fax: (202) 566–9744. 

• Mail: National Emission Standards 

for Hazardous Air Pollutants for 

Mercury Cell Chlor-alkali Plants Docket, 

Environmental Protection Agency, EPA 

Docket Center (EPA/DC), Air and 

Radiation Docket, Mail Code 2822T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. Please include a 

total of two copies. In addition, please 

mail a copy of your comments on the 

information collection provisions to the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget (OMB), Attn: Desk Officer for 

EPA, 725 17th St., NW., Washington, DC 

20503. 

• Hand Delivery: EPA Docket Center, 

Public Reading Room, EPA West, Room 

3334, 1301 Constitution Ave., NW., 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2002– 

0017. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

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, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the National Emission Standards for 

Hazardous Air Pollutants for Mercury 

Cell Chlor-alkali Plants Docket, EPA/ 

DC, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Sharon Nizich, Sector Policies and 

Programs Division, Office of Air Quality 

Planning and Standards (D243–02), 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711, telephone number: (919) 541– 

2825; fax number: (919) 541–5450; 

e-mail address: nizich.sharon@epa.gov. 

SUPPLEMENTARY INFORMATION: 

The supplementary information in 

this preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. What should I consider as I prepare my 

comments to EPA? 


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C. Where can I get a copy of this 

document? 

D. When would a public hearing occur? 

II. Background Information 

A. What is the history of the Mercury Cell 

NESHAP? 

B. What petitions were filed after 

promulgation of the Mercury Cell 

NESHAP in 2003? 

C. What were the reconsideration decisions 

proposed in 2008? 

D. What current legislation is related to 

this effort? 

III. Summary of Proposed Amendments 

A. What is the non-mercury technology 

option (Option 1)? 

B. What is the enhanced work practices 

option (Option 2)? 

C. What amendments are being proposed 

that are independent of which option is 

selected? 

IV. Request for Comment 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health and 

Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Does this action apply to me? 

The regulated categories and entities 

potentially affected by this proposed 

action include: 

Category NAICS code1 Examples of regulated entities 

Industry ..................................................... 325181 Alkalis and Chlorine Manufacturing. 

Federal government .................................. ........................ Not affected. 

State/local/Tribal government ................... ........................ Not affected. 

1 North American Industry Classification System. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. To determine 

whether your facility would be 

regulated by this action, you should 

examine the applicability criteria in 

40 CFR 63.7682 of subpart IIIII, National 

Emission Standards for Hazardous Air 

Pollutants (NESHAP): Mercury 

Emissions from Mercury Cell ChlorAlkali (hereafter called the ‘‘2003 

Mercury Cell NESHAP’’). If you have 

any questions regarding the 

applicability of this action to a 

particular entity, consult either the air 

permitting authority for the entity or 

your EPA regional representative as 

listed in 40 CFR 63.13 of subpart A 

(General Provisions). 

B. What should I consider as I prepare 

my comments to EPA? 

Do not submit information containing 

CBI to EPA through http:// 

www.regulations.gov or e-mail. Send or 

deliver information identified as CBI 

only to the following address: Roberto 

Morales, OAQPS Document Control 

Officer (C404–02), Environmental 

Protection Agency, Office of Air Quality 

Planning and Standards, Research 

Triangle Park, North Carolina 27711, 

Attention Docket ID EPA–HQ–OAR– 

2002–0017. Clearly mark the part or all 

of the information that you claim to be 

CBI. For CBI information in a disk or 

CD ROM that you mail to EPA, mark the 

outside of the disk or CD ROM as CBI 

and then identify electronically within 

the disk or CD ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

C. Where can I get a copy of this 

document? 

In addition to being available in the 

docket, an electronic copy of this 

proposed action will also be available 

on the World Wide Web (WWW) 

through the Technology Transfer 

Network (TTN). Following signature, a 

copy of this proposed action will be 

posted on the TTN’s policy and 

guidance page for newly proposed or 

promulgated rules at the following 

address: http://www.epa.gov/ttn/oarpg/. 

The TTN provides information and 

technology exchange in various areas of 

air pollution control. 

D. When would a public hearing occur? 

If anyone contacts EPA requesting to 

speak at a public hearing concerning the 

proposed amendments by March 24, 

2011, we will hold a public hearing on 

April 13, 2011. If you are interested in 

attending the public hearing, contact 

Ms. Virginia Hunt at (919) 541–0832 to 

verify that a hearing will be held. If a 

public hearing is held, it will be held at 

10 a.m. at the EPA’s Environmental 

Research Center Auditorium, Research 

Triangle Park, NC, or an alternate site 

nearby. 

II. Background Information 

A. What is the history of the Mercury 

Cell NESHAP? 

On December 19, 2003, EPA 

promulgated the 2003 Mercury Cell 

NESHAP (40 CFR part 63, subpart IIIII, 

68 FR 70904). This rule for mercury cell 

chlor-alkali plants implements section 

112(d) of the Clean Air Act (CAA), 

which requires all categories and 

subcategories of major sources listed 

under section 112(c) to meet hazardous 

air pollutant emission standards 

reflecting the application of the 

maximum achievable control 

technology (MACT). Mercury cell chloralkali plants are a subcategory of the 

chlorine production source category 

listed under the authority of section 

112(c)(1) of the CAA. In addition, 

mercury cell chlor-alkali plants are 

listed as an area source category under 

section 112(c)(3) and (k)(3)(B) of the 

CAA. The 2003 Mercury Cell NESHAP 

satisfied our requirement to issue 112(d) 

regulations under each of these listings 

(for mercury). The 2003 Mercury Cell 

NESHAP required both existing major 

and area sources to meet mercury 

emission limits on stack emission 

sources from both chlorine production 

and from the recovery of mercury from 

wastes and other scrap in mercury 

thermal recovery units. The 2003 

Mercury Cell NESHAP also required the 

facilities to monitor and minimize 

fugitive mercury emissions from the cell 

room by conducting either daily work 

practices or work practices performed in 

response to high levels of mercury 

emissions determined from continuous 

mercury monitoring. The 2003 rule 

required facilities to comply with 


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applicable emission limitations and 

work practice requirements at all times, 

except during periods of SSM. Finally, 

the 2003 Mercury Cell NESHAP 

prohibited mercury emissions from new 

and reconstructed facilities. 

B. What petitions were filed after 

promulgation of the Mercury Cell 

NESHAP in 2003? 

On February 17, 2004, the NRDC 

submitted an administrative petition to 

EPA asking us to reconsider several 

aspects of the 2003 Mercury Cell 

NESHAP under CAA section 

307(d)(7)(B). On the same day as the 

administrative petition, NRDC and the 

Sierra Club also filed a petition for 

judicial review of the 2003 Mercury Cell 

NESHAP in the U.S. Court of Appeals 

for the DC Circuit (Civ. No. 04–1048). 

By a letter dated April 8, 2004, Jeffrey 

Holmstead, then-EPA Assistant 

Administrator for the Office of Air and 

Radiation, notified the NRDC that EPA 

had granted NRDC’s petition for 

reconsideration of the 2003 Mercury 

Cell NESHAP. On July 20, 2004, the 

Court granted EPA’s motion to hold the 

case for judicial review in abeyance 

pending EPA’s action on the 

reconsideration of the 2003 Mercury 

Cell NESHAP. 

C. What were the reconsideration 

decisions proposed in 2008? 

On June 11, 2008 (73 FR 33257), EPA 

responded to NRDC’s petition for 

reconsideration. In their petition, NRDC 

asked EPA to reconsider five issues: (1) 

The decision to develop a set of work 

practice requirements under CAA 

section 112(h) in lieu of a numeric 

emission limitation for cell rooms; (2) 

the decision to make the promulgated 

work practices optional for sources that 

choose to undertake continuous 

monitoring; (3) the decision to not 

require existing facilities to convert to a 

non-mercury chlorine manufacturing 

process; (4) the elimination of the 

previously applicable part 61 rule’s 

2,300 grams/day plant-wide emission 

limitation; and (5) the decision to create 

a subcategory of mercury cell chloralkali plants within the chlorine 

production category. In the 2008 

proposal, EPA addressed each of these 

issues and proposed amendments where 

we determined them to be appropriate. 

Following are brief summaries of our 

reconsideration decisions. For a full 

explanation of these decisions and the 

rationale supporting them, please see 

the preamble for the June 11, 2008 

proposal (73 FR 33258). The 2008 

proposed amendments, which are being 

co-proposed in this action as Option 2, 

are discussed in section III.B of this 

document. 

In addition, while not specifically 

listed as a major issue in their petition, 

the uncertainty related to the magnitude 

of fugitive mercury emissions was 

clearly a basis for much of NRDC’s 

concern. This was also addressed in the 

2008 proposal and is summarized below 

after the five specific issues cited by 

NRDC in the petition. 

1. Emission Limitation for Cell Room 

In its petition for reconsideration, 

NRDC stated that EPA failed to 

adequately justify that a numeric 

emission limitation was not feasible per 

the criteria prescribed in section 112(h) 

of the CAA. In our 2008 reconsideration, 

we concluded that it is not feasible to 

prescribe or enforce an emission 

limitation for fugitive emissions from 

the cell room. We maintained that 

fugitive emissions from mercury cells 

and associated equipment are a clear 

example of the type of situation to be 

addressed by the provisions of section 

112(h). The various points which led to 

our opinion on the feasibility of 

establishing an emission standard were 

discussed in detail in the 2008 proposal 

(73 FR 33267–33271). In summary, 

consistent with CAA section 112(h), we 

believe that it is not feasible to prescribe 

or enforce an emission standard in this 

case. There are two independent bases 

for this conclusion. First, consistent 

with CAA section 112(h)(2)(A), we 

concluded that fugitive mercury 

emissions from a mercury cell chloralkali plant cannot be emitted through 

a conveyance designed and constructed 

to emit or capture such pollutant. 

Second, consistent with CAA section 

112(h)(2)(B), we established that the 

application of measurement technology 

to mercury cell rooms is not practicable 

due to technological and economic 

limitations. 

2. Optional Work Practices 

The 2003 Mercury Cell NESHAP 

requires facilities to follow a set of 

detailed work practices. The NESHAP 

also allows facilities to institute a cell 

room monitoring program to 

continuously monitor the mercury 

vapor concentration in the upper 

portion of each cell room as an 

alternative to these work practice 

standards. One of the objections raised 

by NRDC was that this provision 

backtracked from the Agency’s proposed 

work practice standards. NRDC pointed 

out that in the development of the 

Mercury Cell NESHAP, EPA concluded 

that the housekeeping activities that 

facilities in the industry follow to 

comply with the part 61 mercury 

NESHAP (40 CFR 61, subpart E) 

represented the MACT floor and that 

requiring practices based upon the most 

detailed activities in the industry (i.e., 

‘‘beyond-the-floor’’ practices) was 

justified. But NRDC was concerned 

because the work practices in the 2003 

Mercury Cell NESHAP were optional if 

facilities chose to do continuous 

monitoring and, therefore, this option 

would allow sources to avoid 

conducting activities that represent the 

MACT floor. NRDC argued that this was 

a violation of section 112(d)(3) of the 

CAA, which requires all facilities to 

meet the MACT floor. 

As a result of our consideration of 

NRDC’s point, we included proposed 

amendments in 2008 that would require 

that all plants institute a cell room 

monitoring program and comply with 

work practice standards (73 FR 33271– 

33272). As part of today’s action, we are 

re-proposing the combination of work 

practices and cell room monitoring 

program as option 2. The specific 

proposed amendments are discussed in 

section III.B of this document. 

3. Requiring Conversion to a NonMercury Chlorine Manufacturing 

Process 

In its petition, NRDC argued that the 

2003 Mercury Cell NESHAP does 

nothing to limit the use of mercury cell 

technology by existing chlor-alkali 

plants, and that the Agency ignored a 

known technique for reducing mercury 

emissions from this industry, namely, 

conversion to non-mercury processes. 

According to NRDC, requiring the 

industry to convert to a non-mercury 

process is cost-justified and would 

provide significant non-air quality 

benefits. In response to NRDC’s 

concerns that we did not evaluate the 

conversion of mercury cell chlor-alkali 

production plants to non-mercury 

technology, we performed an analysis to 

estimate the capital and annual costs of 

this action. In performing the analysis, 

we used information from all readily 

available sources of information. Based 

on the results of this analysis, we 

proposed to reject the option of 

requiring conversion to non-mercury 

technology because of the high cost 

impact this forced conversion would 

impose on the facilities in the industry 

(73 FR 33274–33275). 

Following the 2008 proposal, one 

commenter provided detailed comments 

on our proposed decision to not require 

existing facilities to convert to a nonmercury chlorine manufacturing 

process. In addition to comments on the 

EPA cost analysis described in our 2008 

proposal, the commenter provided a 

report to support its comments. We 


emcdonald on DSK2BSOYB1PROD with PROPOSALS4
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aBinational Toxics Strategy Mercury 

Workgroup—Reducing Mercury in the Great Lakes 

Region. U.S. Environmental Protection Agency. 

http://www.epa.gov/reg5oair/mercury/ 

reducing.html#regulation. 

reviewed these comments, examined the 

commenter’s report, and concluded that 

our cost analysis could be improved. 

Therefore, we incorporated some 

aspects of the commenter’s cost 

analysis, and gathered additional cost 

information. The results of our revised 

analyses, and our consideration of the 

policy and legal comments made by the 

commenter regarding the benefits of 

non-mercury technology to produce 

chlorine, provided the impetus for the 

non-mercury mercury option being 

proposed today as Option 1. Details of 

this proposed option are provided in 

section III.A of this document. 

4. Elimination of Part 61 NESHAP 

Numeric Limit 

NRDC stated that EPA illegally 

eliminated the 2,300 g/day limit on 

plant-wide mercury emissions that 

existed under the part 61 Mercury 

NESHAP. Upon reconsideration, we 

disagreed with NRDC’s argument. We 

determined that the plant-wide 

emission limit from the part 61 Mercury 

NESHAP was a standard to which no 

mercury cell facility had ever 

demonstrated compliance by way of 

emissions testing, that it is not an 

enforceable standard today, and, more 

importantly, and that it did not reflect 

the MACT level of emissions control 

required under CAA section 

112(d)(3)(B). Therefore, we concluded 

that we did not unlawfully remove any 

actual requirement of the part 61 

Mercury NESHAP. Instead, the 2003 

Mercury Cell NESHAP adopted a set of 

MACT-level work practice requirements 

under section 112(h) that are more 

stringent in terms of controlling fugitive 

mercury emissions than was allowed in 

the part 61 NESHAP. Details on this 

conclusion were provided on pages 73 

FR 33270 and 33271 of the June 11, 

2008 proposal. 

5. Mercury Cell Chlor-Alkali 

Subcategory 

As stated in the preamble to the final 

2003 Mercury Cell NESHAP (68 FR 

70905), we divided the chlorine 

production source category into two 

subcategories: (1) Mercury cell chloralkali plants and (2) chlorine production 

plants that do not rely upon mercury 

cells for chlorine production. In 

December 2003 (68 FR 70949), we 

issued our final decision to delete the 

subcategory of the chlorine production 

source category for chlorine production 

plants that do not utilize mercury cells 

to produce chlorine and caustic. This 

action was made under our authority in 

CAA section 112(c)(9)(B)(ii), and was 

not challenged in a petition for judicial 

review. Nor did anyone ask us to 

reconsider that action pursuant to CAA 

section 307(d)(7)(B). The objection 

raised by NRDC in its petition for 

reconsideration of the 2003 Mercury 

Cell NESHAP was that it was not 

appropriate to create a mercury cell 

chlor-alkali plants subcategory. 

According to NRDC, if the MACT floor 

for mercury emissions was determined 

for the chlorine production source 

category as a whole, the best-performing 

12 percent of sources in the category 

would be mercury-free. In our 2008 

proposal (73 FR 33273–33274), we 

explained that EPA has a long history of 

using subcategorization to appropriately 

differentiate between types of emissions 

and/or types of operations when 

analyzing whether air pollution control 

technology is feasible for groups of 

sources. Upon reconsideration of this 

situation for mercury cell chlor-alkali 

plants, we concluded that our earlier 

decision to create the mercury cell 

chlor-alkali plant subcategory was 

sound. 

6. Magnitude of Fugitive Mercury 

Emissions 

Prior to 2008, the uncertainty 

associated with fugitive mercury 

emissions from mercury cell chlor-alkali 

plants had long been an issue. Few 

studies had been conducted to measure 

these fugitive mercury emissions, and 

the studies that had been conducted 

were short-term and did not account for 

a range of operating and maintenance 

conditions. For around 30 years, 

mercury cell chlor-alkali plants had 

reported fugitive mercury emissions of 

1,300 grams per day (g/day), which 

equates to around 0.5 tons per year per 

plant. These estimates were based on 

two limited studies conducted by EPA 

in the early 1970’s. 

The sensitivity and concern over the 

actual levels of fugitive mercury 

emissions from the cell rooms was 

exacerbated by the inability of the 

industry to fully account for all the 

mercury that was added to the cells. In 

2000, there were approximately 65 tons 

of mercury unaccounted for at the 12 

mercury cell plants in operation at that 

time. This discrepancy was based on the 

difference between the amount of 

mercury used, as reported in the 

Chlorine Institute’s 2001 annual report 

to EPA’s Binational Toxics Strategy 

Mercury Workgroup,a and the amount of 

mercury released to all media, as 

reported in the 2000 Toxics Release 

Inventory, or TRI (the EPA requires 

industrial facilities to annually report 

on releases and transfers of certain toxic 

chemicals to a public database known as 

the TRI.) While industry representatives 

provided explanations for this 

discrepancy, they could not fully 

substantiate their theories. NRDC 

maintained that this ‘‘missing’’ mercury 

was being emitted as fugitive emissions. 

We recognized that the body of 

fugitive mercury emissions data could 

be improved. Therefore, as part of our 

reconsideration of the 2003 Mercury 

Cell NESHAP, we collected additional 

information on fugitive mercury 

emissions from mercury cell chlor-alkali 

plants. The primary purpose of this 

effort was to address whether the 

fugitive emissions from a mercury cell 

chlor-alkali plant are on the order of 

magnitude of the historical assumption 

of 1,300 g/day, corresponding to 0.5 

tons per year (tpy) per plant, or an order 

of magnitude higher as estimated by 

NRDC. 

