```

[Federal Register Volume 76, Number 199 (Friday, October 14, 2011)]
[Proposed Rules]
[Pages 63878-63891]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26089]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2010-0750; FRL-9477-1]
RIN 2060-AQ10

New Source Performance Standards Review for Nitric Acid Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is proposing revisions to the new source performance 
standards (NSPS) for nitric acid plants. Nitric acid plants include one 
or more nitric acid production units. These proposed revisions include 
a change to the nitrogen oxides (NOX) emission limit, which 
applies to each nitric acid production unit commencing construction, 
modification, or reconstruction after October 14, 2011. These proposed 
revisions will also include additional testing and monitoring 
requirements.

DATES: Comments must be received on or before November 28, 2011. Under 
the Paperwork Reduction Act, comments on the information collection 
provisions are best assured of having full effect if the Office of 
Management and Budget (OMB) receives a copy of your comments on or 
before November 14, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2010-0750, by one 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 EPA-HQ-OAR-2010-
0750 in the subject line of the message.
     Fax: Fax your comments to: (202) 566-9744, Attention 
Docket ID No. EPA-HQ-OAR-2010-0750.
     Mail: Send your comments to: EPA Docket Center (EPA/DC), 
Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OAR-
2010-0750. 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 or Courier: In person or by courier, deliver 
comments to EPA Docket Center, EPA West, Room 3334, 1301 Constitution 
Ave., NW., Washington, DC 20460. Such deliveries are only accepted 
during the Docket Center's normal hours of operation, (8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays), and 
special arrangements should be made for deliveries of boxed 
information. Please include a total of two copies.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
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 that the 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 the 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 will be made available on the 
Internet. If you submit an electronic comment, the EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any 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. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see the ``General Information'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    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, will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy at the EPA 
Docket Center, Public Reading Room, 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: For questions about these proposed 
standards for nitric acid production units, contact Mr. Chuck French, 
Sector

[[Page 63879]]

Policies and Program Division, Office of Air Quality Planning and 
Standards (D243-02), Environmental Protection Agency, Research Triangle 
Park, North Carolina 27711, telephone number (919) 541-7912; fax number 
(919) 541-3207, e-mail address: French.chuck@epa.gov.

SUPPLEMENTARY INFORMATION: 
    The information presented 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?
    C. Where can I get a copy of this document?
    D. When would a public hearing occur?
II. Background Information
    A. What is the statutory authority for these proposed revisions?
    B. What are the current NSPS for Nitric Acid Plants?
III. Summary of Proposed Standards
    A. What source category is being regulated?
    B. What pollutants are emitted from these sources?
    C. What are the proposed standards?
IV. Rationale for the Proposed Standards
    A. How is EPA proposing to revise the emissions limit for 
affected sources?
    B. How is EPA proposing to revise the testing and monitoring 
requirements?
    C. How is EPA proposing to revise the notification, reporting, 
and recordkeeping requirements?
V. Summary of Cost, Environmental, Energy, and Economic Impacts of 
These Proposed Standards
    A. What are the impacts for new nitric acid production units?
    B. What are the secondary impacts for new nitric acid production 
units?
    C. What are the economic impacts for new nitric acid production 
units?
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paper 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?

    Categories and entities potentially regulated by these proposed 
revisions include:

----------------------------------------------------------------------------------------------------------------
           Category              NAICS code \1\                   Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Industry......................            325311  Nitrogenous Fertilizer Manufacturing.
Federal government............  ................  Not affected.
State/local/tribal government.  ................  Not affected.
----------------------------------------------------------------------------------------------------------------
\1\ North American Industrial Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether your facility would be regulated by this 
action, you should examine the applicability criteria in 40 CFR 60.70a. 
If you have any questions regarding the applicability of this proposed 
action to a particular entity, contact the person in the preceding FOR 
FURTHER INFORMATION CONTACT section.

B. What should I consider as I prepare my comments to the EPA?

    Do not submit information that you consider to be CBI 
electronically 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), Office of 
Air Quality Planning and Standards, Environmental Protection Agency, 
Research Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-
2010-0750. 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 marked as CBI 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 
the proposed action is available on the Worldwide Web (WWW) through the 
Technology Transfer Network (TTN) Web site. Following signature, EPA 
posted a copy of the proposed action on the TTN Web site's policy and 
guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN Web site 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 by 
October 24, 2011, a public hearing will be held on October 28, 2011. 
Persons interested in presenting oral testimony or inquiring as to 
whether a public hearing is to be held should contact Mr. Chuck French, 
listed in the FOR FURTHER INFORMATION CONTACT section.

II. Background Information

A. What is the statutory authority for these proposed revisions?

    New source performance standards (NSPS) implement Clean Air Act 
(CAA) section 111. Section 111 of the CAA requires that NSPS reflect 
the application of the best system of emission reductions which (taking 
into consideration the cost of achieving such emission reductions, any 
nonair quality health and environmental impact and energy requirements) 
the Administrator determines has been adequately demonstrated. This 
level of control has sometimes been referred to as ``best demonstrated 
technology'' or BDT, and will be referred to in this preamble as best 
system of emissions reduction (BSER). In assessing whether a standard 
is achievable, EPA must account for routine operating variability 
associated with performance of the system on whose performance the 
standard is based. See National Lime Ass'n v. EPA, 627 F. 2d 416, 431-
33 (DC Cir. 1980).
    Common sources of information as to what constitutes a BSER, and 
for assessing that technology's level of performance, include best 
available control technology (BACT) determinations made as part of new 
source review (NSR). Also, emissions limits that exist in state and 
federal permits for recently permitted sources,

[[Page 63880]]

and emissions test data for demonstrated control technologies collected 
for compliance demonstration or other purposes are evaluated during 
these assessments. EPA compares permit limitations and BACT 
determination data with actual performance test data to identify any 
site-specific factors that could influence general applicability of 
this information. Also, as part of this review we evaluate if 
NOX emissions limits more stringent than those in Subpart G 
have been established, or if emissions limits have been developed for 
additional air pollutants.
    The use of State permit data and BACT determination developed as 
part of NSR is appropriate because a BACT determination evaluates 
information that is similar to BSER, such as available controls, their 
performance, cost, and non-air environmental impacts. One important 
difference between BACT determinations and a BSER determination for 
purposes of NSPS is that BACT determinations are made on a site-
specific basis. Therefore, in evaluating BACT determinations, we have 
to account for any site-specific factors that may not be applicable to 
the source category as a whole.
    Section 111(b)(1)(B) of the CAA requires EPA to periodically review 
and revise the standards of performance, as necessary, to reflect 
improvements in methods for reducing emissions.
    Existing affected facilities that are modified or reconstructed 
would also be subject to these proposed revisions for affected sources. 
Under CAA section 111(a)(4), ``modification'' means any physical change 
in, or change in the method of operation of, a stationary source which 
increases the amount of any air pollutant emitted by such source or 
which results in the emission of any air pollutant not previously 
emitted. Changes to an existing facility that do not result in an 
increase in emissions are not considered modifications. Rebuilt 
affected facilities would become subject to the proposed standards 
under the reconstruction provisions, regardless of changes in emission 
rate. Reconstruction means the replacement of components of an existing 
facility such that (1) The fixed capital cost of the new components 
exceeds 50 percent of the fixed capital cost that would be required to 
construct a comparable entirely new facility; and (2) it is 
technologically and economically feasible to meet the applicable 
standards (40 CFR 60.15).