Consequently, as part of our 

reconsideration efforts leading the 2008 

proposal, we sponsored a test program 

to address the issue of the magnitude of 

the fugitive mercury emissions at 

mercury cell chlor-alkali plants. In 

addition to this EPA test program, we 

also collected mercury emissions data 

from the continuous mercury 

monitoring systems installed at three 

mercury cell plants. 

The daily fugitive mercury emission 

rates extrapolated from these data sets 

ranged from around 20 to 1,300 g/day 

per facility. The average daily emission 

rates ranged from around 420 g/day to 

just under 500 g/day per facility, with 

the mean of these average values being 

slightly less than 450 g/day per facility. 

Therefore, the information we obtained 

in the almost one million dollar study 

of fugitive emissions from mercury cell 

chlor-alkali plants shows that fugitive 

emissions are on the order of magnitude 

of the historical assumption of 1,300 

g/day or less. There was no evidence 

obtained during any of the studies that 

indicated that fugitive mercury 

emissions were at levels higher than 

1,300 g/day. All of the studies that 

produced these data were of sufficient 

duration to encompass all types of 

maintenance activities. Further, the 

length of these studies was also 

sufficient to include emissions from a 

variety of process upsets, such as: 

Liquid mercury spills, leaking cells and 

other process equipment, and other 

process upsets. 

We also note that since 2008, the 

mercury cell plants with continuous 

monitoring systems and methods to 

estimate the flow rates have reported 

even lower mercury emissions than 


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13856 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

those reported in the 2008 proposal. In 

2008, these plants reported fugitive 

mercury emissions averaging around 

225 g/day/plant. 

D. What current legislation is related to 

this action? 

There is also U.S. legislation, both 

recently enacted and proposed, that has 

or will have an impact on these mercury 

chlor-alkali facilities. On October 14, 

2008, President Bush signed the 

Mercury Export Ban Act of 2008 into 

law. This law bans U.S. export of 

elemental mercury (effective in 2013), 

requires the Department of Energy 

(DOE) to designate and manage a longterm storage facility for elemental 

mercury, and prohibits the transfer of 

elemental mercury by Federal agencies. 

Both houses of Congress are currently 

considering legislation that, if enacted, 

would affect this industry (S. 1428 and 

H.R. 2190). These bills would amend 

the Toxic Substances Control Act to 

prohibit the use of mercury at chloralkali facilities. The House bill would 

require the facilities to cease using 

mercury by 2013 if the plant chooses to 

close or by 2015 if the plant chooses to 

convert to non-mercury. If this 

legislation passes Congress and is 

signed by the President into law, we 

will evaluate the appropriate action for 

EPA in light of the scope and impact of 

the law. 

III. Summary of Proposed Amendments 

In today’s action, we are proposing 

two options for amending the Mercury 

Cell NESHAP. The first option (nonmercury technology option) would 

encourage the conversion to nonmercury technology by requiring the 

elimination of mercury emissions. The 

second option (enhanced work practices 

option) would require improvements in 

the work practice standards to reduce 

fugitive emissions from the cell room 

including the requirement that every 

facility institute a cell room monitoring 

program and implement detailed work 

practices. These options, along with the 

estimated impacts of each, are described 

below in sections III.A and III.B. Also 

included is rationale for the selection of 

each option. 

In addition to these options, we are 

also proposing amendments that would 

apply regardless of which option we 

select. These amendments are described 

in section III.C. 

A. What is the non-mercury technology 

option (Option 1)? 

1. Summary of Non-Mercury 

Technology Option 

This proposed option would amend 

the 2003 Mercury Cell NESHAP by 

prohibiting mercury emissions from 

existing mercury cell chlor-alkali plants. 

This would make the standard for 

existing sources the same as the current 

standard for new and reconstructed 

sources, which is codified at 40 CFR 

63.8190(a)(1). 

Since we believe it is improbable that 

a mercury cell chlor-alkali plant can be 

operated without mercury emissions, 

we believe that this proposal would 

effectively require existing mercury cell 

chlor-alkali plants either to convert to a 

non-mercury technology or to cease 

production of chlorine with their 

current mercury cell production 

methods. However, if there are 

circumstances where the elimination of 

mercury emissions from an operating 

mercury cell plant could be achieved, 

we are interested in data and supporting 

information regarding technologies that 

would eliminate mercury emissions 

from an operating mercury cell facility. 

This proposed option would provide 

a three-year period from the date the 

final rule is published in the Federal 

Register to comply. To demonstrate 

compliance, each owner or operator 

would have to submit a report certifying 

that all mercury emissions have been 

eliminated permanently. This report 

would have to be submitted no later 

than 120 days following the applicable 

compliance date. 

2. Technical Information and Analyses 

for the non-Mercury Technology Option 

a. Background on the 2008 Proposal and 

Costs Analysis 

Section 112(d)(2) of the CAA provides 

that emission standards for new or 

existing sources of hazardous air 

pollutants (HAP) shall require the 

maximum degree of reduction in 

emissions (including a prohibition on 

such emissions, where achievable) that 

EPA, taking into consideration the cost 

of achieving such emission reduction, 

and any non-air quality health and 

environmental impacts and energy 

requirements, determines is achievable 

through application of measures, 

processes, methods, systems or 

techniques. These may include, but are 

not limited to, measures which (A) 

Reduce the volume of or eliminate 

emissions through process changes, 

substitution of materials or other 

modifications; (B) enclose systems or 

processes to eliminate emissions; (C) 

collect, capture or treat such pollutants 

when released from a process, stack, 

storage or fugitive emission point; (D) 

are design, equipment, work practice, or 

operational standards; or (E) are a 

combination of the above. 

One of the claims presented in 

NRDC’s petition for reconsideration of 

the 2003 Mercury Cell NESHAP was 

that EPA had not adequately considered 

non-mercury technology as a ‘‘beyondthe-floor’’ MACT control measure for 

existing sources in the original 

rulemaking for the Mercury Cell 

NESHAP (see section II.D.3). Further, 

NRDC claimed that the costeffectiveness of such a requirement, in 

terms of the annualized costs of control 

per pound of mercury eliminated, 

would be less than EPA previously 

indicated was warranted for mercury 

emissions from the mercury cell 

subcategory. 

In response to this comment, we 

performed an analysis in 2008 to 

determine the capital and annual costs 

of requiring non-mercury technology 

(Docket Item EPA–HQ–OAR–2002– 

0017–0088). Specifically, this analysis 

estimated the costs and the costeffectiveness of converting the existing 

mercury cell chlor-alkali plants to 

membrane cells. 

In a chlor-alkali process, an electric 

current is passed through a salt solution 

or brine (sodium chloride or potassium 

chloride), causing the dissociation of 

salt to produce chlorine gas and an 

alkaline solution (sodium hydroxide or 

potassium hydroxide). Hydrogen gas is 

also produced as a by-product. This 

dissociation occurs in chlor-alkali 

‘‘cells,’’ where the chloride ions stripped 

from the brine flow to the anode to form 

the chlorine product, and the sodium/ 

potassium ions flow to the cathode, 

where they form the hydroxide product 

and hydrogen. In a mercury cell, the 

cathode is a flowing layer of liquid 

mercury. The sodium/potassium ions 

form an amalgam with the mercury, 

which is routed to a decomposer. In the 

decomposer, the amalgam is reacted 

with water to form the hydroxide 

product and hydrogen. The mercury is 

then recycled. 

In a membrane process, a polymer 

membrane is used to separate the anode 

products from the cathode products. 

The chloride ions (at the anode) and the 

hydrogen (at the cathode) are kept apart 

by this membrane, which allows the 

sodium ions to pass into the cathodic 

compartment and react to form the 

hydroxide. 

Conversion from mercury cells to 

membrane cells is technically possible 

at all existing mercury cell chlor-alkali 

plants, although the amount of 

significant changes will vary for each 

individual situation. There are parts of 

the mercury cell plant that could be reused after conversion to the membrane 

cells. It could be possible to use the 

existing cell room building for the new 


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membrane cells, provided that the 

building is in good condition. However, 

constructing a new membrane cell room 

building would reduce the production 

losses as the mercury cells could 

continue to operate longer throughout 

the conversion process. Other 

equipment and processes that possibly 

could be retained include the rectifiers, 

the hydrogen treatment system, and the 

chlorine compression and liquefaction 

process. 

The mercury cells themselves (and 

associated decomposers) would have to 

be replaced by membrane cells. 

Membrane cells need purer brine than 

mercury cells, so a completely new 

brine purification system would likely 

be needed. Other equipment that would 

commonly need to be totally replaced 

include the sodium/potassium 

hydroxide concentration unit and 

evaporation system, the chlorine gas 

drying and chlorine gas absorption 

units, the power supply unit (excluding 

the rectifiers), pumps, instruments, and 

much of the piping. 

In performing the cost analysis, we 

used data from readily-available sources 

of information. In our 2008 proposal, we 

estimated that the average costeffectiveness associated with conversion 

to non-mercury technology would be 

approximately $14,000 per pound of 

mercury emissions eliminated. Further, 

our 2008 analysis estimated the average 

capital cost of conversion for one 

mercury cell chlor-alkali facility in the 

U.S. to be approximately $68 million 

per plant. The average annualized 

facility costs for this conversion were 

estimated to be approximately $7.5 

million per plant. Nationwide, the 

capital cost was estimated to be nearly 

$340 million and the annual costs 

around $38 million for the five facilities 

in operation at the time. We estimated 

that this cost impact would be 

approximately 11 percent of revenues. 

As a result of these analyses, we 

proposed in 2008 to reject conversion to 

non-mercury technology as a beyondthe-floor control requirement. 

b. Summary of Comments Received on 

the 2008 Cost Analysis 

One environmental organization 

disagreed with both our technical 

analysis and resulting conclusions in 

the 2008 proposal, and claimed that the 

switch to non-mercury technology 

would be economical. The commenter 

said that, in the 2008 analysis, EPA 

considered only the costs associated 

with the conversion, without 

considering the net cost or economic 

benefit. The commenter maintained that 

it is likely that any plant that converts 

will experience substantial benefits, 

including an increase in energy 

efficiency between 25 and 35 percent. 

The commenter claimed that this 

increased energy efficiency could 

amount to substantial savings. 

Furthermore, the commenter pointed 

out that membrane cells are smaller 

than mercury cells, which would allow 

plants to increase their chlorine 

capacity, leading to increased sales and 

additional energy savings due to the 

additional capacity. The commenter 

submitted a report that it prepared 

which provided individualized cost 

analyses for each of the remaining 

mercury cell chlor-alkali plants (Docket 

Item EPA–HQ–OAR–2002–0017– 

0094.3). According to the commenter, 

its report proves that conversion would 

pay for the majority of its cost in five 

years. Thus, the commenter concluded 

that EPA’s proposal was incorrect to 

suppose a ‘‘high cost impact’’ of 

conversion to non-mercury technology, 

and claimed that EPA should heed the 

evidence that conversion is not only 

economically feasible but beneficial and 

mandate conversion to non-mercury 

technology as a beyond-the-floor control 

requirement. 

c. 2009 Revised Cost Analyses 

In the second quarter of 2009, we 

performed a revised beyond-the-floor 

cost analysis to address comments 

received on the 2008 proposed 

amendments described above. The 

impacts, particularly the savings and 

benefits, of a forced conversion to 

membrane cells might not be 

universally applicable since the 

conditions and benefits are not the same 

at every facility. We do agree, however, 

that these facilities would achieve some 

savings associated with lower electricity 

and the elimination of environmental 

compliance costs for water treatment, 

waste disposal, and mercury 

monitoring, and that items should be 

added to the EPA cost analyses. 

Therefore, without assuming that a 

uniform energy savings would accrue to 

every facility currently operating, we 

updated our analysis to consider the 

energy costs savings. We also amended 

our analysis to include savings from the 

elimination of waste treatment, waste 

disposal, and mercury monitoring. On 

June 5, 2009, we developed a revised 

and updated analysis of conversion 

costs for the industry. This analysis was 

posted as a memorandum in the docket 

(Docket Item EPA–HQ–OAR–2002– 

0017–0098). 

Subsequent to the posting of the June 

5, 2009, memorandum, industry 

representatives provided comments on 

the revised analysis (Docket Items EPA– 

HQ–OAR–2002–0017–0100, 0101, 0102, 

and 0103). One of the major comments 

raised by industry representatives on 

our revised analysis regarded the 2006 

mercury emission levels used to 

estimate the cost-effectiveness of 

conversion to non-mercury technology. 

The industry representatives stated that 

these data reflected emission levels 

considerably higher than their more 

recently reported emissions. In addition, 

the industry representatives stated that 

the capital and annual costs in our 2008 

analysis were underestimated. The 

industry representatives also believed 

that the annual energy savings were 

overstated because these savings did not 

take into account the additional energy 

and fuel that would be needed to 

concentrate the caustic by-product 

obtained using membrane cells, which 

is produced at 33 percent purity, to the 

50 percent purity obtained using the 

mercury cell process. The industry 

representatives also commented that the 

June 2009 cost analysis: (1) 

Underestimated the mercury storage 

costs; (2) used an interest rate that was 

in practicality too low for calculating 

the capital recovery factor; (3) 

erroneously used information from a 

European study to estimate the savings 

due to the elimination of the mercury 

process that were not applicable to the 

U.S.; and (4) did not consider 

decommissioning costs. 

Consequently, we considered the 

industry comments and, in instances 

where specific relevant data were 

provided or available, we incorporated 

the information into another revised 

cost analysis dated September 15, 2009 

(Docket Item EPA–HQ–OAR–2002– 

0017–0105). The September 2009 

updated cost analysis for conversion to 

membrane technology estimated that the 

costs to convert the four remaining 

mercury cell plants to be nearly $336 

million in total capital costs and almost 

$36 million per year in total annual 

costs, considering electricity and other 

savings. The cost-effectiveness of 

conversion based on this September 

2009 analysis was about $66,000 per 

pound of mercury. 

In this analysis, we did not add 

certain highly variable costs mentioned 

by the industry commenter that could 

potentially be incurred by a plant when 

making a change to non-mercury 

technology. These variable costs include 

losses in production, building 

replacement, plant decommissioning, 

and many others that are likely to be 

highly variable from facility to facility. 

We believe that the magnitude of these 

costs, although very likely to occur for 

most facilities, would depend on factors 

such as the condition of the existing 

buildings, available space on the facility 


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13858 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

site to erect a new cell room building to 

avoid production losses, and possibly 

other unknown factors. We also 

received comments on the revised 2009 

cost analyses from the same 

environmental organization that 

provided comments on the 2008 cost 

analysis. The complete comments can 

be found in the docket (Docket EPA– 

HQ–OAR–2002–0017). The 

environmental organization commenter 

stated that the capital costs estimated by 

EPA are too high and the EPA analysis 

did not uniformly account for expansion 

during conversion. In addition, the 

commenter stated that the regression 

formula of cost vs. capacity used to 

establish an equation is incorrect since 

there is no relationship between capital 

costs and capacity when considering the 

full set of relevant data rather than just 

recent U.S. facilities. Also, the 

commenter stated that the capital costs 

should be annualized over a longer 

period than the 15 years used in the 

analysis since 30 years is a more likely 

useful life. 

The environmental commenter also 

made the following points: The energy 

savings estimated by EPA are too low, 

since higher reductions in electricity 

consumption are common place; the 

EPA cost estimate for producing steam 

double-counted the cost associated with 

concentrating caustic and did not 

account for the fact the steam could be 

obtained on-site without expense; the 

cost savings for environmental 

compliance avoided are underestimated; 

and the decommissioning costs are 

already included in estimates of 

conversion since many factories include 

the cost of dismantling and 

decommission in the reported cost of 

conversion. 

In addition, the commenter 

recommended that in evaluating the 

costs, EPA should use the average sales 

per establishment instead of the average 

sales per ton of chlorine capacity 

because the commenter believes that the 

latter term grossly underestimates sales. 

The commenter also stated that societal 

costs of conversion to non-mercury 

technology should be considered 

(Docket Item EPA–HQ–OAR–2002– 

0017–0104). The commenter also 

believed that the industry-supplied 

emission estimates are not reliable and 

are likely underestimated, thus 

overestimating the costs per pound of 

mercury emissions prevented. Finally, 

the commenter stated that EPA’s overall 

conclusion does not reflect the real 

world since over 100 plants have made 

the conversion globally and at least five 

chlor-alkali facilities expected or 

received a complete repayment from 

their investment within five years. 

d. Revised Cost Analysis for This 

Proposal 

Many of the comments we received 

on the September 2009 cost analysis 

were considered and used to estimate 

costs that represent the outcome of a 

potential conversion to non-mercury 

technology. In this revised analysis, we 

recognize that there are significant 

uncertainties in estimating these costs, 

and consider ranges of the potential 

costs (and savings) associated with each 

cost element. For each element, we do 

select a ‘‘best estimate’’ to allow the 

estimation of capital and annual costs of 

conversion for each facility. The results 

of this analysis are summarized below 

in section III.A.2.a of this document, 

and a memorandum that documents the 

details of this cost analysis can be found 

in the docket. We are specifically 

requesting comment on our analysis, 

along with additional facility-specific 

data, to allow a refinement of the 

analysis. 

3. Estimated Impacts of the NonMercury Technology Option 

a. Environmental and Energy Impacts 

We estimate that the total mercury 

emissions from the four mercury cell 

operating facilities to be around 640 

pounds per year. The non-mercury 

technology option would reduce 

mercury emissions by this amount. 