    The NSPS are directly enforceable federal regulations issued for 
categories of sources which cause, or contribute significantly to, air 
pollution which may reasonably be anticipated to endanger public health 
or welfare. The primary purpose of the NSPS is to attain and maintain 
ambient air quality by ensuring that the best demonstrated emission 
control technologies are installed as the industrial infrastructure is 
modernized, when it is most cost effective to build in controls. Since 
1970, the NSPS have been successful in achieving long-term emissions 
reductions in numerous industries by assuring that cost-effective 
controls are installed on new, reconstructed, or modified sources.

B. What are the current NSPS for Nitric Acid Plants NSPS?

    The current NSPS for Nitric Acid Plants (40 CFR part 60, Subpart G) 
were promulgated in the Federal Register on December 23, 1971 (36 FR 
24881). The first review of the Nitric Acid Plants NSPS was completed 
on June 19, 1979 (44 FR 35265). An additional review was completed on 
April 5, 1984 (49 FR 13654). No changes were made to the NSPS as a 
result of those reviews. Minor testing and monitoring changes were made 
during three reviews since the original promulgation in 1971 (October 
6, 1975 (40 FR 46258), April 22, 1985 (50 FR 15894), and February 14, 
1989 (54 FR 6666)). The current Nitric Acid Plants NSPS (Subpart G) 
applies to each nitric acid production unit constructed or modified 
after August 17, 1971. The present NSPS has an emissions limit of 3.0 
lb of NOX per ton of 100% nitric acid produced and a 10% 
opacity standard as an additional method of demonstrating compliance 
with the NOX emission limit. Continuous NOX 
monitors are required as well as recording daily production rates.

III. Summary of Proposed Standards

A. What source category is being regulated?

    Today's proposed standards would apply to new nitric acid 
production units. Nitric acid plants may include one or more nitric 
acid production units. For purposes of these proposed regulations, a 
nitric acid production unit is defined as any facility producing weak 
nitric acid by either the pressure or atmospheric pressure process. 
This definition has not changed from Subpart G.
    A new nitric acid production unit is defined as a nitric acid 
production unit for which construction, modification, or reconstruction 
commences on or after October 14, 2011. The affected facility under the 
proposed NSPS is each nitric acid production unit.

B. What pollutants are emitted from these sources?

    The pollutant to be regulated under section 111(b), for new nitric 
acid production units, is NOX which undergo reactions in the 
atmosphere to form particulate matter and ozone. Nitrogen oxides, 
particulate matter, and ozone are all subject to national ambient air 
quality standards under section 109 of the Clean Air Act, based on 
their adverse effects to human health and welfare. NOX is a 
criteria pollutant.
    These nitric acid production units also emit another nitrogen 
compound known as nitrous oxide (N2O), which is considered a 
greenhouse gas (GHG). We are not proposing an N2O emission 
standard in this action. Although we have limited data from facilities 
in the U.S, we believe that owners/operators of nitric acid production 
units should consider technologies and technology combinations that 
would be appropriate for controlling both NOX and 
N2O. Some technologies such as selective catalytic reduction 
(SCR) and hydrogen peroxide injection (HPI) are effective only in 
controlling NOX. However, other technologies such as 
nonselective catalytic reduction (NSCR) are effective in controlling 
both NOX and N2O.
    The technology combinations that control both NOX and 
N2O include SCR plus secondary catalysts (located in the 
ammonia reactor), and SCR plus other non-NSCR types of tertiary 
catalysts (located after the absorption tower). We expect any controls 
applied to control NOX emissions would not preclude 
installing cost effective N2O control technologies in the 
future. We solicit relevant comments and additional information on 
these technologies. Nitric acid production is also one of the 
industrial sectors for which ``white papers'' were written to provide 
basic information on GHG control options to assist state and local air 
pollution control agencies, tribal authorities, and regulated entities 
in implementing measures to reduce GHGs, particularly in the assessment 
of BACT under the PSD permitting program. These papers provide basic 
technical information that may be useful in a BACT analysis but they do 
not define BACT for each sector. For more information regarding the 
``white papers,'' see http://www.epa.gov/nsr/ghgpermitting.html.

C. What are the proposed standards?

    We are proposing to reduce the NOX emissions limit from 
3.0 pounds of NOX per ton of nitric acid produced (lb 
NOX/ton acid), expressed as NO2, with the 
production being expressed as 100 percent nitric acid, to 0.50 lb 
NOX/ton

[[Page 63881]]

acid as a 30-day emission rate calculated each operating day based on 
the previous 30 consecutive operating days.
    The general provisions in 40 CFR part 60 provide that emissions in 
excess of the level of the applicable emissions limit during periods of 
startup, shutdown, and malfunction shall not be considered a violation 
of the applicable emission limit unless otherwise specified in the 
applicable standard. See 40 CFR 60.8(c). The general provisions, 
however, may be amended for individual subparts. See 40 CFR 60.8(h). 
Here, the EPA is proposing standards in Subpart Ga that apply at all 
times, including periods of startup or shutdown, and periods of 
malfunction.

IV. Rationale for the Proposed Standards

    Section 111(a)(1) requires that standards of performance for new 
sources reflect the--

    * * * degree of emission limitation achievable through the 
application of the best system of emission reduction which (taking 
into account the cost of achieving such reduction, and any nonair 
quality health and environmental impact and energy requirements) the 
Administrator determines has been adequately demonstrated.

A. How is EPA proposing to revise the emissions limit for affected 
sources?

    For affected sources constructed, modified, or reconstructed after 
October 14, 2011, we are proposing to reduce the NOX 
emissions limit from 3.0 lb NOX/ton acid to 0.50 lb 
NOX/ton acid as a 30-day emission rate calculated each 
operating day based on the previous 30 consecutive operating days.
    The NOX emissions limit for affected facilities 
constructed, modified, or reconstructed after August 17, 1971, and 
before October 14, 2011 remains unchanged at 3.0 lb NOX/ton 
acid.
    The 1971 promulgated Nitric Acid Plants NSPS were based on emission 
levels achieved using catalytic reduction (see 36 FR 2881, December 23, 
1971). Additional reviews of the NSPS were conducted in 1979 and 1984, 
where EPA again concluded that catalytic reduction was the BSER 
considering economic, energy, and nonair environmental impacts. No 
changes were made to the NSPS during these reviews.
    There are currently 40 nitric acid production facilities in the 
U.S. with a total of 67 nitric acid production units. For this review, 
information was collected from responses to a section 114 information 
collection request (ICR), through site visits and from trade 
associations. The information and comments from stakeholders are 
contained in the docket.
    The review of permits and other available information in the record 
revealed that SCR, NSCR, and HPI are all air pollution control 
technologies that are used for NOX control in the nitric 
acid production source category and EPA considered all of these as 
candidates for BSER as we developed this proposed rule. We are not 
aware of any other established or emerging technologies that should be 
considered as candidates for BSER for this source category. SCR is used 
in 25 nitric acid production units in the U.S. NSCR is used in 14 
nitric acid process units in the U.S. HPI is used by one facility. All 
of these air pollution control technologies are effective in 
controlling NOX emissions. The average NOX 
emission reductions for these controls are: SCR--98%; NSCR--99%, HPI--
95% (for more information see Table 3.3 in the Economic Impact 
Analysis, which is available in the docket for this action).
    The approach used for determining BSER for nitric acid production 
units involved reviewing the emission test data submitted in response 
to the section 114 ICR, recently issued state permit data, and BACT 
determinations developed as part of NSR. In response to clarifications 
of the section 114 ICRs, industry provided additional data. In 
determining BSER we generally look at the controls and control 
performance of new sources. All recent nitric acid units have installed 
SCR as NOX controls. Recent BACT determinations have also 
identified SCR as BACT.