These four facilities reported almost 

2,000 additional pounds per year of onsite and off-site mercury releases to nonair media. These releases, which are 

primarily in the form of hazardous 

wastes, would be eliminated in the 

longer term, with consequential benefits 

for non-air quality related health and 

environmental values. The potential 

problems associated with the handling 

and continuous management of over 

1,200 tons of virgin mercury that is used 

in the cells at these four chlor-alkali 

plants would also be eliminated. In 

addition, approximately two tons of this 

mercury was reported by the industry as 

‘‘unaccounted’’ in 2008. This nonmercury technology option would 

eliminate the unaccounted mercury as 

well. 

The membrane cell chlor-alkali 

process requires less energy than the 

mercury cell process. Therefore, 

assuming that all four existing mercury 

cell chlor-alkali plants convert to 

membrane cells, there would be a 

savings in energy. We estimate that this 

savings would be around 350,000 

megawatt hours per year, which is 

approximately equivalent to the energy 

produced annually by a 40 megawatt 

power plant. The emission reductions 

associated with this reduced electricity 

generation are estimated to be 68 tons 

per year of fine particulate matter 

(PM2.5), 5 tons per year of volatile 

organic compounds (VOC), 0.1 tons per 

year of ammonia (NH3) 0.008 tons per 

year of mercury, and 287,000 tons per 

year of carbon dioxide (CO2). Since 

nitrogen oxide (NOx) and sulfur dioxide 

(SO2) are covered by capped emissions 

trading programs, we are only 

estimating PM2.5 emission reductions 

from reduced electricity demand. 

In the short term, the conversion of 

these facilities would result in the need 

to dispose of mercury-contaminated 

wastes. While there is considerable 

uncertainty in quantifying the amount 

of these wastes, we estimate that there 

could be around 7,000 cubic meters of 

mercury contaminated waste generated 

that could contain around 6 tons of 

mercury. 

As stated above, over 1,200 tons of 

virgin or process mercury from the 

facilities would need to be dealt with 

whether the facilities close or convert to 

non-mercury technology. The Mercury 

Export Ban Act of 2008, discussed 

earlier, would prohibit this mercury 

from being exported. Therefore, this 

mercury would need to be stored or sold 

domestically. Since mercury is a 

hazardous substance, it cannot be stored 

without a permit; hence, DOE is 

planning to build a Federal facility to 

accommodate the excess mercury that 

results from the export ban. 

b. Cost Impacts 

The estimated costs for the nonmercury technology option, assuming 

that all four currently operating mercury 

cell chlor-alkali plants convert to 

membrane cell technology, include total 

capital costs of approximately $300 

million dollars, with individual plant 

capital costs ranging from a low of $28 

million to a high of approximately $160 

million. Our analysis does show that, in 

the hypothetical situation that a single 

plant could incur the lowest possible 

costs while also realizing the highest 

possible energy and other savings, there 

could be an overall cost savings in the 

conversion from mercury cells to 

membrane cells. However, we do not 

believe that this scenario is realistic. 

Using more conservative assumptions, 

our best estimate is that the average 

annual costs would be between 

$800,000 and $7 million per year per 

plant. The total annual costs are 

estimated to be $13 million per year. 

Based on these costs and the estimated 

mercury emissions for each facility, the 

cost-effectiveness, in terms of 

annualized costs per pound of mercury 

eliminated, is approximately $20,000 

per pound for the industry, with a range 


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Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 13859 

of around $13,000 to $31,000 per pound 

for the individual facilities. 

c. Economic Impacts 

In addition to cost analyses, we also 

conducted an economic analysis of the 

impacts of the option to require nonmercury technology. A regulatory 

impact analysis (RIA) was performed for 

this non-mercury technology option. A 

report that documents the EIA methods 

and results can be found in the docket 

(EPA–HQ–OAR–2002–0017). 

Although individual plant 

information would be the best method 

to assess the true economic impacts of 

the non-mercury technology option, 

detailed information for this industry 

was not publicly available. As a result, 

we relied on parent company 

information provided in company 

annual reports (e.g., form 10–K), local 

press and industry trade publications, 

and company Web sites. 

There are many aspects of the cost 

estimate for conversion that are 

unknown or difficult to assess. While 

we believe that we have evaluated the 

conversion cost information available to 

us at the time of this action, the true 

costs may vary considerably. However, 

variation in engineering costs is not 

expected to cause a significant 

difference in the general conclusions of 

the RIA. 

We performed an analysis that 

compared the annual conversion costs 

to sales (cost to sales ratio, or CSR). We 

estimated that the CSR of ASHTA, the 

one small business in this industry, 

would range from one to two percent 

using the costs presented in this 

proposal. The other three plants are 

owned by large parent companies with 

significant company-wide sales. As a 

result, the CSRs for these large parent 

companies are below one percent. When 

single plant sales were considered, the 

CSRs for the mercury cell chlor-alkali 

plants owned by large parent companies 

ranged from 4 to 9 percent. 

We also analyzed industry 

profitability effects by comparing the 

annual conversion costs to reported 

industry margins for a representative 

electrochemical unit. This analysis 

confirms the results of the sales 

comparisons that plant conversion costs 

will likely have an economically 

significant effect. Conversion costs 

could reduce the margins by 10 to 20 

percent. 

This non-mercury technology option 

would force owners of mercury chloralkali plants to make an investment 

decision based on the costs of 

conversion as opposed to the future 

benefits of the conversion. This nonmercury technology option could lead 

to plant shutdowns that would involve 

adjustment costs for people working at 

the affected plants. Affected plants may 

also have strong links with other firms 

or downstream markets; as a result, 

secondary consequences of the 

regulation are important to consider. We 

are interested in receiving comments 

related to the downstream impacts of 

potential mercury cell plant shutdowns. 

In particular, we are interested in the 

impact on the potassium carbonate 

market and the potential impact on the 

competitiveness of the potassium 

hydroxide market. 

Many owners have converted from 

mercury cell chlor-alkali technologies in 

Europe and the U.S., while other 

mercury cell chlor-alkali plant owners 

have concluded the investment decision 

was currently not in their company’s 

interest given their assessment of future 

economic conditions, and have 

shutdown their mercury cell chlor-alkali 

plants instead. Since 2003, three U.S. 

mercury cell chlor-alkali facilities have 

closed and three have converted. 

Specifically, the Occidental Chemical 

mercury cell chlor-alkali facilities in 

Delaware City, Delaware, Muscle 

Shoals, Alabama, and Deer Park, Texas, 

have closed; while the PPG facility in 

Lake Charles, Louisiana, the ERCO 

facility in Port Edwards, Wisconsin, and 

the Pioneer chlor-alkali facility (now 

owned by Olin) in St. Gabriel, 

Louisiana, have converted to membrane 

cells. 

We do not have sufficient data to 

predict whether individual companies 

would choose to convert or close the 

affected mercury cell chlor-alkali plants. 

However, the data obtained in this study 

suggests that plant closure may be a 

preferred alternative to meet the 

requirements of the non-mercury 

technology option for one or more of the 

mercury cell chlor-alkali plants. 

As noted above, individual plant 

information was not available to 

perform a refined analysis of whether 

these mercury cell plants would likely 

convert to non-mercury technology or 

close. We are specifically requesting 

comment on our analysis, along with 

facility-specific data, to allow a 

refinement of the analysis for this nonmercury technology option. 

d. Benefits 

Mercury is a highly neurotoxic 

contaminant that enters the food web as 

a methylated compound, 

methylmercury (U.S. EPA, 2008c). The 

contaminant is concentrated in higher 

trophic levels, including fish eaten by 

humans. Mercury is emitted to the air 

from various man-made and natural 

sources. These emissions transport 

through the atmosphere and eventually 

deposit to land or water bodies. This 

deposition can occur locally, regionally, 

or globally, depending on the form of 

mercury emitted and other factors such 

as the weather. The form of mercury 

emitted from these sources is estimated 

to be about 98 percent elemental and 

two percent divalent mercury. Gaseous 

elemental mercury can be transported 

very long distances, even globally, to 

regions far from the emissions source 

(becoming part of the global ‘‘pool’’) 

before deposition occurs. Inorganic 

ionic (divalent) mercury has a shorter 

atmospheric lifetime and can deposit to 

land or water bodies closer to the 

emissions source. Furthermore, 

elemental mercury in the atmosphere 

can undergo transformation into ionic 

mercury, providing a significant 

pathway for deposition of emitted 

elemental mercury. 

This source category emitted about 

640 pounds of mercury in the air in 

2008 in the U.S. Based on the EPA’s 

National Emission Inventory, about 103 

tons of mercury were emitted from all 

anthropogenic sources in the U.S. in 

2005. Moreover, the United Nations has 

estimated that about 2,100 tons of 

mercury were emitted worldwide by 

anthropogenic sources in 2005. We 

believe that total mercury emissions in 

the U.S. and globally in 2008 were about 

the same magnitude in 2005. Therefore, 

we estimate that in 2008, these sources 

emitted about 0.3 percent of the total 

anthropogenic mercury emissions in the 

U.S. and about 0.02 percent of the global 

emissions. Overall, the non-mercury 

technology option (Option 1) would 

directly reduce mercury emissions by 

about 640 pounds per year from current 

levels as well as an estimated 16 pounds 

per year indirectly through reduced 

electricity generation, and, therefore, 

contribute to reductions in mercury 

exposures and health effects. Due to 

data, time, and resource limitations, we 

were unable to model mercury 

dispersion, deposition, methylation, 

bioaccumulation in fish tissue, and 

human consumption of mercurycontaminated fish that would be needed 

in order to estimate the human health 

benefits from reducing mercury 

emissions. 

Potential exposure routes to mercury 

emissions include both direct inhalation 

and consumption of fish containing 

methylmercury. For elemental mercury, 

inhalation is the most direct exposure 

route of potential concern. Effects on the 

nervous system appear to be the most 

sensitive toxicological endpoint and can 

include tremors, nervousness, insomnia, 

neuromuscular changes (such as 

weakness, muscle atrophy, and muscle 


emcdonald on DSK2BSOYB1PROD with PROPOSALS4
13860 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

b Integrated Risk Information System (IRIS). U.S. 

Environmental Protection Agency. http:// 

www.epa.gov/ncea/iris/subst/0370.htm. cScudder, B.C., Chasar, L.C., Wentz, D.A., Bauch, 

N.J., Brigham, M.E., Moran, P.W., and Krabbenhoft, 

D.P. 2009. Mercury in fish, bed sediment, and water 

from streams across the United States, 1998–2005: 

U.S. Geological Survey Scientific Investigations 

Report 2009–5109, p. 74. 

dNational Research Council (NRC). 2000. 

Toxicological Effects of Methylmercury. Committee 

on the Toxicological Effects of Methylmercury, 

Board on Environmental Studies and Toxicology. 

National Academies Press. Washington, DC. pp. 

168–173. 

eSalonen, J.T., Seppanen, K. Nyyssonen et al. 

1995. ‘‘Intake of mercury from fish lipid 

peroxidation, and the risk of myocardial infarction 

and coronary, cardiovascular and any death in 

Eastern Finnish men.’’ Circulation, 91 (3):645–655. 

fSorensen, N, K. Murata, E. Budtz-Jorgensen, P. 

Weihe, and Grandjean, P., 1999. ‘‘Prenatal 

Methylmercury Exposure as a Cardiovascular Risk 

Factor at Seven Years of Age’’, Epidemiology, pp. 

370–375. 

gNational Research Council (NRC). 2000. 

Toxicological Effects of Methylmercury. Committee 

on the Toxicological Effects of Methylmercury, 

Board on Environmental Studies and Toxicology. 

National Academies Press. Washington, DC. p. 229. 

hRoman et al, 2008. ‘‘Expert Judgment 

Assessment of the Mortality Impact of Changes in 

Ambient Fine Particulate Matter in the U.S.’’ 

Environ Sci Technol, 42, 7, 2268–2274. 

twitching), and headaches.b In the U.S., 

the primary route of human exposure to 

mercury emissions from industrial 

sources is generally indirectly through 

the consumption of fish containing 

methylmercury. As described above, 

mercury that has been emitted to the air 

eventually settles into water bodies or 

onto land where it can either move 

directly or be leached into waterbodies. 

Once deposited, certain microorganisms 

can change it into methylmercury, a 

highly toxic form that builds up in fish, 

shellfish and animals that eat fish. 

Consumption of fish and shellfish are 

the main sources of methylmercury 

exposure to humans. Methylmercury 

builds up more in some types of fish 

and shellfish than in others. The levels 

of methylmercury in fish and shellfish 

vary widely depending on what they 

eat, how long they live, and how high 

they are in the food chain. Most fish, 

including ocean species and local 

freshwater fish, contain some 

methylmercury. For example, in recent 

studies by EPA and the U.S. Geological 

Survey (USGS) of fish tissues, every fish 

sampled from 291 streams across the 

country contained some methylmercury 

(Scudder, 2009).c

The majority of fish consumed in the 

U.S. are ocean species. The 

methylmercury concentrations in ocean 

fish species are primarily influenced by 

the global mercury pool. However, the 

methylmercury found in local fish can 

be due, at least partly, to mercury 

emissions from local sources. Research 

shows that most people’s fish 

consumption does not cause a mercuryrelated health concern. However, certain 

people may be at higher risk because of 

their routinely high consumption of fish 

(e.g., Tribal and other subsistence 

fishers and their families who rely 

heavily on fish for a substantial part of 

their diet). It has been demonstrated that 

high levels of methylmercury in the 

bloodstream of unborn babies and 

young children may harm the 

developing nervous system, making the 

child less able to think and learn. 

Moreover, mercury exposure at high 

levels can harm the brain, heart, 

kidneys, lungs, and immune system of 

people of all ages. 

Several studies suggest that the 

methylmercury content of fish may 

reduce these cardio-protective effects of 

fish consumption. Some of these studies 

also suggest that methylmercury may 

cause adverse effects to the 

cardiovascular system. For example, the 

National Research Council (NRC) (2000) 

review of the literature concerning 

methylmercury health effects took note 

of two epidemiological studies that 

found an association between dietary 

exposure to methylmercury and adverse 

cardiovascular effects.d Moreover, in a 

study of 1,833 males in Finland aged 42 

to 60 years, Solonen et al. (1995) 

observed a relationship between 

methylmercury exposure via fish 

consumption and acute myocardial 

infarction (AMI or heart attacks), 

coronary heart disease, cardiovascular 

disease, and all-cause mortality.e The 

NRC also noted a study of 917 seven 

year old children in the Faroe Islands, 

whose initial exposure to 

methylmercury was in utero although 

post natal exposures may have occurred 

as well. At seven years of age, these 

children exhibited an increase in blood 

pressure and a decrease in heart rate 

variability.f Based on these and other 

studies, NRC concluded in 2000 that, 

while ‘‘the data base is not as extensive 

for cardiovascular effects as it is for 

other end points (i.e., neurologic effects) 

the cardiovascular system appears to be 

a target for methylmercury toxicity.’’ g

Since publication of the NRC report, 

there have been some 30 published 

papers presenting the findings of studies 

that have examined the possible 

cardiovascular effects of methylmercury 

exposure. These studies include 

epidemiological, toxicological, and 

toxicokinetic investigations. Over a 

dozen review papers have also been 

published. If there is a causal 

relationship between methylmercury 

exposure and adverse cardiovascular 

effects, then reducing exposure to 

methylmercury would result in public 

health benefits from reduced 

cardiovascular effects. 

In early 2010, EPA sponsored a 

workshop in which a group of experts 

were asked to assess the plausibility of 

a causal relationship between 

methylmercury exposure and 

cardiovascular health effects and to 

advise EPA on methodologies for 

estimating population level 

cardiovascular health impacts of 

reduced methylmercury exposure. The 

report from that workshop is in 

preparation. 

The primary benefit of the nonmercury technology option would be 

the reduction of mercury emissions 

from these sources, as discussed above. 

Due to data and resource limitations, we 

were unable to monetize the benefits 

associated with reducing mercury 

emissions for this non-mercury 

technology option. However, we 

estimate the monetized energy cobenefits of the non-mercury technology 

option to be $22 million to $43 million 

(2007$, 3 percent discount rate) in the 

implementation year (2013). The 

monetized co-benefits of the regulatory 

action at a 7 percent discount rate are 

$14 million to $33 million (2007$). 

Higher or lower co-benefits estimates 

are plausible using other assumptions.h

A summary of the monetized energy cobenefits estimates at discount rates of 3 

percent and 7 percent is in Table 1 of 

this preamble. 

TABLE 1—SUMMARY OF THE MONETIZED CO-BENEFITS ESTIMATES FOR THE PROPOSED NON-MERCURY TECHNOLOGY

OPTION IN 2013 (MILLIONS OF 2007$) 1

Pollutant Estimated emission reductions 

Monetized co-benefits Monetized co-benefits 

(3% Discount rate) (7% Discount rate) 

Mercury 2 ........................................ 656 pounds per year .................... N/A ................................................ N/A 

Direct PM2.5 .................................... 68 tons per year ........................... $15 to $37 .................................... $14 to $33 


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Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 13861 

iFann, N., C.M. Fulcher, B.J. Hubbell. 2009. ‘‘The 

influence of location, source, and emissions type in 

estimates of the human health benefits of reducing 

a ton of air pollution.’’ Air Qual Atmos Health 

(2009) 2:169–176. 

jPope et al, 2002. ‘‘Lung Cancer, 

Cardiopulmonary Mortality, and Long-term 

Exposure to Fine Particulate Air Pollution.’’ Journal 

of the American Medical Association 287:1132– 

1141. 

kLaden et al, 2006. ‘‘Reduction in Fine Particulate 

Air Pollution and Mortality.’’ American Journal of 

Respiratory and Critical Care Medicine. 173: 667– 

672. 

lU.S. Environmental Protection Agency, 2006. 

Final Regulatory Impact Analysis: PM2.5 NAAQS. 

Prepared by Office of Air and Radiation. October. 

Available on the Internet at http://www.epa.gov/ttn/ 

ecas/ria.html. 