    A 2009 BACT determination has been incorporated into the facility 
permit limit for a nitric acid plant in American Falls, Idaho 
(Southeast Idaho Energy, LLC). For this analysis, SCR was determined as 
BACT, and 0.60 lb NOX/ton acid was determined as the BACT 
level of control. The Southeast Idaho Energy, LLC emission limit of 
0.60 lb NOX/ton acid will apply at all times during steady-
state operations (no standard applies during periods of startup or 
shutdown, and periods of malfunction). The compliance period was not 
specified.
    There are other recent BACT analyses at two other nitric acid 
production units. At Agrium in North Bend, Ohio, the BACT limit set in 
2009 is 0.61 lb NOX/ton acid on a 365-day rolling basis. At 
Agrium in Kennewick, Washington, the BACT limit set in 2008 is 0.60 lb 
NOX/ton acid in any continuous 12-month period (including 
startup, shutdown and malfunction).
    As part of our BSER analysis, we are proposing that the standard be 
stated as a rolling 30-day limit based on 30 consecutive operating days 
and that the limit be met at all times. We believe that the 0.50 lb 
NOX/ton acid standard, supported by existing source data and 
BACT determinations, is more stringent than any state BACT 
determination because 0.50 lb NOX/ton acid is lower than 
both 0.61 lb NOX/ton acid and 0.60 lb NOX/ton 
acid.
    Emissions test data were obtained from a number of sources 
including a section 114 ICR, trade associations, and the EPA Region 5. 
We received nine relative accuracy test audit (RATA) reports for 5 
nitric acid production units controlled with SCR, 6 RATA reports for 6 
nitric acid production units controlled with NSCR, and 1 RATA report 
for 1 nitric acid production unit controlled with HPI. These emissions 
tests are short term and are presented in the memorandum Summary of 
Test Data Received from Section 114 ICR, dated August 25, 2010 (updated 
December 17, 2010).
    In response to the section 114 request, nitric acid plants 
submitted NOX Continuous Emission Monitoring Systems (CEMS) 
data. These included 3 facilities using SCR and 2 facilities using 
NSCR.
    All emission test data (short term and CEMS data) indicate that 
lower emissions than the current Subpart G emission limit of 3.0 lb 
NOX/ton acid are being achieved, regardless of the type of 
NOX control being used. We decided to further analyze the 
long-term CEMS data because: (1) Long term data include periods of 
startup and shutdown, where emissions are shown to be larger than 
during steady state operating conditions, (2) long term data allow the 
seasonal impacts of temperature and humidity on NOX controls 
to be evenly distributed, as these factors often vary by the time of 
year and location, and (3) long term data include seasonal supply and 
demand cycles so that all factors that influence production are equally 
considered.
    We have concluded that SCR is BSER based on data showing lower 
emissions rates from SCR-controlled units. For more information, see 
Table 1 of this preamble and the related discussion. The fact that SCR 
is the only known NOX control technology being installed in 
new nitric acid production units, and that SCR has been determined to 
be BACT supports this conclusion. Further, SCR does not produce any 
secondary environmental impacts.
    The next step in the NSPS process is to establish an achievable 
standard using BSER. In assessing whether a standard is achievable, the 
EPA must account for routine operating variability

[[Page 63882]]

associated with performance of the system on which the standard is 
based. For each plant that submitted long-term CEMS data, these data 
cover the entire operating period including startups, shutdowns and 
malfunctions. To ensure that the new NOX standard is 
achievable by all properly designed and operated SCR units and covers 
all operating periods including startup and shutdowns, we analyzed the 
statistical variation by calculating the 99th percentile. When 
establishing an emissions limit (which is considered a never to exceed 
level of emissions), we use a 99th percentile based on statistical 
analyses. This approach accounts for short and long-term variability in 
emissions associated with all normal operating conditions, including 
startup and shutdown (see 72 FR 54878-79, September 27, 2007). This 
analysis is contained in the memorandum Statistical Evaluation of CEMS 
Data to Determine the NOX Emission Standard, dated July 18, 
2011.
    Using the long term CEMS data received through the ICR, the EPA 
determined that there were sufficient data to directly calculate the 
99th percentile for the best performing sources. The EPA determined 
that the CEMS represents long-term performance and accounts for long-
term and day-to-day variability.
    Long term CEMS data were obtained from 3 plants using SCR and 2 
plants using NSCR. The plant with HPI did not submit long term CEMS 
data. Following is a discussion of these data--the 3 plants with SCR 
are discussed first followed by the 2 plants with NSCR.
    The 99th percentile was directly calculated for these 5 best 
performing sources. A summary of the values is shown in Table 1.

                                                Table 1--CEMS Data--99th Percentile by Compliance Period
                                                            [lb of NOX/T of 100% nitric acid]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                3-hour     daily      7-day      30-day
               Compliance period                                Control                 15 minute    hourly    rolling     block     rolling    rolling
--------------------------------------------------------------------------------------------------------------------------------------------------------
PCS Geismar (Train 5).........................  SCR...................................       0.84       0.89       1.00       1.02       0.72       0.38
Agrium North Bend.............................  SCR...................................         NA       0.69       0.80       1.67       0.92       0.50
El Dorado Nitrogen............................  SCR...................................         NA       0.47       0.47       0.44       0.40       0.37
PCS Geismar (Train 4).........................  NSCR..................................       0.97       1.25       1.74       5.58       2.41       2.41
Agrium Sacramento.............................  NSCR..................................         NA       2.13         NA       1.60       1.31       1.29
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Agrium-North Bend plant submitted data spanning from January 
2010 through December 2010. The continuous data over the 12-month 
period show 0.50 lb NOX/ton acid as the 99th percentile for 
each 30-day rolling time period. The 30-day periods with high 
NOX emissions occurred during periods of startup and 
shutdown.
    The PCS Geismar plant submitted 15-minute average data for Train 5 
for 2007-2009. Train 5 is controlled with SCR. The period spanning 
January 2009 through December 2009 was analyzed. The continuous data 
from a 12-month period show 0.38 lb NOX/ton acid as the 99th 
percentile for each 30-day rolling time period.
    The El Dorado plant submitted hourly averages data for the period 
of July 2010-June 2011. The continuous data from a 12-month period show 
0.37 lb NOX/ton acid as the 99th percentile for each 30-day 
rolling time period.
    We also received 15-minute average data on NOX emissions 
for 2007-2009 from the PCS Geismar plant for Train 4, which is 
controlled with NSCR. The period spanning January 2009 through December 
2009 was analyzed to be consistent with Train 5 (controlled with SCR). 
The continuous data from a 12-month period show 2.41 lb NOX/
ton acid as the 99th percentile emissions level for a 30-day time 
period for train 4. The result of this analysis is limited due to the 
fact that the nitric acid train was operational for approximately 65 
days during the 12-month period. It is unlikely that this short time 
period is representative of the NSCR performance over time.
    The Agrium-Sacramento plant submitted data spanning from January 
2010 through December 2010. The continuous data over the 12-month 
period show 1.29 lb NOX/ton acid as the 99th percentile for 
a 30-day time period. The 30-day periods with high NOX 
emissions occurred during periods of startup and shutdown.
    As shown by Table 1, all units are meeting the current Subpart G 
NOX emission standard of 3.0 lb NOX/ton acid, 
regardless of the compliance period. We did not receive any long term 
data from the nitric acid train using HPI but the table shows that the 
NOX emissions from nitric acid trains using SCR are lower 
than nitric acid trains using NSCR. For example, reviewing the 99th 
percentile on a 30-day rolling basis, SCR data range from 0.38 to 0.50 
lb NOX/ton acid and NSCR data range from 1.29 to 2.41 lb 
NOX/ton acid. The lower emissions from SCR when compared to 
emissions from NSCR are the main reason that SCR has been determined as 
BSER.
    Whether NSCR can meet the levels achievable by SCR over a long 
term, is uncertain. The long term CEMS data from 2 NSCR plants indicate 
difficulty in meeting the 0.50 lb NOX/ton limit. However, we 
have monthly average data from 2 other facilities using NSCR. These 
plants with NSCR (Dyno Nobel-Deer Island and JR Simplot-Helm) submitted 
monthly block averages for a three year period. For 2009, the monthly 
block averages for both plants were very close and range from 7 to 17 
ppm or approximately 0.15-0.36 lb NOX/ton acid. As these 
data are not continuous but rather block monthly averages, comparison 
of these with the CEMS data discussed above is not possible. These data 
are presented to show that NSCR may be able to achieve the proposed 
emission limit. Also, the data presented in the memorandum Summary of 
Test Data Received from Section 114 ICR, dated August 25, 2010 (updated 
December 17, 2010) show that low short-term NOX emissions 
rates are possible when using NSCR and HPI.
    For the units controlled by SCR, we have not been able to identify 
any specific factors associated with the El Dorado Nitrogen and PCS 
Nitrogen Train 5 units that account for the lower emission levels 
compared to the Agrium-North Bend unit. Thus, based on the information 
currently in the record, we believe that emission levels of 
NOX are not only dependent on the use of SCR but also on 
process factors that result in variability that cannot be avoided 
through better or different design or through changes in operating 
practices.
    By selecting an emission limit based on the 99th percentile of 
emissions data from unit with BSER (which is SCR), we ensure that this 
limit reflects BSER but is also achievable during all periods by 
facilities that have BSER equivalent

[[Page 63883]]

controls. The available data for units with BSER, which were used to 
derive the proposed NOX emissions limit for new, modified 
and reconstructed units, are from existing nitric acid units that have 
been in operation for at least 10 years. Therefore, we believe that 
reconstructed, modified and new sources will be able to meet the 
proposed limit. We have no reason to believe that modified or 
reconstructed sources would not be able to meet this limit. Thus, we do 
not believe different standards are needed for modified or 
reconstructed sources.
    Moreover, in the past when companies chose to increase production 
or replace units, it is our understanding that they would build new 
production units rather than modify or reconstruct existing units. In 
fact, to our knowledge, no existing nitric acid production unit has 
been reconstructed or modified since Subpart G was promulgated. 
Therefore, we expect no reconstructions or modifications to occur for 
the nitric acid industry in the foreseeable future. Nevertheless, we 
request comment on any reconstructions or modifications to nitric acid 
production units that have taken place or information about any future 
plans to do such modifications or reconstructions. Also, we request 
data on the level of NOX emissions that these nitric acid 
units are able to achieve. If these emission levels are different than 
0.50 lb NOX/ton acid on a 30 day rolling basis, the 
commenter should include data to support the suggested emission level.
    Nevertheless, we expect that growth within the industry will be 
limited to newly constructed nitric acid production units. We believe 
that new nitric acid production units will be able to meet the proposed 
limit which takes into consideration routine operating variability as 
well as variation due to weather and periods of startups and shutdowns. 
The proposed emission limit of 0.50 lb NOX/ton acid is a 
never to exceed limit. We have not identified any specific process or 
technology that new nitric acid production units could employ to 
consistently meet an emission limit lower than 0.50 lb NOX/
ton acid. Therefore, we are proposing a limit of 0.50 lb 
NOX/ton acid for Subpart Ga.
    As part of our BSER analysis, we are proposing that the standard be 
stated as a rolling 30-day limit based on 30 consecutive operating days 
and that the limit be met at all times including periods of startup and 
shutdown. We believe that the 0.50 lb NOX/ton acid standard 
is supported by existing source data. The use of a 30-day period 
accounts for peaks in the data that occur during startup and shutdown. 
These periods occur on average about 3 to 4 hours per month and 
emissions during those periods are much higher than normal. Therefore, 
the 3 to 4 hour periods can affect average emissions beyond that 3 to 4 
hour period. Setting the standard with a 30-day compliance period meets 
the statutory requirement that the standard reflect the degree of 
emission limitation that is achievable through BSER, including during 
periods that include startup and shutdown.
    Although the proposed limit of 0.50 lb NOX/ton acid is 
based on the data for SCR, NSPS do not require the use and installation 
of a specific control device. We request additional long-term data (in 
units of the standard) to determine whether NSCR and HPI can achieve 
the proposed limit.
    For all of the reasons discussed above, we are proposing 0.50 lb 
NOX/ton acid as the revised standard for Nitric Acid Plants 
to be established in Subpart Ga.
    Periods of Startup or Shutdown. In proposing the standards in this 
rule, the EPA has taken into account startup and shutdown periods and, 
for the reasons explained below, has not proposed different standards 
for those periods.
    According to information received from industry in the section 114 
ICR, NOX emissions during startup and shutdown are higher 
than during normal operations. Due to the relatively short duration of 
startup and shutdown events (generally a few hours) compared to normal 
steady-state operations, we believe that a 30-day emission rate 
calculated based on 30 consecutive operating days will allow affected 
sources to meet the 0.50 lb NOX/ton acid at all times, 
including periods of startup and shutdown. We request comment on the 
use of a 30-day emission rate calculated based on 30 consecutive 
operating days. Further, we request comment on whether the standard 
should be set with a compliance period that is shorter (such as 24 
hours). For any comment suggesting a shorter time period, the comment 
should explain why that different period is appropriate and include 
data supporting the different compliance period and how startup and 
shutdown would be factored into a shorter term limit.
    If you believe that the EPA's conclusion is incorrect, or that the 
EPA has failed to consider any relevant information on this point, we 
encourage you to submit comments. In particular, we note that the 
general provisions in Part 60 require facilities to keep records of the 
occurrence and duration of any startup, shutdown or malfunction (40 CFR 
60.7(b)) and either report to the EPA any period of excess emissions 
that occurs during periods of startup, shutdown or malfunction (40 CFR 
60.7(c)(2)) or report that no excess emissions occurred (40 CFR 
60.7(c)(4)). Thus, any comments that contend that sources cannot meet 
the proposed standard during startup and shutdown periods should 
provide data and other specifics supporting their claim.
    Periods of Malfunction. Periods of startup, normal operations, and 
shutdown are all predictable and routine aspects of a source's 
operations. However, by contrast, malfunction is defined as a ``sudden, 
infrequent, and not reasonably preventable failure of air pollution 
control and monitoring equipment, process equipment or a process to 
operate in a normal or usual manner * * *'' (40 CFR 60.2). The EPA has 
determined that malfunctions should not be viewed as a distinct 
operating mode. Further, nothing in section 111 or in case law requires 
that the 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-by-case enforcement 
discretion, not for specification in advance by regulation.'')
    Further, it is reasonable to interpret section 111 as not requiring 
the EPA to account for malfunctions in setting emissions standards. For 
example, we note that section 111 provides that the EPA will set 
standards of performance which reflect the degree of emission 
limitation achievable through ``the application of the best system of 
emission reduction'' that the EPA determines is adequately 
demonstrated. Applying the concept of ``the application of the best 
system of emission reduction'' to periods during which a source is 
malfunctioning presents significant difficulties. The ``application of 
the best system of emission reduction'' is more appropriately 
understood to include operating in such a way as to avoid malfunctions 
of their units.
    Moreover, even if malfunctions were considered a distinct operating 
mode, we believe it would be impracticable to take malfunctions into 
account in setting CAA section 111 standards for the nitric acid 
production units that will

[[Page 63884]]

be covered in the proposed Subpart Ga. 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 the category. 