TABLE 1—SUMMARY OF THE MONETIZED CO-BENEFITS ESTIMATES FOR THE PROPOSED NON-MERCURY TECHNOLOGY

OPTION IN 2013 (MILLIONS OF 2007$) 1—Continued 

Pollutant Estimated emission reductions 

Monetized co-benefits Monetized co-benefits 

(3% Discount rate) (7% Discount rate) 

CO2 3 287,000 tons per year .................. $6.5 ............................................... $6.5 

Grand Total .................................... ....................................................... $22 to $43 .................................... $21 to $40 

1All estimates are for the implementation year (2013), and are rounded to two significant figures so numbers may not sum across rows. All 

fine particles are assumed to have equivalent health effects. 2 Includes an estimated 16 pounds per year of mercury emission reductions from energy savings. 

3 CO2-related benefits were calculated using the social cost of carbon (SCC), which is discussed further in the RIA. The net present value of 

reduced CO2 emissions is calculated differently than other benefits. The same discount rate used to discount the value of damages from future 

emissions (SCC at 5, 3, 2.5 percent) is used to calculate net present value of SCC for internal consistency. This table shows monetized CO2 cobenefits at discount rates of 3 and 7 percent that were calculated using the global average SCC estimate at a 3 percent discount rate because 

the interagency workgroup on this topic deemed this marginal value to be the central value. In the RIA, we also provide the monetized CO2 cobenefits using discount rates of 5 percent (average), 2.5 percent (average), and 3 percent (95th percentile). 

These co-benefits estimates represent 

the total monetized human health 

benefits for populations exposed to less 

PM2.5 in 2013 from emission reductions 

due to the decreased electricity demand. 

These co-estimates are calculated as the 

sum of the monetized value of avoided 

premature mortality and morbidity 

associated with reducing a ton of PM2.5

precursor emissions. To estimate the 

human health benefits derived from 

reducing PM2.5 precursor emissions, we 

used the general approach and 

methodology laid out in Fann, Fulcher, 

and Hubbell (2009).i

To generate the benefit-per-ton 

estimates, we used a model to convert 

emissions of direct PM2.5 and PM2.5

precursors into changes in ambient 

PM2.5 levels and another model to 

estimate the changes in human health 

associated with that change in air 

quality. The PM2.5 benefit-per-ton 

estimates used for this rule assume a 

certain geographic distribution of 

emissions reductions, population 

density, meteorology, exposure and 

baseline health incidence rates. To the 

extent that these attributes differ greatly 

from those of the Mercury Chlor Alkali 

facilities, the use of these $/ton values 

in combination with emission changes 

at MCL facilities to estimate PM2.5 cobenefits may lead to higher or lower 

benefit estimates than if these cobenefits were estimated using sitespecific data. Finally, the monetized 

health co-benefits were divided by the 

emissions reductions to create the 

benefit-per-ton estimates. These models 

assume that all fine particles, regardless 

of their chemical composition, are 

equally potent in causing premature 

mortality because there is no clear 

scientific evidence that would support 

the development of differential effects 

estimates by particle type. 

Direct PM is the only PM2.5 precursor 

we are estimating for the non-mercury 

technology option. For context, it is 

important to note that the magnitude of 

the PM co-benefits is largely driven by 

the concentration response function for 

premature mortality. Experts have 

advised EPA to consider a variety of 

assumptions, including estimates based 

both on empirical (epidemiological) 

studies and judgments elicited from 

scientific experts, to characterize the 

uncertainty in the relationship between 

PM2.5 concentrations and premature 

mortality. For this non-mercury 

technology option we cite two key 

empirical studies, one based on the 

American Cancer Society cohort study j

and the extended Six Cities cohort 

study.k In the RIA for this non-mercury 

technology option, which is available in 

the docket, we also include co-benefits 

estimates derived from expert 

judgments and other assumptions. 

EPA strives to use the best available 

science to support our benefits analyses. 

We recognize that interpretation of the 

science regarding air pollution and 

health is dynamic and evolving. After 

reviewing the scientific literature and 

recent scientific advice, we have 

determined that the no-threshold model 

is the most appropriate model for 

assessing the mortality benefits 

associated with reducing PM2.5

exposure. Consistent with this recent 

advice, we are replacing the previous 

threshold sensitivity analysis with a 

new ‘‘Lowest Measured Level’’ (LML) 

assessment. While a LML assessment 

provides some insight into the level of 

uncertainty in the estimated PM 

mortality benefits, EPA does not view 

the LML as a threshold and continues to 

quantify PM-related mortality impacts 

using a full range of modeled air quality 

concentrations. 

Most of the estimated PM-related 

benefits in this non-mercury technology 

option would accrue to populations 

exposed to higher levels of PM2.5. Using 

the Pope et al. (2002) study, 85 percent 

of the population is exposed at or above 

the LML of 7.5 μg/m3. Using the Laden 

et al. (2006) study, 40 percent of the 

population is exposed above the LML of 

10 μg/m3. It is important to emphasize 

that we have high confidence in PM2.5- 

related effects down to the lowest LML 

of the major cohort studies. This fact is 

important, because as we estimate PMrelated mortality among populations 

exposed to levels of PM2.5 that are 

successively lower, our confidence in 

the results diminishes. However, our 

analysis shows that the great majority of 

the impacts occur at higher exposures. 

This analysis does not include the type 

of detailed uncertainty assessment 

found in the 2006 PM2.5 National 

Ambient Air Quality Standard (NAAQS) 

Regulatory Impact Analysis (RIA) 

because we lack the necessary air 

quality input and monitoring data to run 

the benefits model. In addition, we have 

not conducted any air quality modeling 

for this rule. The 2006 PM2.5 NAAQS 

benefits analysis l provides an 

indication of the sensitivity of our 

results to various assumptions. 

It should be emphasized that the 

monetized co-benefits estimates 

provided above do not include benefits 

from several important benefit 

categories, including reducing HAP 


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13862 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

m On March 29, 2005, EPA published a final rule 

(70 FR 15994) entitled ‘‘Revision of December 2000 

Regulatory Finding on the Emissions of Hazardous 

Air Pollutants From Electric Utility Steam 

Generating Units and the Removal of Coal- and OilFired Electric Utility Steam Generating Units from 

the Section 112(c) List (Section 112(n) Revision 

Rule).’’ Following that final action, the 

Administrator received two petitions for 

reconsideration. In response to those petitions, EPA 

announced (Federal Register, Vol. 70, October 28, 

2005, p. 62200) the reconsideration of certain 

aspects of the Section 112(n) Revision Rule, but 

these aspects did not include costs related to 

mercury control or cost-effectiveness. 

nThe costs of complying with CAMR as a whole 

are discussed briefly in the preamble to the final 

rule [Federal Register, Vol. 70, No. 95, May 18, 

2005, pp. 28606–28700. Standards of Performance 

for New and Existing Stationary Sources: Electric 

Utility Steam Generating Units (40 CFR Parts 60, 72, 

and 75)], and in more detail in two items in the two 

air dockets for the CAMR rule: EPA Office of 

Research and Development’s White Papers ‘‘Control 

of Mercury Emissions from Coal Fired Electric 

Utility Boilers.’’ Docket ID No. OAR–2002–0056 and 

Docket ID No. A–92–55. 

emissions, ecosystem effects, and 

visibility impairment. The primary 

benefit of this non-mercury technology 

option is the reduction of mercury 

emissions from these sources. Due to 

data and resource limitations, we were 

unable to model mercury dispersion, 

deposition, methylation, 

bioaccumulation in fish tissue, and 

human consumption of mercurycontaminated fish that would be needed 

in order to estimate the human health 

benefits from reducing mercury 

emissions. Although we do not have 

sufficient information or modeling 

available to provide monetized 

estimates for this non-mercury 

technology option, we include a 

qualitative assessment of these other 

effects in the RIA for the non-mercury 

technology option, which is available in 

the docket. 

The annualized social costs of this 

non-mercury technology option are 

estimated to be $13 million (2007$, 7 

percent discount rate) in 2013. The 

combined monetized energy co-benefits 

are $22 million to $43 million (2007$, 

3 percent discount rate) and $21 million 

to $40 million (2007$, 7 percent 

discount rate) for 2013. Thus, net 

benefits of the non-mercury technology 

option are estimated at $9 million to $30 

million (2007$, 3 percent discount rate) 

and $8 million to $27 million (2007$, 7 

percent discount rate) in 2013. EPA 

believes that the non-monetized 

mercury benefits and the energy cobenefits of the non-mercury technology 

option are likely to exceed the costs 

even when taking into account the 

uncertainties in the cost and benefit 

estimates. 

4. Rationale for Selection of the NonMercury Technology Option 

While the results of these additional 

analyses were that the costs and costeffectiveness values decreased from 

those estimated in our 2008 analysis, 

there is still some uncertainty regarding 

numerous facets of the cost analysis. 

Since the lower estimates of potential 

costs show that conversion to nonmercury technology may be a reasonable 

investment action in the long term, we 

are proposing this supplemental 

amendment to request a complete set of 

comments on the costs presented here 

in order to prepare a final cost analysis 

to support or not support the nonmercury technology option. Once all 

comments are received, we will reevaluate whether or not these costs 

constitute an unreasonably high cost 

impact given the benefits of eliminating 

all mercury emissions to public health, 

the environment, and to energy use. 

We gave serious consideration to the 

comments we received that stated the 

use of mercury in chlor-alkali plants is 

unnecessary since over 95 percent of the 

chlorine produced in the U.S. is already 

produced using mercury-free 

technology. Forcing these plants to 

switch to mercury-free technology 

would eliminate approximately 0.5 tons 

of mercury released per year. 

In the 2008 proposal, we rejected the 

conversion to non-mercury technology 

as a beyond-the floor option because of 

the high cost impacts. The total annual 

costs estimated at that time were around 

$38 million, or around $7.5 million per 

facility on average for each of the five 

facilities operating at that time. The 

revised cost analysis described above 

estimates total annual costs of around 

$13 million, which averages to just over 

$3 million per facility. Therefore, the 

current estimated conversion costs are 

around 60 percent lower than those 

driving our decision in 2008. 

With regard to cost-effectiveness, we 

stated in the original proposal of the 

Mercury Cell NESHAP Standard in 2002 

(67 FR 44683) that we considered the 

additional mercury emission reduction 

achieved by the beyond-the-floor option 

for hydrogen by-product vents and endbox ventilation systems to be warranted 

at an incremental cost-effectiveness of 

$9,000 per pound of mercury emission 

reduction. We did not indicate that this 

cost-effectiveness level represented an 

upper end of acceptability, and in other 

contexts, such as the Clean Air Mercury 

Rule (70 FR 28606, 05/18/2005),m we 

have found even larger costeffectiveness factors to be reasonable. 

Similarly, in our 2008 proposal of 

amendments, we did not conclude that 

a cost-effectiveness value of $14,000 per 

pound of mercury emission reduction 

was unacceptable, as this was one of 

several cost and economic factors 

considered that led to our conclusion 

regarding the high cost impact of the 

beyond-the-floor option of forced 

conversion. 

Historically, EPA has not established 

a clear cost-effectiveness level for 

mercury reductions that are considered 

acceptable. In fact, we have rejected 

regulatory alternatives for mercury with 

cost-effectiveness values of $5,000 per 

pound, and accepted regulatory 

strategies with estimated costeffectiveness values of $39,000 per 

pound, in the case of the Clean Air 

Mercury Rule.n Obviously, when 

making decisions regarding regulatory 

approaches to achieve mercury 

reductions, we have looked at cost in 

conjunction with many other factors to 

assess the reasonableness of possible 

control strategies. 

We also recognize that the mercury 

cell technology is an outdated 

technology that has been largely phased 

out in the U.S. even without a mercury 

emissions prohibition and even with the 

high costs of the conversion process. 

While the economic analysis suggests 

significant adverse economic impacts 

could occur if all four plants closed 

rather than convert to non-mercury 

technology, we believe that it is possible 

that one potential outcome of this 

proposed rule is that some companies 

will convert rather than close, if the 

recent incidence of conversion to nonmercury technology by the U.S. chloralkali industry continues. Therefore, the 

negative economic effects described 

above would be mitigated if only some 

of the four facilities closed. 

We also believe that any near-term 

negative economic impacts are justified 

given the potential adverse health and 

environmental effects of mercury that 

will be reduced permanently into the 

future. Therefore, we are proposing this 

non-mercury technology option to 

request comments on whether the 

benefits of eliminating mercury 

emissions from this industry, as a 

beyond-the-floor control alternative, are 

warranted given the foregoing 

discussion. 

B. What is the enhanced work practices 

option (Option 2)? 

1. Summary of Enhanced Work 

Practices Option 

On June 11, 2008 (73 FR 33257), we 

proposed modifications to the work 

practice standards that apply to fugitive 

emissions, primarily those fugitive 

emissions from cell rooms. The 

proposed modifications to these work 

practices included requiring mercury 


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Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 13863 

monitoring in the cell room for all 

facilities, along with daily work 

practices and weekly certification of the 

performance of these work practices. 

Establishment of the ‘‘action level’’ for 

investigating and correcting high 

mercury concentration levels revealed 

by the continuous monitors would be 

done for a minimum of 14 days and up 

to 30 days, at least every 6 months, and 

the action level would be set at the 90th 

percentile of the data acquired during 

the re-setting time period(s). We also 

proposed to require mercury thermal 

recovery units that continue to operate 

at closed or converted plants to remain 

subject to the applicable requirements 

as long as they are in operation. These 

amendments are discussed in more 

detail in the 2008 proposal (73 FR 

33271–33272 and 33275). 

In this action, we are re-proposing 

these amendments as Option 2. We 

received comments on these proposed 

amendments in 2008. In developing our 

final action for the Mercury Cell 

NESHAP, we will consider these 

previously submitted comments, along 

with any additional comments received 

on this option as a result of this 

proposed action. 

2. Estimated Impacts of the Enhanced 

Work Practices Option 

a. Environmental and Energy Impacts 

The mercury emissions reported to 

the TRI for 2008 for the four operating 

plants represent an 88 percent decrease 

from the pre-MACT levels. While some 

of this reduction is a result of the ability 

to estimate emission levels using the 

measured concentrations from the cell 

room continuous mercury monitoring 

systems and calculated flow rates, they 

are also a result of impacts of the 

Mercury Cell NESHAP. We do not 

believe that there will initially be 

substantial emission reductions 

associated with the enhanced work 

practice option. However, we believe 

that as these plants increase their 

knowledge of the causes of fugitive 

mercury emissions in the cell room 

through operation of the cell room 

monitoring program, mercury emissions 

will continue to steadily decrease. This 

is illustrated by the fact that the three 

plants utilizing these systems reported a 

decrease in mercury emissions of over 

20 percent between 2007 and 2008. 

While this rate of decrease is not likely 

to occur every year, we believe the 

fugitive mercury emissions will 

continue to be reduced. 

Since the enhanced monitoring option 

will not change the basic operation of 

the mercury cells, we do not anticipate 

that there will be any energy impacts. 

b. Cost and Economic Impacts 

The enhanced monitoring option 

would make the cell room monitoring 

program mandatory for all mercury cell 

chlor-alkali plants and would 

potentially impact all currently 

operating plants. However, the level of 

these impacts will vary depending on 

whether a plant previously elected to 

purchase and install a continuous 

mercury monitoring system in its cell 

room to comply with the cell room 

monitoring program alternative of the 

2003 Mercury Cell NESHAP. For the 

three plants that are currently 

complying via the cell room monitoring 

program alternative option, we do not 

predict that there would be any cost 

impacts. For the single plant that has 

elected not to purchase, install, and 

operate a cell room monitoring system 

to comply via the cell room monitoring 

program alternative, we estimate that it 

would incur a capital cost for a 

monitoring system of around $120,000, 

and that the total annual cost (including 

annualized capital cost and operation 

and maintenance costs) would be 

slightly more than $25,000 per year. We 

believe that this value is a low 

percentage of the annual revenues for 

this facility and would not cause any 

adverse economic impacts. The cost and 

economic impacts of the enhanced 

monitoring option were discussed in 

more detail in the 2008 proposal (73 FR 

33276). 

3. Rationale for Selection of the 

Enhanced Work Practices Option 

The evidence is clear that the 

continuous mercury monitoring 

programs are effective in identifying and 

correcting emission events. It is also 

evident that they are beneficial in 

identifying emission sources that may 

have previously been undetected. 

However, we believe that the routine 

work practices also play an important 

role in reducing emissions, by avoiding 

situations where elevated mercury 

concentrations are detected by the 

monitoring program. We believe that the 

cost and economic impacts of requiring 

both the work practices and the 

monitoring program are justified, given 

the effectiveness this combination has 

in reducing mercury emissions. Further, 

we believe that selection of this option 

would lessen the potential near-term 

negative economic impacts associated 

with the non-mercury technology 

option, since plants would likely 

continue to operate. 

C. What amendments are being 

proposed that are independent of which 

option is selected? 

In addition to the co-proposal of the 

two options discussed above in Sections 

III.A and III.B, we are also proposing 

amendments that would apply 

regardless of whether we select the nonmercury technology option or the 

enhanced monitoring option. 

Specifically, we are proposing to amend 

the provisions of the existing NESHAP 

that apply to periods of SSM and to 

correct compliance errors in the rule. 

1. Provisions That Apply During Periods 

of Startup, Shutdown, and Malfunction 

This proposed action would amend 

the provisions of the existing NESHAP 

that apply to periods of SSM. The 

proposed revisions of these provisions 

result from a Court decision that vacated 

portions of two provisions in EPA’s 

CAA section 112 regulations governing 

the emissions of HAP during periods of 

SSM. (Sierra Club v. EPA, 551 F.3d 1019 

(DC Cir. 2008), cert. denied, 130 S. CT. 

1735 (U.S. 2010)). Consequently, this 

proposed revised rule would require 

that affected sources comply with the 

emission limitations and work practices 

at all times, including during periods of 

SSM. For reasons discussed below, we 

are also proposing to promulgate an 

affirmative defense to civil penalties for 

exceedances of emission standards 

caused by malfunctions, as well as 

criteria for establishing the affirmative 

defense. These changes would go into 

effect upon the effective date of 

promulgation of the final rule. 

The United States Court of Appeals 

for the District of Columbia Circuit 

vacated portions of two provisions in 

EPA’s CAA section 112 regulations 

governing the emissions of HAP during 

periods of SSM. Sierra Club v. EPA, 551 

F.3d 1019 (DC Cir. 2008), cert. denied, 

130 S. Ct. 1735 (2010). Specifically, the 

Court vacated the SSM exemption 

contained in 40 CFR 63.6(f)(1) and 

(h)(1), that is part of a regulation 

commonly known as the ‘‘General 

Provisions Rule,’’ that EPA had 

promulgated under section 112 of the 

CAA. When incorporated into CAA 

section 112(d) regulations for specific 

source categories, these two provisions 

exempted sources from the requirement 

to comply with the otherwise applicable 

CAA section 112(d) emission standard 

during periods of SSM. The 2003 

Mercury Cell NESHAP Subpart 

included a reference to 40 CFR 

63.6(f)(1), as well as regulatory text 

unique to the 2003 Mercury Cell 

NESHAP that exempted compliance 

with standards during SSM events. It 


emcdonald on DSK2BSOYB1PROD with PROPOSALS4
13864 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

did not include a reference to 40 CFR 

63.6 (h)(1), since the rule does not have 

opacity and visible emission standards. 

In light of Sierra Club v. EPA, we are 

proposing to eliminate the SSM 

exemption in the Mercury Cell 

NESHAP, by revising Table 10, which 

addresses the applicability of the part 63 

General Provisions to mercury cell 

chlor-alkali plants, to state that 40 CFR 

63.6(f)(1) does not apply. As such, all 

emission standards and work practices 

would apply at all times. We are also 

proposing to remove other references in 

subpart IIIII and Table 10 related to 

SSM, including provisions that 

exempted compliance with standards 

during SSM periods. We are also 

proposing to remove the General 

Provisions’ requirement that the source 

develop an SSM plan, and to remove 

certain recordkeeping and reporting 

requirements related to the SSM 

exemption, but we are retaining the 

recordkeeping and related requirements 

for malfunctions and request public 

comment on the requirements. EPA has 

attempted to ensure that regulatory 

language relating to the SSM exemption 

has been removed. We solicit comment 

on whether we have overlooked any 

regulatory provisions that might be 

inappropriate, unnecessary, or 

redundant based on our proposal to 

remove the exemption from compliance 

with emission standards during periods 

of SSM. 

Regarding startup and shutdown 

modes of operation at mercury cell 

plants, based on available information 

EPA does not consider emissions during 

these periods to be significantly 

different than emissions during normal 

operation, and therefore is not 

proposing separate limits that would 

apply during these periods. We do not 

have any information that shows 

emissions at mercury cell plants would 

be significantly different during startup 

or shutdown than during normal 

operation; nor do we have information 

suggesting that the emissions control 

measures required by the 2003 rule 

would be less effective during startup or 

shutdown periods. We request public 

comment on whether emissions during 

startup and shutdown are instead 

significantly different compared to other 

normal operation, such that a different 

standard for startup and shutdown 

periods would be warranted. 

Periods of startup, normal operations, 

and shutdown are all predictable and 

routine aspects of a source’s operations. 

In contrast, malfunction is defined as a 

‘‘sudden, infrequent, and not reasonably 

preventable failure of air pollution 

control and monitoring equipment, 

process equipment, or a process to 

operate in a normal or useful manner 

***’’ (40 CFR 63.2). EPA believes that 

a malfunction should not be viewed as 

a distinct operating mode and, therefore, 

any emissions that occur during 

malfunctions do not need to be factored 

into development of CAA section 112(d) 

standards, which, once promulgated, 

apply at all times. In Mossville 

Environmental Action Now v. EPA, 370 

F.3d 1232, 1242 (DC Cir. 2004), the 

court upheld as reasonable standards 

that had factored in variability of 

emissions under all operating 

conditions. However, nothing in section 

112(d) or in case law requires that EPA 

anticipate and account for the 

innumerable types of potential 

malfunction events in setting emission 

standards. See, Weyerhaeuser v. Costle, 

590 F.2d 1011, 1058 (DC Cir. 1978) (‘‘In 

the nature of things, no general limit, 

individual permit, or even any upset 

provision can anticipate all upset 

situations. After a certain point, the 

transgression of regulatory limits caused 

by ‘‘uncontrollable acts of third parties, 

such as strikes, sabotage, operator 

intoxication or insanity, and a variety of 

other eventualities, must be a matter for 

the administrative exercise of case-bycase enforcement discretion, not for 

specification in advance by regulation.’’) 

Further, it is reasonable to interpret 

CAA section 112(d) as not requiring 

EPA to account for malfunctions in 

setting emission standards. For 

example, we note that CAA section 112 

uses the concept of ‘‘best performing’’ 

sources to define MACT, the level of 

stringency that major source standards 

must meet. Applying the concept of 

‘‘best performing’’ to a source that is 

malfunctioning presents significant 

difficulties. The goal of best performing 

sources is to operate in such a way as 

to avoid malfunctions of their units. 

Consequently, MACT should not be 

based on periods in which there is a 

failure to operate. 

Moreover, even if malfunctions were 

considered a distinct operating mode, 

we believe it would be impracticable to 

take into account malfunctions in 

setting CAA section 112(d) standards. 

As noted above, by definition 

malfunctions are sudden and 

unexpected events, and it would be 

difficult to set a standard that takes into 

account the myriad different types of 

malfunctions that can occur across all 

sources in each source category. 

Moreover, malfunctions can vary in 

frequency, degree, and duration, further 

complicating standard setting. 

Under this proposal, in the event that 

a source fails to comply with the 

applicable CAA section 112(d) 

standards as a result of a malfunction 

event, EPA would determine an 

appropriate response based on, among 

other things, the good faith efforts of the 

source to minimize emissions during 

malfunction periods, including 

preventative and corrective actions, as 

well as root cause analyses to ascertain 

and rectify excess emissions. EPA 

would also consider whether the 

source’s failure to comply with the CAA 

section 112(d) standard was, in fact, 

‘‘sudden, infrequent, not reasonably 

preventable’’ and was not instead 

‘‘caused in part by poor maintenance or 

careless operation.’’ 40 CFR 63.2 

(definition of malfunction.) 

Finally, EPA recognizes that even 

equipment that is properly designed and 

maintained can sometimes fail and that 

such failure can sometimes cause or 

contribute to an exceedance of the 

relevant emission standard. (See, e.g., 

State Implementation Plans: Policy 

Regarding Excessive Emissions During 

Malfunctions, Startup, and Shutdown 

(Sept. 20, 1999); Policy on Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions (Feb. 

15, 1983).) Therefore, consistent with 

our recently promulgated final 

amendments to regulations addressing 

the Portland Cement category (75 FR 

54970, Sept. 9, 2010), we are proposing 

to add regulatory language providing an 

affirmative defense against civil 

penalties for exceedances of emission 

limits that are caused by malfunctions. 

See proposed amendment to 40 CFR 

63.8266 (defining ‘‘affirmative defense’’ 

to mean, in the context of an 

enforcement proceeding, a response or 

defense put forward by a defendant, 

regarding which the defendant has the 

burden of proof, and the merits of which 

are independently and objectively 

evaluated in a judicial or administrative 

proceeding). We are also proposing 

regulatory provisions to specify the 

elements that are necessary to establish 

this affirmative defense; the source 

would have to prove by a 

preponderance of the evidence that it 

has met all of the elements set forth in 

sections. (See proposed amendment to 

40 CFR 63.8226(b); see also 40 CFR 

22.24.) The proposed criteria would 

ensure that the affirmative defense is 

available only where the event that 

causes an exceedance of the emission 

limit meets the narrow definition of 

malfunction in 40 CFR 63.2 (sudden, 

infrequent, not reasonable preventable 

and not caused by poor maintenance 

and/or careless operation). The 

proposed criteria also are designed to 

ensure that steps are taken to correct the 

malfunction, to minimize emissions, 

and to prevent future malfunctions. In 


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any judicial or administrative 

proceeding, the Administrator would be 

able to challenge the assertion of the 

affirmative defense and, if the 

respondent has not met its burden of 

proving all of the requirements in the 

affirmative defense, appropriate 

penalties could be assessed in 

accordance with Section 113 of the 

Clean Air Act (see also 40 CFR 22.77). 

2. Compliance Provisions Rule 

Corrections 

We are proposing amendments to 

correct errors and improve the 

compliance provisions of the rule. 

These changes, which are described 

below, were included in the June 2008 

proposal (73 FR 33275). 

a. Detection Limit For Mercury Monitor 

Analyzers 

Paragraph (a)(2) of § 63.8242, ‘‘What 

are the installation, operation, and 

maintenance requirements for my 

continuous monitoring systems?’’ 

requires that mercury continuous 

monitor analyzers have a detector with 

the capability to detect a mercury 

concentration at or below 0.5 times the 

mercury concentration level measured 

during the performance test. Since 

promulgation of the 2003 Mercury Cell 

NESHAP, we determined that setting 

the analyzer detection capability in 

reference to the concentration level 

during the performance test could be 

problematic. We realized that a 

concentration of 0.5 times the mercury 

concentration could, in cases of low 

mercury concentrations, be infeasible 

for the monitoring devices on the 

market. Information available to us at 

this time shows that 0.1 micrograms per 

cubic meter (μg/m3) is the detection 

limit of commonly commercially 

available analyzers. We believe that 

analyzers with detection limits at this 

level are more than sufficient to 

determine compliance with the 

limitations in the 2003 Mercury Cell 

NESHAP. Therefore, we are proposing 

to revise this paragraph to require a 

detector with the capability to detect a 

mercury concentration at or below 0.5 

times the mercury concentration 

measured during the test or 0.1 μg/m3. 

b. Averaging Period for Mercury 

Recovery Unit Compliance 

The 2003 Mercury Cell NESHAP is 

inconsistent as to whether the rule 

requires a daily average or an hourly 

average to determine continuous 

compliance with the emissions standard 

for mercury recovery units found at 

§ 63.8190(a)(3) of § 63.8190 ‘‘What 

emission limitations must I meet?’’ 

Paragraph (b) of § 63.8243 ‘‘What 

equations and procedures must I use to 

demonstrate continuous compliance?’’ 

clearly indicates that this averaging 

period is daily: ‘‘You must calculate the 

daily average mercury concentration 

using Equation 2 * * *’’ However, 

paragraph (b) of § 63.8246 ‘‘How do I 

demonstrate continuous compliance 

with the emission limitations and work 

practice standards?’’ states that for each 

mercury thermal recovery unit vent, 

‘‘you must demonstrate continuous 

compliance with the applicable 

emission limit specified in 

§ 63.8190(a)(3) by maintaining the outlet 

mercury hourly-average concentration 

no higher than the applicable limit.’’ 

It was our intention for compliance to 

be based on a daily average, as detailed 

below, and the inclusion of ‘‘hourly’’ in 

paragraph (b) of § 63.8246 ‘‘How do I 

demonstrate continuous compliance 

with the emission limitations and work 

practice standards?’’ was a drafting 

error. Therefore, we are proposing to 

correct this error by replacing ‘‘hourly’’ 

in § 63.8246(b) with ‘‘daily.’’ In the 

proposal Federal Register notice for the 

2003 Mercury Cell NESHAP (67 FR 

44678, July 3, 2002), we clearly stated 

our intention when we summarized the 

requirements as follows: 

‘‘To continuously comply with the 

emission limit for each by-product hydrogen 

stream, end-box ventilation system vent, and 

mercury thermal recovery unit, we are 

proposing that each owner and operator 

would continuously monitor outlet elemental 

mercury concentration and compare the daily 

average results with a mercury concentration 

operating limit for the vent. * * *’’ 

‘‘Continuous compliance would be 

demonstrated by collecting outlet elemental 

mercury concentration data using continuous 

mercury vapor monitor, calculating daily 

averages, and documenting that the 

calculated daily average values are no higher 

than established operating limits. Each daily 

average vent elemental mercury 

concentration greater than the established 

operating limit would be considered a 

deviation. 

IV. Request for Comment 

We request comment on all aspects of 

the proposed action. All significant 

comments received during the comment 

period will be considered. 

Five comments were received on the 

amendments proposed in June 2008. 

These commenters represent one 

environmental organization, one 

industry trade organization, and two 

companies that own and operate 

mercury cell chlor-alkali plants. The 

fifth comment was anonymously 

submitted in support of environmental 

organizations. We reviewed and 

considered these comments. As 

discussed above in section II.C.3 of this 

preamble, the consideration of one of 

the issues raised in the comments has 

caused us to publish this supplemental 

proposal today proposing the nonmercury technology option. In 

developing our final action, we will 

consider all previously-submitted 

relevant comments in addition to any 

comments submitted in response to 

today’s proposal. 

Comments are requested on several 

aspects of this proposed action. First, 

we are soliciting comments on which of 

the two options (Option 1: Non-Mercury 

Technology or Option 2: Enhanced 

Work Practices) is most appropriate. In 

providing comments on the selection of 

one of these options, please provide 

detailed rationale and additional 

technical information that supports your 

recommendation. 

Second, we are requesting comments 

on the specific amendments being 

proposed under both options. After 

making a decision on which option we 

will select for promulgation, we will 

consider and address all significant 

comments received on the amendments 

related to that option. We received 

comments on the enhanced work 

practices option following the proposal 

in June 2008. If that option is selected, 

we will consider and address those 

comments along with any new 

comments received. 

Third, we are specifically requesting 

comments on the potential for the 

elimination of mercury emissions 

without converting to membrane cells or 

plant closure. We are also requesting 

comment on any measures beyond those 

included in the enhanced monitoring 

option that might be employed at 

mercury cell facilities which could 

achieve even greater reductions such 

that mercury emissions are at ‘‘near 

zero’’ levels without conversion to a 

non-mercury process or closure. 

As noted earlier, we believe that it is 

improbable that a mercury cell chloralkali plant can be operated without 

mercury emissions. Therefore, we have 

assumed that requiring the elimination 

of mercury emissions would effectively 

require existing mercury cell chloralkali plants either to convert to a nonmercury technology or to cease 

production of chlorine with their 

current mercury cell production 

methods. However, if there are 

circumstances where the elimination of 

mercury emissions from an operating 

mercury cell plant could be achieved, 

we are specifically interested in data 

and supporting information regarding 

technologies that would eliminate 

mercury emissions from an operating 

mercury cell facility. 


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We are also interested in the 

possibility of other emission reduction 

technologies, process modifications, or 

practices not included in the enhanced 

work practices option that could reduce 

mercury emissions to ‘‘near-zero’’ levels. 

We are aware of the significant efforts 

that have been made by the four 

currently operating mercury cell 

facilities to reduce mercury emissions. 

As some of these efforts have been 

developed more fully in recent years, 

we have seen significant and consistent 

reductions in emissions to the current 

levels. We believe that the further 

refinement of these methods would 

continue to steadily decrease mercury 

emissions. We are requesting comment 

on a realistic lower bound level that 

could be achieved. 

In addition, a near-zero emission 

standard alternative would need to 

include appropriate testing and 

monitoring provisions. Therefore, in 

addition to information regarding a 

realistic lower-bound emissions level, 

we are also requesting comment on 

methods to overcome the difficulty of 

accurately measuring cell room fugitive 

emissions. 

Fourth, we are requesting comments 

on the proposed amendments related to 

provisions that apply during periods of 

SSM and the compliance provisions 

rule corrections. These amendments 

would apply regardless of which option 

we select. The compliance provisions 

rule corrections were also proposed in 

June 2008, and any comments received 

on the prior proposal related to these 

amendments will also be considered 

and addressed. 

Finally, comments were provided in 

2008 on all the reconsideration 

decisions discussed in our June 2008 

proposal (and summarized in section 

II.C of this preamble). We will accept 

additional comments on these decisions 

and consider them, along with the 

previous comments, in making our final 

decisions. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under section 3(f)(1) of Executive 

Order 12866 (58 FR 51735, October 4, 

1993), this action is an ‘‘economically 

significant regulatory action’’ because 

Option 1 is likely to have an annual 

effect on the economy of $100 million 

or more. Accordingly, EPA submitted 

this action to the Office of Management 

and Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. In addition, EPA prepared a 

RIA of the potential costs and benefits 

associated with this action. 

When estimating the PM2.5-related 

human health benefits and compliance 

costs in Table 2 of this preamble, EPA 

applied methods and assumptions 

consistent with the state-of-the-science 

for human health impact assessment, 

economics and air quality analysis. EPA 

applied its best professional judgment 

in performing this analysis and believes 

that these estimates provide a 

reasonable indication of the expected 

benefits and costs to the nation of this 

rulemaking. The RIA available in the 

docket describes in detail the empirical 

basis for EPA’s assumptions and 

characterizes the various sources of 

uncertainties affecting the estimates 

below. 

When characterizing uncertainty in 

the PM-mortality relationship, EPA has 

historically presented a sensitivity 

analysis applying alternate assumed 

thresholds in the PM concentrationresponse relationship. In its synthesis of 

the current state of the PM science, 

EPA’s 2009 Integrated Science 

Assessment for Particulate Matter 

concluded that a no-threshold log-linear 

model most adequately portrays the PMmortality concentration-response 

relationship. In the RIA accompanying 

this rulemaking, rather than segmenting 

out impacts predicted to be associated 

levels above and below a ‘‘bright line’’ 

threshold, EPA includes a LML that 

illustrates the increasing uncertainty 

that characterizes exposure attributed to 

levels of PM2.5 below the LML for each 

study. Figures provided in the RIA show 

the distribution of baseline exposure to 

PM2.5, as well as the lowest air quality 

levels measured in each of the 

epidemiology cohort studies. This 

information provides a context for 

considering the likely portion of PMrelated mortality benefits occurring 

above or below the LML of each study; 

in general, our confidence in the size of 

the estimated reduction PM2.5-related 

premature mortality diminishes as 

baseline concentrations of PM2.5 are 

lowered. Using the Pope et al. (2002) 

study, the 85 percent of the population 

is exposed at or above the LML of 7.5 

μg/m3. Using the Laden et al. (2006) 

study, 40 percent of the population is 

exposed above the LML of 10 μg/m3. 