Moreover, malfunctions can vary in frequency, degree, and duration, 
further complicating standard setting.
    If the standard is stated as a 30-day emission rate calculated 
based on 30 consecutive operating days, or some other time period, we 
believe that sources will be able to operate their plants in compliance 
with the standard even if they experience malfunctions. Also, excess 
emissions from a nitric acid production unit during a malfunction can 
frequently be mitigated or avoided by shutting the plant down if a key 
component fails.
    In the event that a source fails to comply with the applicable CAA 
section 111 standards as a result of a malfunction event, the EPA would 
determine an appropriate response based on, among other things, the 
good faith efforts of the source to avoid malfunctions and to minimize 
emissions during malfunction periods, including preventative and 
corrective actions, as well as root cause analyses to ascertain and 
rectify excess emissions. The EPA would also consider whether the 
source's failure to comply with the CAA section 111 standard was, in 
fact, ``sudden, infrequent, not reasonably preventable'' and was not 
instead ``caused in part by poor maintenance or careless operation.'' 
40 CFR 60.2 (definition of malfunction).
    Finally, the EPA recognizes that even equipment that is properly 
designed and maintained can sometimes fail and that such failure can 
sometimes cause an exceedance of the relevant emission standard. (See, 
e.g., State Implementation Plans: Policy Regarding Excessive Emissions 
During Malfunctions, Startup, and Shutdown (Sept. 20, 1999); Policy on 
Excess Emissions During Startup, Shutdown, Maintenance, and 
Malfunctions (Feb. 15, 1983)). The EPA is therefore proposing to add an 
affirmative defense to civil penalties for exceedances of emission 
limits that are caused by malfunctions. See 40 CFR 60.71a (defining 
``affirmative defense'' to mean, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, regarding 
which the defendant has the burden of proof, and the merits of which 
are independently and objectively evaluated in a judicial or 
administrative proceeding). We also are proposing other regulatory 
provisions to specify the elements that are necessary to establish this 
affirmative defense; the source must prove by a preponderance of the 
evidence that it has met all of the elements set forth in 60.74a. (See 
40 CFR 22.24). The criteria ensure that the affirmative defense is 
available only where the event that causes an exceedance of the 
emission limit meets the narrow definition of malfunction in 40 CFR 
60.2 (sudden, infrequent, not reasonably preventable and not caused by 
poor maintenance and/or careless operation). For example, to 
successfully assert the affirmative defense, the source must prove by a 
preponderance of the evidence that excess emissions ``[w]ere caused by 
a sudden, infrequent, and unavoidable failure of air pollution control 
and monitoring equipment, process equipment, or a process to operate in 
a normal or usual manner * * *.'' The criteria also are designed to 
ensure that steps are taken to correct the malfunction, to minimize 
emissions in accordance with section 60.72a(b) and to prevent future 
malfunctions. For example, the source must prove by a preponderance of 
the evidence that ``[r]epairs were made as expeditiously as possible 
when the applicable emission limitations were being exceeded * * *'' 
and that ``[a]ll possible steps were taken to minimize the impact of 
the excess emissions on ambient air quality, the environment and human 
health * * *.'' In any judicial or administrative proceeding, the 
Administrator may challenge the assertion of the affirmative defense 
and, if the respondent has not met its burden of proving all of the 
requirements in the affirmative defense, appropriate penalties may be 
assessed in accordance with section 113 of the Clean Air Act (see also 
40 CFR part 22.77).

B. How is the EPA proposing to revise the testing and monitoring 
requirements?

    The current NSPS requires an initial performance test, the 
installation of a continuous NOX monitor and the recording 
of the daily production rate and hours of operations. We are proposing 
that the new Subpart Ga also require the installation, operation, and 
maintenance of an exhaust gas flow rate monitor. The capital cost of 
this monitor is $39,000 and the total annualized cost for this monitor 
for a new nitric acid production unit is estimated to be $15,000. The 
gas flow rate monitor provides data on the volume of gas emitted per 
unit of time, and this information combined with the data from the NOx 
monitor will result in more accurate measurements of the total 
NOX being emitted.
    Subpart G currently requires that owners/operators of nitric acid 
production units conduct an initial performance test to demonstrate 
initial compliance with the NOX emission limit. The initial 
performance test is based on three one-hour test runs for 
NOX using manual testing methods; specifically, Method 7 
(or, alternatively, Method 7A, 7B, 7C, or 7D) for NOX 
concentration, and Method 2 for volumetric flow rate (40 CFR 60, 
appendix A-4). The nitric acid production rate also must be determined 
during the initial performance test so that the emissions can be 
calculated in terms of the emissions limit, lb NOX per ton 
of acid produced (100 percent acid basis). The current rule does not 
provide specific procedures or criteria for determining the production 
rate or concentration.
    The current NSPS also requires the owner/operator to install, 
calibrate, maintain and operate a CEMS for measuring NOX 
concentration (40 CFR 60, appendix B, Performance Specification 2) to 
demonstrate continuing compliance. The owner/operator is required to 
establish a conversion factor expressed as lb NOX per ton 
acid produced per ppm NOX by comparing the CEMS data (ppm 
NOX) obtained during the performance test to the performance 
test results (lb NOX per ton of acid). The conversion factor 
is used to convert the CEMS concentration data into units of the 
emissions standard on an on-going basis. Subsequently, the owner/
operator must report periods of excess emissions defined as any 3-hour 
period during which the average nitric acid emissions (arithmetic 
average of three contiguous 1-hour periods) as measured by the CEMS 
exceed the emissions standard. The owner/operator must reestablish the 
conversion factor during any subsequent performance test.
    As part of an ongoing effort to improve compliance with various 
federal air emission regulations, we are proposing to require use of a 
continuous compliance determination method (CCDM) for NOX 
for nitric acid production units subject to Subpart Ga. The proposed 
CCDM is a continuous emissions rate monitoring system (CERMS) comprised 
of the NOX CEMS and a continuous exhaust gas flow rate 
monitoring system. The CERMS would be required to meet the requirements 
of performance specification 6 (40 CFR 60, appendix B).
    Performance Specification 6 (PS6) provides performance criteria for 
the flow rate monitoring system and stipulates the overall performance

[[Page 63885]]

criteria for the monitoring system in terms of pollutant emissions rate 
(i.e., lb NOX/hour). PS6 refers to the criteria of 
performance specification 2 (PS2) for the NOX CEMS. 
Extractive Fourier Transform Infrared Spectroscopy (FTIR) is capable of 
measuring NOX through the requirements in Performance 
Specification 15 (PS15). The proposed regulation allows use of the FTIR 
CEMS for determining compliance with the NOX emissions 
limit, in lieu of a monitor meeting the requirements of PS2, at the 
discretion of the owner/operator.
    This proposed rule would require the acid production rate to be 
determined on a daily basis. The daily NOX emissions rate 
measured by the CERMS (lb) and the daily production rate (tons of acid 
per day) are used to calculate the emissions rates in units of the 
standard, lbs NOX per ton of acid. This proposed rule would 
provide options for measuring the production rate and stipulates a 
minimum accuracy requirement for the measurement equipment. This 
proposed rule also requires that the concentration of the produced 
nitric acid be tested daily.
    We are proposing that nitric acid production units subject to 
Subpart Ga will not be subject to an opacity standard; consequently no 
test or monitoring method for opacity is included in this proposed 
rule. Using the nitric acid production rate and concentration of the 
nitric acid, the NOX concentration from the NOX 
CEMS, and the flow rate from the proposed flow monitor, the 
NOX emission rate in units of the standard (lb 
NOX/ton acid) can be determined at any point in time. 
Therefore, an opacity standard is not required as an additional method 
of demonstrating compliance with a NOX emission limit.

C. How is the EPA proposing to revise the notification, reporting, and 
recordkeeping requirements?

    The only recordkeeping requirements in the existing Subpart G are 
of daily production rate and hours of operation. The reporting 
requirements in the existing subpart G include reports of excess 
emissions and production rate. The frequency of reporting is 
semiannually as specified in 60.7(c).
    Reporting and recordkeeping requirements are being proposed as 
separate sections for Subpart Ga. Owners/operators subject to Subpart 
Ga must keep records of all performance tests and results; and dated 
daily records of hours of operation, nitric acid production rate, and 
nitric acid concentration; explanations for periods of noncompliance 
and corrective actions taken; span exceedances; and any modifications 
to CERMS which could affect the ability of the CERMS to comply with 
applicable performance specifications.
    Owners/operators must report all performance tests and results; 
dated daily records of NOX emission rates that exceed the 
standard, explanations for periods of noncompliance and corrective 
actions taken, span exceedances, and any modifications to CERMS which 
could affect the ability of the CERMS to comply with applicable 
performance specifications; and RATA (i.e., from the initial 
certification) and performance test data. The frequency of reporting 
for Subpart Ga is the same as for Subpart G.

V. Summary of Cost, Environmental, Energy, and Economic Impacts of 
These Proposed Standards

    In setting standards, the CAA requires us to consider alternative 
emission control approaches, taking into account the estimated costs as 
well as impacts on energy, solid waste, and other effects.

A. What are the impacts for new nitric acid production units?

    We are presenting estimates of the impacts for the proposed 40 CFR 
part 60, Subpart Ga that change the performance standards for new 
nitric acid production units. The cost, environmental, and economic 
impacts presented in this section are expressed as incremental 
differences between the impacts of nitric acid production units 
complying with the proposed Subpart Ga and the current NSPS 
requirements of Subpart G (i.e., baseline). The impacts are presented 
for future nitric acid production units that commence construction, 
reconstruction, or modification over the 5 years following promulgation 
of the revised NSPS. Costs are based on 2nd quarter of 2010. The 
analyses and the documents referenced below can be found in Docket ID 
No. EPA-HQ-OAR-2010-0750.
    In order to determine the incremental impacts of this proposed 
rule, we first estimated the number of new nitric acid production units 
that would become subject to regulation during the five year period 
after promulgation of subpart Ga. Based on existing nitric acid 
production units and estimated future growth rates, 6 new nitric acid 
production units are expected to be required to meet the nitric acid 
production demand in that five year period. For further detail on the 
methodology of these calculations, see memorandum Impacts of Nitric 
Acid NSPS Review--NOX, dated December 15, 2010, in Docket ID No. EPA-
HQ-OAR-2010-0750.
    The proposed Subpart Ga NOX emission limit reflects the 
use of control technologies currently in use by the industry and 
reflects an adjustment of the limit to more accurately reflect the 
performance of these control technologies. The current Subpart G NSPS 
NOX emissions limit can be achieved using a number of 
control techniques including NSCR, SCR and HPI. In many cases, the air 
pollution control systems used to meet the current NSPS could be used 
to meet the proposed revised NOX emission limit for future 
affected facilities. The potential nationwide emission reduction 
associated with lowering the NOX limit from 3.0 to 0.50 lb 
NOX/ton acid (100 percent acid basis) is estimated to be 
2,000 tons per year (tpy) NOX. This potential emission 
reduction may be overestimated because the majority of control systems 
installed on future affected facilities would likely result in 
emissions at or below the proposed emissions limit even in the absence 
of these proposed revisions.
    There are many existing nitric acid production units currently 
meeting 0.50 lb NOX/ton acid. Therefore, there is no 
increase in control costs of meeting the proposed emission limit of 
0.50 lb NOX/ton acid for new nitric acid production units 
compared to the control costs to comply with subpart Ga. The only costs 
incurred would be the installation of an air flow monitor, which is 
discussed below.
    There are differences in notification, testing, monitoring, 
reporting, and recordkeeping (MRR) between Subpart G and the new 
Subpart Ga that result in increased costs. We are proposing the use of 
a CERMS for monitoring compliance with Subpart Ga. The CERMS requires 
the installation of both a continuous NOX monitor and 
continuous exhaust gas flow rate monitor. The current NSPS (subpart G) 
requires only the installation of a continuous NOX monitor. 
The installation, operation, and maintenance of an exhaust gas flow 
rate monitor will increase the cost to nitric acid production units 
over what would be incurred to comply with subpart G. We estimate that 
the total increase in nationwide annual cost associated with this 
proposed monitoring revision is $90,110 for all six of the new 
production units projected to be built from 2011 to 2016.
    The estimated nationwide incremental 5-year NOX 
emissions reductions and cost impacts for these proposed revisions are 
summarized in Table 2 of this preamble. The methodology is detailed in 
the memorandum Impacts of Nitric Acid

[[Page 63886]]

NSPS Review--NOX, dated December 13, 2010 (updated July 27, 2011). The 
overall cost effectiveness is about $45 per ton of NOX 
removed.

   Table 2--National Incremental NOX Emission Reductions and Cost Impacts for New Nitric Acid Production Units
         Subject to Proposed Standards Under 40 CFR Part 60, Subpart Ga (Fifth Year After Promulgation)
----------------------------------------------------------------------------------------------------------------
                                                                              Potential annual
                                                            Total annualized    NOX emission     Potential cost
     Proposed revisions for future affected facilities      cost [$1,000/yr]     reductions       effectiveness
                                                                                [tons NOX/yr]      [$/ton NOX]
----------------------------------------------------------------------------------------------------------------
Revisions to NOX emission limit...........................                $0             2,000             $0.00
                                                           -----------------------------------------------------
Revisions to MRR requirements.............................                90  ................  ................
                                                           -----------------------------------------------------
    Total.................................................                90             2,000                45
----------------------------------------------------------------------------------------------------------------

B. What are the secondary impacts for new nitric acid production units?

    Indirect or secondary air quality impacts are impacts that would 
result from the increased electricity usage associated with the 
operation of control devices (i.e., increased secondary emissions of 
criteria pollutants from power plants). Energy impacts consist of the 
electricity and steam needed to operate control devices and other 
equipment that would be required under this proposed rule. In most 
cases, to comply with the current Subpart G NOX emission 
limit or this Subpart Ga NOX emission limit, the same 
control system (SCR, NSCR, or HPI) would have been installed. These 
proposed revisions only require the addition of exhaust gas flow 
monitors, which would result in minimal secondary air impacts or 
increase in overall energy demand.

C. What are the economic impacts for new nitric acid production units?

    We performed an economic impact analysis that estimates changes in 
prices and output for nitric acid production units nationally using the 
annual compliance costs estimated for this proposed rule. All estimates 
are for the fifth year after promulgation since this is the year for 
which the compliance cost impacts are estimated. The impacts to 
producers and consumers affected by this proposed rule are slightly 
higher product prices and slightly lower outputs. Prices for products 
(nitric acid) from affected plants should increase by less than 0.07 
percent for the fifth year. The output of nitric acid should decrease 
by less than 0.50 percent for the fifth year. Hence, the overall 
economic impact of this proposed NSPS should be low on the affected 
industries and their consumers. For more information, please refer to 
the Economic Impact Analysis for this proposed rulemaking in the public 
docket.

VI. Statutory and Executive Order Reviews

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

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a significant regulatory action because it could raise novel 
legal or policy issues. Accordingly, the EPA submitted this action to 
the Office of Management and Budget for review under Executive Order 
12866 and any changes made in response to OMB recommendations have been 
documented in the docket for this action.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by the EPA has 
been assigned the EPA ICR number [2445.01].