While the LML analysis provides some 

insight into the level of uncertainty in 

the estimated PM mortality benefits, 

EPA does not view the LML as a 

threshold and continues to quantify PMrelated mortality impacts using a full 

range of modeled air quality 

concentrations. 

The cost analysis is also subject to 

uncertainties. Estimating the cost 

conversion from one process to another 

is more difficult than estimating the cost 

of adding control equipment because it 

is more dependent on plant specific 

information. The estimation of cost 

savings from environmental compliance 

cost savings elimination of the mercury 

process is also uncertain. The numbers 

were based on the savings reported by 

one U.S. facility and some studies from 

outside the U.S. The savings might be 

greater or smaller than estimated. 

Likewise, since the electricity savings 

are dependent on many of the same 

factors, they are also uncertain and may 

be greater or smaller than estimated. 

A summary of the monetized benefits, 

social costs, and net benefits for the two 

options at discount rates of 3 percent 

and 7 percent is in Table 2 of this 

preamble. 

BILLING CODE 6560–50–P 


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BILLING CODE 6560–50–C For more information on the benefits 

analysis, please refer to the RIA for this 

rulemaking, which is available in the 

docket. 


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B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule, have 

been submitted for approval to OMB 

under the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq. The information 

collection request (ICR) document 

prepared by EPA has been assigned an 

EPA ICR number 2046.06. 

OMB has previously approved the 

information collection requirements in 

the existing regulation (40 CFR part 63, 

subpart IIIII) under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0542. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

The proposed amendments under 

Option 1 would result in changes to the 

information collection requirements in 

the regulation. This information is being 

collected to assure that mercury 

emissions have been eliminated. The 

required notifications, reports, and 

records are essential in determining 

compliance, and are required of all 

affected facilities. The recordkeeping 

and reporting requirements in this 

proposed rule are based on the 

requirements in EPA’s NESHAP General 

Provisions (40 CFR part 63, subpart A). 

The recordkeeping and reporting 

requirements in the General Provisions 

are mandatory pursuant to section 114 

of the CAA (42 U.S.C. 7414). All 

information other than emissions data 

submitted to EPA pursuant to the 

information collection requirements for 

which a claim of confidentiality is made 

is safeguarded according to CAA section 

114(c) and the Agency’s implementing 

regulations at 40 CFR part 2, subpart B. 

The only information collection 

associated with the proposed 

amendments under Option 1 is a onetime certification that must be 

submitted 60 days after the compliance 

date. It is estimated that the burden for 

this information collection is 3 labor 

hours per response per facility, for a 

total of 12 labor hours for all four 

facilities. This burden will occur during 

the first year after promulgation, but the 

annual burden for this information 

collection averaged over the 3 years 

following the compliance date of these 

amendments is estimated to be a total of 

4 labor hours per year. Burden is 

defined at 5 CFR 1320.3(b). 

These proposed amendments under 

Option 2 would result in changes to the 

information collection requirements in 

the regulation. This information is being 

collected to assure compliance with the 

regulation. The required notifications, 

reports, and records are essential in 

determining compliance, and are 

required of all affected facilities. The 

recordkeeping and reporting 

requirements in proposed option 2 are 

based on the requirements in EPA’s 

NESHAP General Provisions (40 CFR 

part 63, subpart A). The recordkeeping 

and reporting requirements in the 

General Provisions are mandatory 

pursuant to section 114 of the CAA (42 

U.S.C. 7414). All information other than 

emissions data submitted to EPA 

pursuant to the information collection 

requirements for which a claim of 

confidentiality is made is safeguarded 

according to CAA section 114(c) and the 

Agency’s implementing regulations at 

40 CFR part 2, subpart B. 

The annual burden for this 

information collection averaged over the 

three years following promulgation of 

these amendments is estimated to be a 

total of 3,800 labor hours per year. The 

average annual reporting burden is 16 

hours per response, with approximately 

3 responses per facility for 5 

respondents. The only capital/startup 

costs are associated with the installation 

of a cell room monitoring system at one 

facility, since we know that these 

systems are already in place at the other 

four facilities. The total capital/startup 

cost annualized over its expected useful 

life is $13,000. The total operation and 

maintenance is $60,000 per year. There 

are no estimated costs associated with 

purchase of services. Burden is defined 

at 5 CFR 1320.3(b). 

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 EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, EPA has established 

a public docket for this action, which 

includes this ICR, under Docket ID 

number EPA–HQ–OAR–2002–0017. 

Submit any comments related to the ICR 

for this proposed rule to EPA and OMB. 

See ADDRESSES section at the beginning 

of this notice for where to submit 

comments to EPA. Send comments to 

OMB at the Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, 725 17th 

Street NW., Washington, DC 20503, 

Attention: Desk Office for EPA. Since 

OMB is required to make a decision 

concerning the ICR between 30 and 60 

days after March 14, 2011, a comment 

to OMB is best assured of having its full 

effect if OMB receives it by April 13, 

2011. The final rule will respond to any 

OMB or public comments on the 

information collection requirements 

contained in these proposed 

amendments. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule would not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

For the purposes of assessing the 

impacts of this proposed rule on small 

entities, small entity is defined as: (1) A 

small business that meets the Small 

Business Administration size standards 

for small businesses, as defined by the 

Small Business Administration’s 

regulations at 13 CFR 121.201; (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This proposed rule is estimated to 

impact a total of four sources, with one 

of the four facilities estimated to be a 

small entity. We have estimated that 

small entity compliance costs, as 

assessed by the facilities’ CSR, are 

expected to be just over 1 percent of 

revenues. New sources are already 

prohibited from using the mercury 

technology in the chlor-alkali 

production process by virtue of the 2003 

Mercury Cell NESHAP’s provisions; 

consequently, we did not estimate any 

impacts for new sources since this 

rulemaking would not impose any new 

requirements on them. 

This proposed rule will not have a 

significant economic impact on a 

substantial number of small entities, 

since there is only one small entity in 

the group of four facilities and 

compliance costs for this small entity 

are expected to be just over 1 percent of 

revenues. However, we continue to be 

interested in the potential impacts of 

this proposed action on small entities 

and welcome comments on issues 

related to such impacts. 


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D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the regulatory 

provisions of Title II of the Unfunded 

Mandates Reform Act of 1995 (UMRA), 

2 U.S.C. 1531–1538 for State, local, or 

Tribal governments or the private sector. 

The action imposes no enforceable duty 

on any State, local or Tribal 

governments or the private sector. (Note: 

The term ‘‘enforceable duty’’ does not 

include duties and conditions in 

voluntary Federal contracts for goods 

and services.) Therefore, this action is 

not subject to the requirements of 

sections 202 and 205 of the UMRA. This 

action also is not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

Executive Order 13132 (64 FR 43255, 

August 10, 1999) requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ is 

defined in the Executive Order to 

include regulations that 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.’’ 

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, as specified in 

Executive Order 13132. This proposed 

rule does not impose any requirements 

on State and local governments. Thus, 

Executive Order 13132 does not apply 

to this action. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

This action does not have Tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This proposed rule imposes no 

requirements on Tribal governments. 

Thus, Executive Order 13175 does not 

apply to this rule. EPA specifically 

solicits additional comment on this 

proposed rule from Tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying to those regulatory actions that 

concern health or safety risks, such that 

the analysis required under section 

5–501 of the Order has the potential to 

influence the regulation. This action is 

not subject to Executive Order 13045 

because it is based solely on technology 

performance. However, given the 

potential health effects of mercury on 

children, the elimination in mercury 

emissions from these four facilities 

could result in additional protection of 

children from environmental health 

risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

We have concluded that this action is 

not likely to have any adverse energy 

effects because no additional 

requirements are contained in this 

proposed rule that consume energy. In 

fact, as discussed previously in this 

preamble, this action would result in 

decreased energy usage. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113 (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the U.S. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. The 

nationwide standards would totally 

eliminate mercury emissions from 

sources affected by this proposed rule 

and thus eliminate all adverse human 

health or environmental effects on all 

populations, including minority or lowincome populations. 

An analysis of demographic data 

showed that the average percentages of 

the population below the poverty level 

and the percentages of the population 

17 years old and younger in populations 

in close proximity to the sources are 

similar to the national averages. The 

percentage of minorities in populations 

in close proximity to the sources is 

lower than the national average. 

In determining the aggregate 

demographic makeup of the 

communities near affected sources, EPA 

used census data at the block group 

level to identify demographics of the 

populations considered to be living near 

affected sources, such that they have 

notable exposures to current emissions 

from these sources. In this approach, 

EPA reviewed the distributions of 

different socio-demographic groups in 

the locations of the expected emission 

reductions from this proposed rule. The 

review identified those census block 

groups with centroids within a circular 

distance of a 0.5, 3, and 5 miles of 

affected sources and determined the 

demographic and socio-economic 

composition (e.g., race, income, 


emcdonald on DSK2BSOYB1PROD with PROPOSALS4
13870 Federal Register / Vol. 76, No. 49 / Monday, March 14, 2011 / Proposed Rules 

oU.S. GAO (Government Accountability Office). 

Demographics of People Living Near Waste 

Facilities. Washington, DC: Government Printing 

Office; 1995. 

pMohai P, Saha R. ‘‘Reassessing Racial and Socioeconomic Disparities in Environmental Justice 

Research’’. Demography. 2006;43(2): 383–399. 

qMennis J. ‘‘Using Geographic Information 

Systems to Create and Analyze Statistical Surfaces 

of Populations and Risk for Environmental Justice 

Analysis’’. Social Science Quarterly, 

2002;83(1):281–297. 

rBullard RD, Mohai P, Wright B, Saha R, et al. 

Toxic Waste and Race at Twenty 1987–2007. United 

Church of Christ. March, 2007. 

sThe results of the demographic analysis are 

presented in ‘‘Review of Environmental Justice 

Impacts,’’ August 2010, a copy of which is available 

in the docket. 

education, etc) of these census block 

groups. The radius of 3 miles (or 

approximately 5 kilometers) has been 

used in other demographic analyses 

focused on areas around potential 

sources.opqr There were no census 

block groups with centroids within 0.5 

miles of any of the sources affected by 

this proposed rule. EPA’s demographic 

analysis has shown that these areas in 

aggregate have lower proportions of 

American Indians, African-Americans, 

Hispanics, and ‘‘Other and Multi-racial’’ 

populations than the national average. 

The analysis showed that these areas in 

aggregated had similar proportions of 

families with incomes below the 

poverty level as the national average.s

EPA defines ‘‘Environmental Justice’’ 

to include meaningful involvement of 

all people regardless of race, color, 

national origin, or income with respect 

to the development, implementation, 

and enforcement of environmental laws, 

regulations, and policies. To promote 

meaningful involvement, EPA has 

developed a communication and 

outreach strategy to ensure that 

interested communities have access to 

this proposed rule, are aware of its 

content, and have an opportunity to 

comment during the comment period. 

During the comment period, EPA will 

publicize the rulemaking via EJ 

newsletters, Tribal newsletters, EJ list 

servers, and the Internet, including 

EPA’s Office of Policy Rulemaking 

Gateway Web site (http:// 

yosemite.epa.gov/opei/RuleGate.nsf/). 

EPA will also provide general 

rulemaking fact sheets (e.g., why is this 

important for my community) for EJ 

community groups and conduct 

conference calls with interested 

communities. In addition, State and 

Federal permitting requirements will 

provide State and local governments 

and members of affected communities 

the opportunity to provide comments on 

the permit conditions associated with 

permitting the sources affected by this 

rulemaking. 

List of Subjects in 40 CFR Part 63 

Environmental protection, Air 

pollution control, Hazardous 

substances, Incorporation by reference, 

Reporting and recordkeeping 

requirements. 

Dated: March 3, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 63—[Amended] 

1. The authority citation for part 63 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

[OPTION 1 FOR SUBPART IIIII— 

AMENDED] 

Subpart IIIII—[Amended] 

2. Section 63.8184 is amended by 

revising paragraphs (a) and (c) to read as 

follows: 

§ 63.8184 What parts of my plant does this 

subpart cover? 

(a) This subpart applies to two types 

of affected sources at a mercury cell 

chlor-alkali plant: the mercury cell 

chlor-alkali production facility, as 

defined in paragraph (a)(1) of this 

section and § 63.8266; and the mercury 

recovery facility, as defined in 

paragraph (a)(2) of this section and 

§ 63.8266. 

(1) The mercury cell chlor-alkali 

production facility affected source 

consists of all cell rooms and ancillary 

operations used in the manufacture of 

product chlorine, product caustic, and 

by-product hydrogen at a mercury cell 

chlor-alkali plant. This subpart covers 

mercury emissions from by-product 

hydrogen streams, end box ventilation 

system vents, and fugitive emission 

sources associated with cell rooms, 

hydrogen systems, caustic systems, and 

storage areas for mercury-containing 

wastes. 

(2) The mercury recovery facility 

affected source consists of all processes 

and associated operations needed for 

mercury recovery of wastes generated 

from a mercury cell chlor-alkali plant. 

This subpart covers mercury emissions 

from mercury thermal recovery unit 

vents and fugitive emission sources 

associated with storage areas for 

mercury-containing wastes. 

* * * * * 

(c) A mercury recovery facility is a 

new affected source if you commence 

construction or reconstruction of the 

affected source after the dates specified 

in § 63.8186(c) and (d). An affected 

source is reconstructed if it meets the 

definition of a reconstruction in § 63.2. 

3. Section 63.8186 is revised to read 

as follows: 

§ 63.8186 When do I have to comply with 

this subpart? 

(a) Compliance date for the emission 

limitations in § 63.8190(a)(2), the work 

practices in § 63.8192, and all the 

associated requirements for existing 

mercury cell chlor-alkali production 

facility and mercury recovery facility 

affected sources. If you have an existing 

mercury cell chlor-alkali production 

facility or mercury recovery facility 

affected source, you must comply with 

the applicable emission limitations in 

§ 63.8190(a)(2), work practices in 

§ 63.8192, and all the associated 

requirements no later than December 19, 

2006. 

(b) Compliance date for emission 

limitation in § 63.8190(b) and all the 

associated requirements for existing 

mercury cell chlor-alkali production 

facility and mercury recovery facility 

affected sources. If you have an existing 

mercury cell chlor-alkali production 

facility or mercury recovery facility 

affected source, you must comply with 

§ 63.8190(b) by three years after the date 

that the final rule is published in the 

Federal Register. Prior to compliance 

with § 63.8190(b), you must comply 

with the applicable emission limitations 

in § 63.8190(a)(2), work practices in 

§ 63.8192, and all the associated 

requirements. After you have 

demonstrated compliance with 

§ 63.8190(b) and have submitted the 

certification of compliance in 

accordance with § 63.8252(f), you are 

only subject to § 63.8246(d) of this 

subpart. 

(c) Compliance date for the emission 

limitations in § 63.8190(a)(3), the work 

practices in § 63.8192, and all the 

associated requirements for new or 

reconstructed mercury recovery facility 

affected sources. If you commenced 

construction or reconstruction of your 

mercury recovery facility after July 3, 

2002, and before March 14, 2011, you 

must comply with the applicable 

emission limitation in § 63.8190(a)(3), 

work practices in § 63.8192, and all the 

associated requirements by either 

December 19, 2003, or upon initial 

startup, whichever is later. 

(d) Compliance date for the emission 

limitation under § 63.8190(b) and all the 

associated requirements for new or 

reconstructed mercury recovery facility 

affected sources. 

(1) If you commenced construction or 

reconstruction of your mercury recovery 

facility after July 3, 2002, and before 


emcdonald on DSK2BSOYB1PROD with PROPOSALS4
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March 14, 2011, you must comply with 

the emission limitation in § 63.8190(b) 

and all the associated requirements by 

three years after the date that the final 

rule is published in the Federal 

Register. Prior to compliance with 

§ 63.8190(b), you must comply with the 

applicable emission limitation in 

§ 63.8190(a)(3), work practices in 

§ 63.8192, and all the associated 

requirements. After you have 

demonstrated compliance with 

§ 63.8190(b) and have submitted the 

certification of compliance in 

accordance with § 63.8252(f), you are 

only subject to § 63.8246(d) of this 

subpart. 

(2) If you commenced construction or 

reconstruction of your mercury recovery 

facility after March 14, 2011, you must 

comply with the emission limitation in 

§ 63.8190(b) and all the associated 

requirements by the date that the final 

rule is published in the Federal 

Register, or upon initial startup, 

whichever is later. 

4. Section 63.8190 is amended as 

follows: 

a. Revising paragraph (a)(2) 

introductory text; 

b. Revising paragraph (a)(3) 

introductory text; and 

c. Adding paragraph (b). 

The revisions read as follows: 

§ 63.8190 What emission limitations must I 

meet? 

(a) * * * 

(2) Emission limits which apply to 

existing mercury cell chlor-alkali 

production facilities prior to achieving 

compliance with § 63.8190(b). During 

any consecutive 52-week period, you 

must not discharge to the atmosphere 

total mercury emissions in excess of the 

applicable limit in paragraph (a)(2)(i) or 

(ii) of this section calculated using the 

procedures in § 63.8243(a). 

* * * * * 

(3) Emission limits which apply to 

existing mercury recovery facilities and 

to new or reconstructed mercury 

recovery facilities that commenced 

construction or reconstruction after July 

3, 2002, and before March 14, 2011 prior 

to achieving compliance with paragraph 

(b) of this section. You must not 

discharge to the atmosphere mercury 

emissions in excess of the applicable 

limit in paragraph (a)(3)(i) or (ii) of this 

section. 

* * * * * 

(b) Emission limit which applies to 

each mercury cell chlor-alkali 

production facility and each mercury 

recovery facility after the applicable 

compliance date specified in paragraph 

§ 63.8186(b) or (d). Emissions of 

mercury are prohibited from each 

existing mercury cell chlor-alkali 

production facility and from each 

existing, new, or reconstructed mercury 

recovery facility. You must demonstrate 

compliance with this prohibition in 

accordance with the provisions in 

§ 63.8236(e) and § 63.8246(d) and 

submit the certification of compliance 

required by § 63.8252(f). 