    These proposed revisions to the existing new source performance 
standards for nitric acid production units would add monitoring 
requirements for future affected facilities. We have revised the ICR 
for the existing rule.
    These proposed revisions to the new source performance standards 
for nitric acid production units for future affected facilities include 
a change to the emission limit and additional continuous monitoring 
requirements. The monitoring requirements include installing a 
continuous flow monitor and monitoring the nitric acid concentration. 
These monitoring requirements are in addition to a CEMS for 
NOX concentration which is required under the current 
subpart G. These requirements are based on specific requirements in 
Subpart Ga which are mandatory for all operators subject to NSPS. These 
recordkeeping and reporting requirements are specifically authorized by 
section 114 of the CAA (42 U.S.C. 7414). All information submitted to 
the EPA pursuant to the recordkeeping and reporting requirements for 
which a claim of confidentiality is made is safeguarded according to 
the EPA policies set forth in 40 CFR part 2, subpart B.
    The annual burden for this information collection averaged over the 
first 3 years of this ICR is estimated to total 968 labor-hours per 
year at a cost of $91,808 per year. The annualized capital costs are 
estimated at $19,288 per year. The annualized operation and maintenance 
(O&M) costs are $23,488. The total annualized capital and O&M costs are 
$42,776 per year. 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 the 
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, the EPA has established a public docket 
for this rule, which includes this ICR, under Docket ID number EPA-HQ-
OAR-2010-0750. Submit any comments related to the ICR to the EPA and 
OMB. See ADDRESSES section at the beginning of this notice for where to 
submit comments to the 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 
the EPA. Since OMB is required to make a decision concerning the ICR 
between 30 and 60 days after October 14, 2011, a comment to OMB is best 
assured of having its full effect if OMB receives it by November 14, 
2011. The final rule will respond to any OMB

[[Page 63887]]

or public comments on the information collection requirements contained 
in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) 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 
this rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business 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-for-
profit 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 
certification is based on the economic impact of this action to all 
affected small entities. Only four small entities may be impacted by 
this proposed rule. We estimate that all affected small entities will 
have annualized costs of less than 0.3 percent of their sales. We 
conclude that there is no significant economic impact on a substantial 
number of small entities (SISNOSE) for this rule.
    For more information on the small entity impacts associated with 
this proposed rule, please refer to the Economic Impact and Small 
Business Analyses in the public docket. Although this proposed rule 
would not have a significant economic impact on a substantial number of 
small entities, the EPA nonetheless tried to reduce the impact of this 
proposed rule on small entities. When developing the revised standards, 
the EPA took special steps to ensure that the burdens imposed on small 
entities were minimal. The EPA conducted several meetings with industry 
trade associations to discuss regulatory options and the corresponding 
burden on industry, such as recordkeeping and reporting. We continue to 
be interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This rule does not contain a federal mandate that may result in 
expenditures of $100 million or more for state, local, and tribal 
governments, in the aggregate, or to the private sector in any one 
year. This rule is not expected to impact state, local, or tribal 
governments. The nationwide annualized cost of this proposed rule for 
affected industrial sources is $90,010/yr. Thus, this rule is not 
subject to the requirements of sections 202 and 205 of the Unfunded 
Mandates Reform Act (UMRA).
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule will not 
apply to such governments and will not impose any obligations upon 
them.

E. Executive Order 13132, Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Nitric acid plants are privately 
owned companies and there will be no direct impact on states and other 
federal offices. Thus, Executive Order 13132 does not apply to this 
proposed rule. In the spirit of Executive Order 13132, and consistent 
with the EPA policy to promote communications between the EPA and state 
and local governments, the EPA specifically solicited 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). It will not have 
substantial direct effects on tribal governments, on the relationship 
between the federal government and Indian tribes, or on the 
distribution of power and responsibilities between the federal 
government and Indian tribes, as specified in Executive Order 13175. 
This proposed rule imposes requirements on owners and operators of 
nitric acid production units and not tribal governments. We do not know 
of any nitric acid production units owned or operated by Indian tribal 
governments. However, if there are any, the effect of this proposed 
rule on communities of tribal governments would not be unique or 
disproportionate to the effect on other communities. Thus, Executive 
Order 13175 does not apply to this action. The 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

    The EPA interprets Executive Order 13045 (62 FR 19885, April 22, 
1997) as applying to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive 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.

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

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113 (15 U.S.C. 272 note), 
directs the EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures, 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. NTTAA directs the EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable VCS.
    This proposed rulemaking involves technical standards. The EPA 
proposes to use: ASTM D6348-03, Standard Test Method for Determination 
of Gaseous Compounds by Extractive Direct Interface Fourier Transform 
Infrared (FTIR) Spectroscopy, and ASTM E1584, Standard Test Method for 
Assay of Nitric Acid, which have been incorporated by reference.
    The EPA welcomes comments on this aspect of the proposed rulemaking 
and specifically invites the public to identify

[[Page 63888]]

potentially applicable voluntary consensus standards and to explain why 
such standards should be used in this regulation.

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 United States.
    The 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 EPA has also determined that a proximity-based 
demographic study comparing populations in closest proximity to the 
regulated sources to the general population is not appropriate for this 
rulemaking due to lack of pollutants with localized effects.

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements, Incorporation by reference.

    Dated: September 30, 2011.
Lisa P. Jackson,
Administrator.
    For the reasons stated in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is amended as follows:

PART 60--[AMENDED]

    1. The authority citation for part 60 continues to read as follows:

    Authority: 42 U.S.C. 7401.

Subpart A--[Amended]

    2. Section 60.17 is amended by revising paragraph (a)(82) and 
adding paragraph (a)(93) to read as follows:

Sec.  60.17  Incorporations by reference.

* * * * *
    (a) * * *
    (82) ASTM D6348-03, Standard Test Method for Determination of 
Gaseous Compounds by Extractive Direct Interface Fourier Transform 
Infrared (FTIR) Spectroscopy, IBR approved for Sec.  60.73a(f)(2) of 
subpart Ga, table 7 of subpart IIII of this part, and table 2 of 
subpart JJJJ of this part.
* * * * *
    (93) ASTM E1584-00(2005)e1, Standard Test Method for Assay of 
Nitric Acid, IBR approved for Sec.  60.73a(b)(2) of subpart Ga.
* * * * *
    3. Section 60.70 is amended by revising paragraph (b) to read as 
follows:

Sec.  60.70  Applicability and designation of affected facility.

* * * * *
    (b) Any facility under paragraph (a) of this section that commences 
construction or modification after August 17, 1971, and on or before 
October 14, 2011 is subject to the requirements of Subpart G. Any 
facility that commences construction or modification after October 14, 
2011 is subject to Subpart Ga.
* * * * *
    4. Add Subpart Ga to read as follows:

Subpart Ga--Standards of Performance for Nitric Acid Plants for 
Which Construction, Reconstruction, or Modification Commenced After 
October 14, 2011

Sec.
60.70a Applicability and designation of affected facility.
60.71a Definitions.
60.72a Standards.
60.73a Emissions testing and monitoring.
60.74a Affirmative Defense for Exceedance of Emission Limit During 
Malfunction.
60.75a Calculations.
60.76a Recordkeeping.
60.77a Reporting.

Subpart Ga--Standards of Performance for Nitric Acid Plants for 
Which Construction, Reconstruction, or Modification Commenced After 
October 14, 2011

Sec.  60.70a  Applicability and designation of affected facility.

    (a) The provisions of this subpart are applicable to each nitric 
acid production unit, which is the affected facility.