5. Section 63.8192 is amended as 

follows: 

a. Revising the introductory text; 

b. Revising paragraph (g)(2)(i); and 

c. Revising paragraph (g)(3). 

The revisions read as follows: 

§ 63.8192 What work practice standards 

must I meet? 

Prior to achieving compliance with 

§ 63.8190(b), you must meet the work 

practice requirements specified in 

paragraphs (a) through (f) of this section. 

As an alternative to the requirements 

specified in paragraphs (a) through (d) 

of this section, you may choose to 

comply with paragraph (g) of this 

section. 

* * * * * 

(g) * * * 

(2) * * * 

(i) Beginning on the compliance date 

specified for your affected source in 

§ 63.8186(a), measure and record the 

mercury concentration for at least 30 

days using a system that meets the 

requirements of paragraph (g)(1) of this 

section. 

* * * * * 

(3) Beginning on the compliance date 

specified for your affected source in 

§ 63.8186(a), you must continuously 

monitor the mercury concentration in 

the cell room. Failure to monitor and 

record the data according to 

§ 63.8256(c)(4)(ii) for 75 percent of the 

time in any 6-month period constitutes 

a deviation. 

* * * * * 

6. Section 63.8230 is revised to read 

as follows: 

§ 63.8230 By what date must I conduct 

performance tests or other initial 

compliance demonstrations? 

(a) You must conduct a performance 

test no later than the compliance date 

that is specified in § 63.8186(a) for your 

affected source to demonstrate initial 

compliance with the applicable 

emission limit in § 63.8190(a)(2) for byproduct hydrogen streams and end box 

ventilation system vents and the 

applicable emission limit in 

§ 63.8190(a)(3) for mercury thermal 

recovery unit vents. 

(b) For the applicable work practice 

standards in § 63.8192 you must 

demonstrate initial compliance within 

30 calendar days after the compliance 

date that is specified for your affected 

source in § 63.8186(a). 

7. Section 63.8236 is amended by 

adding paragraph (e) to read as follows: 

§ 63.8236 How do I demonstrate initial 

compliance with the emission limitations 

and work practice standards? 

* * * * * 

(e) For each affected source, you have 

demonstrated initial compliance with 

the emission limit in § 63.8190(b) if you 

have eliminated mercury emissions and 

you have submitted the compliance 

certification required by § 63.8252(f). 

8. Section 63.8243 is amended by 

revising paragraphs (a) introductory text 

and (a)(3) introductory text to read as 

follows: 

§ 63.8243 What equations and procedures 

must I use to demonstrate continuous 

compliance? 

(a) By-product hydrogen streams and 

end box ventilation system vents. For 

each consecutive 52-week period, you 

must determine the g Hg/Mg Cl2

produced from all by-product hydrogen 

streams and all end box ventilation 

system vents, if applicable, at a mercury 

cell chlor-alkali production facility 

using the procedures in paragraphs 

(a)(1) through (3) of this section. You 

must begin collecting data on the 

compliance date that is specified in 

§ 63.8186(a) for your affected source and 

calculate your first 52-week average 

mercury emission rate at the end of the 

52nd week after the compliance date. 

* * * * * 

(3) Beginning 52 weeks after the 

compliance date specified in 

§ 63.8186(a) for your affected source, 

you must calculate the 52-week average 

mercury emission rate from all byproduct hydrogen steam and all end box 

ventilation system vents, if applicable, 

using Equation 1 of this section as 

follows: 

* * * * * 

9. Section 63.8246 is amended by 

adding paragraph (d) to read as follows: 

§ 63.8246 How do I demonstrate 

continuous compliance with the emission 

limitations and work practice standards? 

* * * * * 

(d) You must demonstrate continuous 

compliance with the emission 

limitations in § 63.8190(b) by operating 

without mercury emissions. 

10. Section 63.8252 is amended by 

adding paragraph (f) to read as follows: 

§ 63.8252 What notifications must I submit 

and when? 

* * * * * 

(f) You must submit a compliance 

certification no later than 60 days after 

the applicable compliance date 


emcdonald on DSK2BSOYB1PROD with PROPOSALS4
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specified in § 63.8186(b) or (d). This 

certification must state that you have 

eliminated all mercury emissions and 

will not use any process in the future 

that will emit mercury. The certification 

should also include a statement as to 

whether you eliminated mercury 

emissions through conversion to a nonmercury process for chlorine production 

or whether chlorine is no longer 

produced at the site. 

11. Section 63.8254 is amended as 

follows: 

a. Revising paragraph (a)(1); 

b. Revising paragraph (a)(2); 

The revisions read as follows: 

§ 63.8254 What reports must I submit and 

when? 

(a) * * * 

(1) The first compliance report must 

cover the period beginning on December 

19, 2006, and ending on June 30, 2007. 

(2) The first compliance report must 

be postmarked or delivered no later than 

July 31, 2007. 

* * * * * 

[OPTION 2 FOR SUBPART IIIII— 

AMENDED] 

Subpart IIIII—[AMENDED] 

12. Section 63.8182 is amended by 

revising paragraph (a) to read as follows: 

§ 63.8182 Am I subject to this subpart? 

(a) You are subject to this subpart if 

you own or operate a mercury cell 

chlor-alkali production facility or a 

mercury recovery facility at a mercury 

cell chlor-alkali plant. 

* * * * * 

13. Section 63.8184 is amended by 

revising paragraph (a) to read as follows: 

§ 63.8184 What parts of my plant does this 

subpart cover? 

(a) This subpart applies to two types 

of affected sources at a mercury cell 

chlor-alkali plant: the mercury cell 

chlor-alkali production facility, as 

defined in § 63.8266, ‘‘What definitions 

apply to this subpart,’’ and the mercury 

recovery facility, as also defined in 

§ 63.8266. 

* * * * * 

14. Section 63.8186 is amended as 

follows: 

a. By revising paragraph (a); and 

b. By adding paragraph (e). 

§ 63.8186 When do I have to comply with 

this subpart? 

(a) If you have an existing affected 

source, you must comply with the 

applicable provisions no later than the 

dates specified in paragraph (a)(1) and 

in either paragraph (a)(2) or (3) of this 

section. 

(1) You must comply with each 

emission limitation, work practice 

standard, and recordkeeping and 

reporting requirement in this subpart 

that applies to you no later than 

December 19, 2006, with the exception 

of the requirements listed in (a)(1)(i) 

through (4) of this section. 

(i) Section 63.8192(h) and (i); 

(ii) Section 63.8236(e) and (f); 

(iii) Section 63.8252(f); and 

(iv) Section 63.8254(e). 

(2) If you were complying with the 

cell room monitoring program 

provisions in § 63.8192(g) on March 14, 

2011 as an alternative to the work 

practice standards in § 63.8192(a) 

through (d), you must comply with the 

provisions in § 63.8192(h) and (i) no 

later than 6 months after publication of 

the final rule in the Federal Register. At 

the time that you are in compliance 

with § 63.8192(h) and (i), you will no 

longer be subject to the provisions of 

§ 63.8192(g). 

(3) If you were complying with the 

work practice standards in § 63.8192(a) 

through (d) on March 14, 2011, you 

must comply with the provisions in 

§ 63.8192(h) and (i) no later than 2 years 

after publication of the final rule in the 

Federal Register. At the time that you 

are in compliance with § 63.8192(h) and 

(i), you will no longer be subject to the 

provisions of § 63.8192(a) through (d). 

* * * * * 

(e) If you have a mercury recovery 

facility at a mercury cell chlor-alkali 

plant where the mercury cell chloralkali production facility ceased 

production of product chlorine, product 

caustic, and by-product hydrogen prior 

to the publication of the final rule in the 

Federal Register, you must comply with 

each emission limitation, work practice 

standard, and recordkeeping and 

reporting requirement in this subpart 

that applies to your mercury recovery 

unit by 1 year after the publication of 

the final rule in the Federal Register. 

15. Section 63.8192 is amended as 

follows: 

a. By revising § 63.8192 introductory 

text; and 

b. By adding paragraphs (h) and (i). 

§ 63.8192 What work practice standards 

must I meet? 

Prior to the applicable compliance 

date specified in § 63.8186(a)(2) or (3), 

you must meet the work practice 

requirements specified in paragraphs (a) 

through (f) of this section. As an 

alternative to the requirements specified 

in paragraphs (a) through (d) of this 

section, you may choose to comply with 

paragraph (g) of this section. After the 

applicable compliance date specified in 

§ 63.8186(a)(2) or (3), you must meet the 

work practice requirements specified in 

paragraphs (e), (f), (h), and (i) of this 

section. 

* * * * * 

(h) You must meet the work practice 

standards in Tables 1 through 4 to this 

subpart and the associated 

recordkeeping requirements in Table 12 

to this subpart. You must adhere to the 

response intervals specified in Tables 1 

through 4 to this subpart at all times. 

Nonadherence to the intervals in Tables 

1 through 4 to this subpart constitutes 

a deviation and must be documented 

and reported in the compliance report, 

as required by § 63.8254(b), with the 

date and time of the deviation, cause of 

the deviation, a description of the 

conditions, and time actual compliance 

was achieved. As provided in § 63.6(g), 

you may request to use an alternative to 

the work practice standards in Tables 1 

through 4 to this subpart. 

(i) In addition to the work practice 

standards in paragraph (h) of this 

section, you must institute a cell room 

monitoring program to continuously 

monitor the mercury vapor 

concentration in the upper portion of 

each cell room and to take corrective 

actions as quickly as possible when 

elevated mercury vapor levels are 

detected. You must prepare and submit 

to the Administrator a cell room 

monitoring plan containing the 

elements listed in Table 11 to this 

subpart and meet the requirements in 

paragraphs (i)(1) through (4) of this 

section. 

(1) You must utilize a mercury 

monitoring system that meets the 

requirements of Table 8 to this subpart. 

(2) You must establish action levels 

according to the requirements in 

paragraphs (i)(2)(i) through (iii) of this 

section. You must establish an initial 

action level after the compliance date 

specified in § 63.8186(a)(2) or (3), and 

you must re-establish an action level at 

least once every six months thereafter. 

(i) You must measure and record the 

mercury concentration for at least 14 

days and no more than 30 days using a 

system that meets the requirements of 

paragraph (i)(1) of this section. For the 

initial action level, this monitoring must 

begin on the applicable compliance date 

specified for your affected source in 

§ 63.8186(a)(2) or (3). 

(ii) Using the monitoring data 

collected according to paragraph (i)(2)(i) 

of this section, you must establish your 

action level at the 90th percentile of the 

data set. 

(iii) You must submit your initial 

action level according to § 63.8252(f) 

and subsequent action levels according 

to § 63.8252(g). 


emcdonald on DSK2BSOYB1PROD with PROPOSALS4
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(3) Beginning on the compliance date 

specified for your affected source in 

§ 63.8186(a)(2) or (3), you must 

continuously monitor the mercury 

concentration in the cell room. Failure 

to monitor and record the data 

according to § 63.8256(e)(4)(iii) for 75 

percent of the time in any 6-month 

period constitutes a deviation. 

(4) If the average mercury 

concentration for any 1-hour period 

exceeds the currently applicable action 

level established according to paragraph 

(i)(2) of this section, you must meet the 

requirements in either paragraph (i)(4)(i) 

or (ii) of this section. 

(i) If you determine that the cause of 

the elevated mercury concentration is 

an open electrolyzer, decomposer, or 

other maintenance activity, you must 

record the information specified in 

paragraphs (i)(4)(i)(A) through (C) of this 

section. 

(A) A description of the maintenance 

activity resulting in elevated mercury 

concentration; 

(B) The time the maintenance activity 

was initiated and completed; and 

(C) A detailed explanation how all the 

applicable requirements of Table 1 to 

this subpart were met during the 

maintenance activity. 

(ii) If you determine that the cause of 

the elevated mercury concentration is 

not an open electrolyzer, decomposer, 

or other maintenance activity, you must 

follow the procedures specified in 

paragraphs (i)(4)(ii)(A) and (B) of this 

section until the mercury concentration 

falls below the action level. You must 

also keep all the associated records for 

these procedures as specified in Table 

12 to this subpart. Nonadherence to the 

intervals in paragraphs (i)(4)(ii)(A) and 

(B) of this section constitutes a 

deviation and must be documented and 

reported in the compliance report, as 

required by § 63.8254(b). 

(A) Within 1 hour of the time the 

action level was exceeded, you must 

conduct each inspection specified in 

Table 2 to this subpart, with the 

exception of the cell room floor and the 

pillars and beam inspections. You must 

correct any problem identified during 

these inspections in accordance with 

the requirements in Tables 2 and 3 to 

this subpart. 

(B) If the Table 2 inspections and 

subsequent corrective actions do not 

reduce the mercury concentration below 

the action level, you must inspect all 

decomposers, hydrogen system piping 

up to the hydrogen header, and other 

potential locations of mercury vapor 

leaks using a technique specified in 

Table 6 to this subpart. If a mercury 

vapor leak is identified, you must take 

the appropriate action specified in 

Table 3 to this subpart. 

16. Section 63.8230 is amended by 

revising paragraph (b) and adding 

paragraph (c) to read as follows: 

§ 63.8230 By what date must I conduct 

performance tests or other initial 

compliance demonstrations? 

* * * * * 

(b) For the applicable work practice 

standards in § 63.8192(a) through (g), 

you must demonstrate initial 

compliance within 30 calendar days 

after the compliance date that is 

specified for your affected source in 

§ 63.8186(a)(1). 

(c) For the applicable work practice 

standards in § 63.8192(e), (f), (h), and (i), 

you must demonstrate initial 

compliance within 60 calendar days 

after the applicable compliance date 

that is specified for your affected source 

in § 63.8186(a)(2) or (3). 

17. Section 63.8236 is amended by 

revising paragraph (c) introductory text 

and by adding paragraphs (e) and (f) to 

read as follows: 

§ 63.8236 How do I demonstrate initial 

compliance with the emission limitations 

and work practice standards? 

* * * * * 

(c) For each affected source, you have 

demonstrated initial compliance with 

the applicable work practice standards 

in § 63.8192(a) through (g) if you 

comply with paragraphs (c)(1) through 

(7) of this section: 

* * * * * 

(e) After the date of publication of the 

final rule in the Federal Register, for 

each affected source, you have 

demonstrated initial compliance with 

the applicable work practice standards 

in § 63.8192(e), (f), (h), and (i) if you 

comply with paragraphs (e)(1) through 

(4) of this section: 

(1) You certify in your Revised Work 

Practice Notification of Compliance 

Status that you are operating according 

to the work practice standards in 

§ 63.8192(h). 

(2) You have submitted your cell 

room monitoring plan as part of your 

Revised Work Practice Notification of 

Compliance Status and you certify in 

your Revised Work Practice Notification 

of Compliance Status that you are 

operating according to the continuous 

cell room monitoring program under 

§ 63.8192(i) and that you have 

established your initial action level 

according to § 63.8192(i)(2). 

(3) You have re-submitted your 

washdown plan as part of your Revised 

Work Practice Notification of 

Compliance Status and you re-certify in 

your Revised Work Practice Notification 

of Compliance Status that you are 

operating according to your washdown 

plan. 

(4) You have re-submitted records of 

the mass of virgin mercury added to 

cells for the 5 years preceding December 

19, 2006, as part of your Revised Work 

Practice Notification of Compliance 

Status. 

(f) You must submit the Revised Work 

Practice Notification of Compliance 

Status containing the results of the 

initial compliance demonstration 

according to the requirements in 

§ 63.8252(f). 

18. Section 63.8246 is amended by 

revising the first sentence of paragraph 

(b)(1) introductory text to read as 

follows: 

§ 63.8246 How do I demonstrate 

continuous compliance with the emission 

limitations and work practice standards? 

* * * * * 

(b) * * * 

(1) For each mercury thermal recovery 

unit vent, you must demonstrate 

continuous compliance with the 

applicable emission limit specified in 

§ 63.8190(a)(3) by maintaining the outlet 

mercury daily-average concentration no 

higher than the applicable limit. * * * 

* * * * * 

19. Section 63.8252 is amended by 

adding paragraphs (f) and (g) to read as 

follows: 

§ 63.8252 What notifications must I submit 

and when? 

* * * * * 

(f) You must submit a Revised Work 

Practice Notification of Compliance 

Status according to paragraphs (f)(1) and 

(2) of this section. 

(1) You must submit a Revised Work 

Practice Notification of Compliance 

Status before the close of business on 

the date 60 days after the applicable 

compliance date in § 63.8186(a)(2) or 

(3). The Revised Work Practice 

Notification of Compliance Status must 

contain the items in paragraphs (f)(1)(i) 

through (iii) of this section: 

(i) A certification that you are 

operating according to the work practice 

standards in § 63.8192(h). 

(ii) Your cell room monitoring plan, 

including your initial action level 

determined in accordance with 

§ 63.8192(i)(2), and a certification that 

you are operating according to the 

continuous cell room monitoring 

program under § 63.8192(i). 

(iii) Your washdown plan, and a 

certification that you are operating 

according to your washdown plan under 

§ 63.8192(e). 

(2) Records of the mass of virgin 

mercury added to cells for the 5 years 

preceding December 19, 2006. 


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(g) You must submit subsequent 

action levels determined in accordance 

with § 63.8192(i)(2), along with the 

supporting data used to establish the 

action level, within 30 calendar days 

after completion of data collection. 

20. Section 63.8254 is amended by 

revising paragraph (b)(7) introductory 

text to read as follows: 

§ 63.8254 What reports must I submit and 

when? 

* * * * * 

(b) * * * 

(7) For each deviation from the 

requirements for work practice 

standards in Tables 1 through 4 to this 

subpart that occurs at an affected source 

(including deviations where the 

response intervals were not adhered to 

as described in § 63.8192(b)), each 

deviation from the cell room monitoring 

program monitoring and data recording 

requirements in § 63.8192(i)(3), and 

each deviation from the response 

intervals required by § 63.8192(i)(4) 

when an action level is exceeded, the 

compliance report must contain the 

information in paragraphs (b)(1) through 

(4) of this section and the information 

in paragraphs (b)(7)(i) and (ii) of this 

section. This includes periods of 

startup, shutdown, and malfunction. 

* * * * * 

21. Section 63.8256 is amended by 

revising paragraph (c) introductory text 

and adding paragraph (e) to read as 

follows: 

§ 63.8256 What records must I keep? 

* * * * * 

(c) Records associated with the work 

practice standards that must be kept 

prior to the applicable compliance date 

in § 63.8186(a)(2) or (3). 

* * * * * 

(e) Records associated with the work 

practice standards that must be kept 

after the applicable compliance date in 

§ 63.8186(a)(2) or (3). 

(1) You must keep the records 

specified in paragraphs (e)(1)(i) and (ii) 

of this section. 

(i) A weekly record certifying that you 

have complied with the work practice 

standards in Tables 1 through 4 to this 

subpart. This record must, at minimum, 

list each general requirement specified 

in paragraphs (e)(1)(i)(A) through (D) of 

this section. Figure 1 to this subpart 

provides an example of this record. 

(A) The design, operation, and 

maintenance requirements in Table 1 to 

this subpart, 

(B) The required inspections in 

Table 2 to this subpart, 

(C) The required actions for liquid 

mercury spills and accumulations and 

hydrogen and mercury vapor leaks in 

Table 3 to this subpart, and 

(D) The requirements for mercury 

liquid collection in Table 4 to this 

subpart. 

(ii) The records specified in Table 12 

to this subpart related to mercury and 

hydrogen leaks. 

(2) You must maintain a copy of your 

current washdown plan and records of 

when each washdown occurs. 

(3) You must maintain records of the 

mass of virgin mercury added to cells 

for each reporting period. 

(4) You must keep your current cell 

room monitoring plan and the records 

specified in paragraphs (e)(4)(i) through 

(vi) of this section. 

(i) Records of the monitoring 

conducted in accordance with 

§ 63.8192(i)(2)(i) to establish your action 

levels, and records demonstrating the 

development of these action levels. 

(ii) During each period that you are 

gathering cell room monitoring data in 

accordance with the requirements of 

§ 63.8192(i)(2)(i), records specified in 

Table 9. 

(iii) Records of the cell room mercury 

concentration monitoring data collected. 

(iv) Instances when the action level is 

exceeded. 

(v) Records specified in 

§ 63.8192(i)(4)(i) for maintenance 

activities that cause the mercury vapor 

concentration to exceed the action level. 

(vi) Records of all inspections and 

corrective actions taken in response to 

a non-maintenance related situation in 

which the mercury vapor concentration 

exceeds the action level as specified in 

Table 12 of this subpart. 

22. Section 63.8266 is amended by 

revising the definitions of ‘‘Mercury cell 

chlor-alkali plant’’ and ‘‘Mercury 

recovery facility’’ to read as follows: 

§ 63.8266 What definitions apply to this 

subpart? 

* * * * * 

Mercury cell chlor-alkali plant means 

all contiguous or adjoining property that 

is under common control, where a 

mercury cell chlor-alkali production 

facility and/or a mercury recovery 

facility is located. A mercury cell chloralkali plant includes a mercury recovery 

facility at a plant where the mercury cell 

chlor-alkali production facility ceases 

production. 

* * * * * 

Mercury recovery facility means an 

affected source consisting of all 

processes and associated operations 

needed for mercury recovery from 

wastes generated by a mercury cell 

chlor-alkali plant. 

* * * * * 

23. The tables to subpart IIIII are 

amended as follows: 

a. By revising the heading to table 5; 

b. By revising the introductory text to 

table 9; 

c. By adding tables 11 and 12; and 

d. By adding figure 1: 

* * * * * 

TABLE 5 TO SUBPART IIIII OF PART 

63 —REQUIRED ELEMENTS OF 

FLOOR–LEVEL MERCURY VAPOR 

MEASUREMENT AND CELL ROOM 

MONITORING PLANS PRIOR TO THE 

APPLICABLE COMPLIANCE DATE 

SPECIFIED IN § 63.8186(a)(2) OR (3) 

* * * * * 

TABLE 9 TO SUBPART IIIII OF PART 

63—REQUIRED RECORDS FOR WORK 

PRACTICE STANDARDS 

As stated in § 63.8256(c), you must 

keep the records (related to the work 

practice standards) specified in the 

following table prior to the applicable 

compliance date specified in 

§ 63.8186(a)(2) or (3). After the 

applicable compliance date specified in 

§ 63.8186(a)(2) or (3), you must keep the 

records (related to the work practice 

standards) specified in the following 

table during the period when you are 

collecting cell room monitoring data in 

accordance with § 63.8192(i)(2)(i) to 

establish your action level: 

* * * * * 

TABLE 11 TO SUBPART IIIII of Part 

63—REQUIRED ELEMENTS CELL 

ROOM MONITORING PLANS AFTER 

THE APPLICABLE COMPLIANCE 

DATE SPECIFIED IN § 63.8186(a)(2) OR 

(3) 

Your Cell Room Monitoring Plan 

required by § 63.8192(i) must contain 

the elements listed in the following 

table: 

You must specify in your cell room monitoring plan * * * Additional requirements 

1. Details of your mercury monitoring system.

2. How representative sampling will be conducted ........... Include some pre-plan measurements to demonstrate the profile of mercury concentration in the cell room and how the selected sampling locations ensure conducted representativeness. 


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You must specify in your cell room monitoring plan * * * Additional requirements 

3. Quality assurance/quality control procedures for your 

mercury monitoring system.

Include a description of how you will keep records or other means to demonstrate 

that the system is operating properly. 

4. Your current action level ............................................. Include the background data used to establish your current level. Records of previous action levels must be kept for 5 years in accordance with § 63.8258, but are 

not required to be included as part of your cell room monitoring plan. 

TABLE 12 TO SUBPART IIIII OF PART 

63—REQUIRED RECORDS FOR WORK 

PRACTICE STANDARDS AFTER THE 

APPLICABLE COMPLIANCE DATE 

SPECIFIED IN § 63.8186(a)(2) OR (3) 

As stated in § 63.8256(e)(1), you must 

keep the records (related to the work 

practice standards) specified in the 

following table; 

For each * * * You must record the following information * * * 

1. Liquid mercury spill or accumulation identified during 

an inspection required by Table 2 to this subpart or at 

any other time.

a. Location of the liquid mercury spill or accumulation. 

b. Method you use to clean up the liquid mercury spill or accumulation. 

c. Date and time when you clean up the liquid mercury spill or accumulation. 

d. Source of the liquid mercury spill or accumulation. 

e. If the source of the liquid mercury spill or accumulation is not identified, the time 

when you inspect the area. 

2. Liquid mercury leak or hydrogen leak identified during 

an inspection required by Table 2 to this subpart or at 

any other time.

a. Location of the leak. 

b. Date and time you identify the leak. 

c. If the leak is a liquid mercury leak, the date and time that you successfully contain 

the dripping liquid mercury. 

d. Date and time you successfully stop the leak and repair the leaking equipment. 

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BILLING CODE 6560–50–C 

[AMENDMENTS INDEPENDENT OF 

WHICH OPTION IS SELECTED] 

Subpart IIIII—[AMENDED] 

24. Section 63.8226 is revised to read 

as follows: 

§ 63.8226 What are my general 

requirements for complying with this 

subpart? 

(a) You must be in compliance with 

the applicable emission limitations in 

§ 63.8190 at all times. Prior to achieving 

compliance with § 63.8190(b), you must 

be in compliance with the applicable 

work practice standards in § 63.8192 at 

all times. 

(b) At all times you must operate and 

maintain any affected source, including 

associated air pollution control 

equipment and monitoring equipment, 

in a manner consistent with safety and 

good air pollution control practices for 

minimizing emissions. The general duty 

to minimize emissions does not require 

you to make any further efforts to 

reduce emissions if levels required by 

this standard have been achieved. 

Determination of whether such 

operation and maintenance procedures 

are being used will be based on 

information available to the 

Administrator which may include, but 

is not limited to, monitoring results, 

review of operation and maintenance 

procedures, review of operation and 

maintenance records, and inspection of 

the source. 

25. Section 63.8232 is amended by 

removing and reserving paragraph (a) to 

read as follows: 

§ 63.8232 [Amended] 

(a) [Reserved] 

* * * * * 

26. Section 63.8242 is amended by 

revising paragraph (a)(2) to read as 

follows: 

§ 63.8242 What are the installation, 

operation, and maintenance requirements 

for my continuous monitoring systems? 

(a) * * * 

(2) Each mercury continuous 

emissions monitor analyzer must have a 

detector with the capability to detect a 


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mercury concentration of either 0.5 

times the mercury concentration level 

measured during the performance test 

conducted according to § 63.8232 or 0.1 

μg/m3. 

* * * * * 

27. Section 63.8246 is amended by 

revising paragraph (b)(1) to read as 

follows: 

§ 63.8246 How do I demonstrate 

continuous compliance with the emission 

limitations and work practice standards? 

* * * * * 

(b) * * * 

(1) For each mercury thermal recovery 

unit vent, you must demonstrate 

continuous compliance with the 

applicable emission limit specified in 

§ 63.8190(a)(3) by maintaining the outlet 

mercury daily-average concentration no 

higher than the applicable limit. To 

determine the outlet mercury 

concentration, you must monitor 

according to paragraphs (b)(1)(i) or (ii) 

of this section. 

* * * * * 

28. Section 63.8248 is amended as 

follows: 

a. Revising paragraph (a)(1); 

b. Revising paragraph (a)(2); and 

c. Removing and reserving paragraph 

(b). 

The revisions read as follows: 

§ 63.8248 What other requirements must I 

meet? 

(a) * * * 

(1) You must report each instance in 

which you did not meet each emission 

limitation in § 63.8190 that applies to 

you. 

(2) You must report each instance in 

which you did not meet each work 

practice standard in § 63.8192 that 

applies to you 

* * * * * 

(b) [Reserved] 

29. Section 63.8254 is amended as 

follows: 

c. Removing and reserving paragraph 

(b)(4); 

d. Revising paragraph (b)(7) 

introductory text; 

e. Revising paragraph (b)(8) 

introductory text; 

f. Revising paragraph (b)(8)(iv); 

g. Revising paragraph (b)(8)(vi); 

h. Revising paragraph (b)(9) 

introductory text; 

i. Revising paragraph (b)(9)(ii); 

j. Revising paragraph (b)(9)(vi); and 

k. Removing and reserving paragraph 

(c). 

The revisions read as follows: 

§ 63.8254 What reports must I submit and 

when? 

* * * * * 

(b) * * * 

(4) [Reserved] 

* * * * * 

(7) For each deviation from the 

requirements for work practice 

standards in Tables 1 through 4 to this 

subpart that occurs at an affected source 

(including deviations where the 

response intervals were not adhered to 

as described in § 63.8192(b)), the 

compliance report must contain the 

information in paragraphs (b)(1) through 

(4) of this section and the information 

in paragraphs (b)(7)(i) and (ii) of this 

section. 

* * * * * 

(8) For each deviation from an 

emission limitation occurring at an 

affected source where you are using a 

mercury continuous emission monitor, 

according to the site-specific monitoring 

plan required in § 63.8242(a)(3), to 

comply with the emission limitation in 

this subpart, you must include the 

information in paragraphs (b)(1) through 

(4) of this section and the information 

in paragraphs (b)(8)(i) through (xii) of 

this section. 

* * * * * 

(iv) The date and time that each 

deviation started and stopped. 

* * * * * 

(vi) A breakdown of the total duration 

of the deviations during the reporting 

period including those that are due to 

control equipment problems, process 

problems, other known causes, and 

other unknown causes. 

* * * * * 

(9) For each deviation from an 

operation and maintenance standard 

occurring at an affected source where 

you are using the periodic monitoring 

option specified in § 63.8240(b) and 

your final control device is not a 

nonregenerable carbon adsorber, the 

compliance report must include the 

information in paragraphs (b)(1) through 

(4) of this section and the information 

in paragraphs (b)(9)(i) through (x) of this 

section. 

* * * * * 

(ii) Information on the number, 

duration, and cause of deviations 

(including unknown cause, if 

applicable), as applicable, and the 

corrective action taken. 

* * * * * 

(vi) A breakdown of the total duration 

of the deviations during the reporting 

period including those that are due to 

process problems, other known causes, 

and other unknown causes. 

* * * * * 

(c) [Reserved] 

* * * * * 

30. Section 63.8256 is amended by 

removing and reserving paragraph (a)(2) 

to read as follows: 

§ 63.8256 What records must I keep? 

(a) * * * 

(2) [Reserved] 

* * * * * 

31. Section 63.8266 is amended by 

revising the definitions of ‘‘Deviation;’’ 

and ‘‘Mercury cell chlor-alkali plant’’ to 

read as follows: 

§ 63.8266 What definitions apply to this 

subpart? 

* * * * * 

Deviation means any instance in 

which an affected source subject to this 

subpart, or an owner or operator of such 

a source: 

(1) Fails to meet any requirement or 

obligation established by this subpart 

including, but not limited to, any 

emission limitation (including any 

operating limit) or work practice 

standard; 

(2) Fails to meet any term or condition 

that is adopted to implement an 

applicable requirement in this subpart 

and that is included in the title V 

operating permit for any affected source 

required to obtain such a permit; or 

(3) Fails to take corrective actions 

within 48 hours that result in parameter 

monitoring values being within range. 

* * * * * 

Mercury cell chlor-alkali plant means 

all contiguous or adjoining property that 

is under common control, where a 

mercury cell chlor-alkali production 

facility and/or a mercury recovery 

facility is located. A property where 

only a mercury recovery facility is 

operating is considered a mercury cell 

chlor-alkali plant if a mercury cell 

chlor-alkali production facility had 

operated on that property at any time in 

the past. 

* * * * * 

32. Table 10 to subpart IIIII of part 63 

is revised to read as follows: 


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TABLE 10 TO SUBPART IIIII OF PART 63—APPLICABILITY OF GENERAL PROVISIONS TO SUBPART IIIII 

[As stated in § 63.8262, you must comply with the applicable General Provisions requirements according to the following table] 

Citation Subject 

Applies 

to Subpart IIIII Explanation 

§ 63.1 ......................................... Applicability .................................................................................... Yes.

§ 63.2 ......................................... Definitions ...................................................................................... Yes.

§ 63.3 ......................................... Units and Abbreviations ................................................................ Yes.

§ 63.4 ......................................... Prohibited Activities ....................................................................... Yes.

§ 63.5 ......................................... Construction/Reconstruction .......................................................... Yes.

§ 63.6(a)–(g), (i), (j), except for 

(e)(1)(i) and (ii), (e)(3), and 

(f)(1).

Compliance with Standards and Maintenance Requirements ...... Yes.

§ 63.6(e)(1)(i) and (ii), (e)(3), 

and (f)(1).

SSM Requirements ....................................................................... No.

§ 63.6(h) ..................................... Compliance with Opacity and Visible Emission Standards .......... No ....... Subpart IIIII does not have 

opacity and visible emission 

standards. 

§ 63.7(a)(1), (b)–(h), except 

(e)(1).

Performance Testing Requirements .............................................. Yes ...... Subpart IIIII specifies additional 

requirements related to sitespecific test plans and the 

conduct of performance tests. 

§ 63.7(e)(1) ................................. Performance Testing Requirements Related to SSM ................... No.

§ 63.7(a)(2) ................................. Applicability and Performance Test Dates .................................... No ....... Subpart IIIII requires the performance test to be performed on the compliance 

date. 

§ 63.8(a)(1), (a)(3); (b); (c)(1)– 

(4), (6)–(8); (d); (e); and 

(f)(1)–(5).

Monitoring Requirements .............................................................. Yes.

§ 63.8(a)(2) ................................. Continuous Monitoring System (CMS) Requirements .................. No ....... Subpart IIIII requires a site-specific monitoring plan in lieu of 

a promulgated performance 

specification for a mercury 

concentration CMS. 

§ 63.8(a)(4) ................................. Additional Monitoring Requirements for Control Devices in 

§ 63.11.

No ....... Subpart IIIII does not require 

flares. 

§ 63.8(c)(5) ................................. COMS Minimum Procedures ......................................................... No ....... Subpart IIIII does not have 

opacity and visible emission 

standards. 

§ 63.8(f)(6) .................................. Alternative to Relative Accuracy Test ........................................... No ....... Subpart IIIII does not require 

CEMS. 

§ 63.8(g) ..................................... Data Reduction .............................................................................. No ....... Subpart IIIII specifies mercury 

concentration CMS data reduction requirements. 

§ 63.9(a)–(e), (g)–(j) ................... Notification Requirements ............................................................. Yes.

§ 63.9(f) ...................................... Notification of VE/Opacity Test ..................................................... No ....... Subpart IIIII does not have 

opacity and visible emission 

standards. 

§ 63.10(a); (b)(1); (b)(2)(vi)–(xii), 

(xiv); (b)(3); (c); (d)(1)–(2), 

(4); (e); (f).

Recordkeeping/Reporting .............................................................. Yes.

§ 63.10(b)(2)(i)–(v), (d)(5) .......... Recordkeeping/Reporting Associated with Startup, Shutdown, 

and Malfunctions.

No.

§ 63.10(b)(2)(xiii) ........................ CMS Records for RATA Alternative .............................................. No ....... Subpart IIIII does not require 

CEMS. 

§ 63.10(d)(3) ............................... Reporting Opacity or VE ...............................................................

Observations ..................................................................................

No ....... Subpart IIIII does not have 

opacity and visible emission 

standards. 

§ 63.11 ....................................... Flares ............................................................................................. No ....... Subpart IIIII does not require 

flares. 

§ 63.12 ....................................... Delegation ...................................................................................... Yes.

§ 63.13 ....................................... Addresses ...................................................................................... Yes.

§ 63.14 ....................................... Incorporation by Reference ........................................................... Yes.

§ 63.15 ....................................... Availability of Information .............................................................. Yes.

[FR Doc. 2011–5530 Filed 3–11–11; 8:45 am] 

BILLING CODE 6560–50–P 


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