    (b) This subpart applies to any nitric acid production unit that 
commences construction or modification on or after October 14, 2011.

Sec.  60.71a  Definitions.

    As used in this subpart, all terms not defined herein shall have 
the meaning given them in the Act and in subpart A of this part.
    (a) Affirmative defense means, 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.
    (b) Nitric acid production unit means any facility producing weak 
nitric acid by either the pressure or atmospheric pressure process.
    (c) Operating day means a 24-hour period beginning at 12:00 a.m. 
during which the nitric acid production unit at any time during this 
period.
    (d) Weak nitric acid means acid which is 30 to 70 percent in 
strength.

Sec.  60.72a  Standards.

    (a) Nitrogen oxides. On and after the date on which the performance 
test required to be conducted by Sec.  60.73a(a) is completed, you may 
not discharge into the atmosphere from any affected facility any gases 
which contain NOX, expressed as NO2, in excess of 
0.50 pounds (lb) per ton of nitric acid produced, as a 30-day emission 
rate calculated based on 30 consecutive operating days, the production 
being expressed as 100 percent nitric acid. The emission standard 
applies at all times.
    (b) General Duty to minimize emissions. At all times, the owner or 
operator 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. 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.

Sec.  60.73a  Emissions testing and monitoring.

    (a) Nitric acid production monitoring.
    (1) For any affected facility, you must determine the daily nitric 
acid production parameters (production rate and concentration) by 
installing, calibrating, maintaining, and operating a permanent 
monitoring system (e.g., weigh scale, volume flow meter, mass flow 
meter, tank volume) to measure

[[Page 63889]]

and record the weight rates of nitric acid produced in tons per day. 
You must verify that each component of the monitoring system has an 
accuracy and precision of no more than 5 percent of full 
scale.
    (2) You may analyze product concentration via titration or by 
determining the temperature and specific gravity of the nitric acid. 
You may also use ASTM E1584-00(2005)e1 (incorporated by reference, see 
Sec.  60.17), for determining the concentration of nitric acid in 
percent. You must determine product concentration daily.
    (3) For any affected facility, you must use the acid concentration 
to express the daily nitric acid production as 100 percent nitric acid.
    (4) For any affected facility, you must record the daily nitric 
acid production, expressed as 100 percent nitric acid, and the hours of 
operation.
    (b) Nitrogen oxides continuous emissions monitoring system. (1) You 
must install, calibrate, maintain, and operate a continuous emission 
rate monitoring system (CERMS) for measuring and recording the mass 
emissions of NOX in accordance with the provisions of 60.13 
and Performance Specifications 2 and 6 of appendix B of this part. The 
CERMS must consist of equipment for measuring NOX 
concentration and stack gas volumetric flow rate monitoring equipment 
for measuring the volumetric flow rate and for calculating and 
reporting hourly and daily NOX mass emissions rates in units 
of lb/hour and lb NOX/ton of 100% nitric acid.
    (2) As applicable, use a span value, as defined in Performance 
Specification 2 Sec.  3.11, for all NOX concentration 
monitoring equipment equal to 125 percent of the maximum estimated 
NOX emission concentration.
    (3) You must conduct performance evaluations of the NOX 
CERMS according to the requirements in Sec.  60.13(c) and Performance 
Specifications 2 and 6 of appendix B of this part. For conducting the 
relative accuracy evaluations, per Sec.  8.4 of the Performance 
Specification 2, use either EPA Reference Method 7, 7A, 7C, 7D, or 7E 
of appendix A-4 of this part; EPA Reference Method 320 of appendix A of 
part 63 of this chapter; or ASTM D6348-03 (incorporated by reference, 
see Sec.  60.17).
    (4) If you use EPA Reference Method 7E of Appendix A-4 of this 
part, you must mitigate loss of NO2 in water according to 
the requirements in paragraphs (a)(4)(i), (ii), or (iii) of this 
section and verify performance by conducting the system bias checks 
required in Sec.  8 of EPA Reference Method 7E of appendix A-4 of this 
part according to (b)(4)(iv) of this section, or follow the dynamic 
spike procedure according to paragraph (b)(4)(v) of this section.
    (i) For a wet-basis measurement system, you must measure and report 
temperature of sample line and components (up to analyzer inlet) to 
demonstrate that the temperatures remain above the sample gas dew point 
at all times during the sampling.
    (ii) You may use a dilution probe to reduce the dew point of the 
sample gas.
    (iii) You may use a refrigerated-type condenser or similar device 
(e.g., permeation dryer) to remove condensate continuously from sample 
gas while maintaining minimal contact between condensate and sample 
gas.
    (iv) If your analyzer measures nitric oxide (NO) and nitrogen 
dioxide (NO2) separately, you must use both NO and 
NO2 calibration gases. Otherwise, you must substitute 
NO2 calibration gas for NO calibration gas in the 
performance of system bias checks.
    (v) You must conduct dynamic spiking according to Sec.  16.1 in EPA 
Reference Method 7E of appendix A-4 of this part using NO2 
as the spike gas.
    (5) You must use stack gas flow rate measurement equipment with a 
full scale output of at least 125 percent of the maximum expected 
exhaust volumetric flow rate (see Sec.  8 of Performance Specification 
6, Appendix B, of this part).
    (d) CERMS Quality Assurance and Quality Control.
    (1) The CERMS must comply with the quality assurance requirements 
in Procedure 1 of Appendix F of this part. You must use cylinder gas 
audits to fulfill the quarterly auditing requirement at Appendix F, 
Procedure 1, Sec.  5.1 of this part only on the NOX 
concentration measurement equipment. You must conduct relative accuracy 
testing to provide for calculating the relative accuracy for RATA and 
RAA determinations in units of lb/hour and lb NOX/ton nitric 
acid.
    (2) You must determine daily calibration drift assessments 
separately for each analyzer in terms of its specific measurement. You 
must perform the daily assessments in accordance with the procedures 
specified in Sec. Sec.  8.1 and 13.1 of Performance Specification 6 of 
appendix B of this part.
    (3) Should you apply an FTIR CEMS meeting the requirements of 
Performance Specification 15, Appendix B of this part, you must replace 
the Relative Accuracy Test Audit requirements of Procedure 1 of 
appendix F of this part with the validation requirements and criteria 
of Sec. Sec.  11.1.1 and 12.0 of Performance Specification 15 of 
appendix B of this part.
    (e) For each CERMS, including NOX concentration 
measurement, volumetric flow rate measurement, and nitric acid 
production measurement equipment, you must meet the requirements in 
paragraphs (e)(1) through (3) of this section.
    (1) You must operate the CERMS and collect data at all required 
intervals at all times the affected source is operating except for 
periods of monitoring system malfunctions or out-of-control periods as 
defined in Appendix F, Sec. Sec.  4 and 5, repairs associated with 
monitoring system malfunctions or out-of-control periods, and required 
monitoring system quality assurance or quality control activities 
including, as applicable, calibration checks and required zero and span 
adjustments. A monitoring system malfunction is any sudden, infrequent, 
not reasonably preventable failure of the monitoring system to provide 
valid data. Monitoring system failures that are caused in part by poor 
maintenance or careless operation are not malfunctions. You are 
required to affect monitoring system repairs in response to monitoring 
system malfunctions or out-of-control periods, and to return the 
monitoring system to operation as expeditiously as practicable.
    (2) You may not use data recorded during monitoring system 
malfunctions or out-of-control periods, repairs associated with 
monitoring system malfunctions or out-of-control periods, or required 
monitoring system quality assurance or control activities in 
calculations used to report emissions or operating levels. You must use 
all the data collected during all other periods in calculating 
emissions and the status of compliance with the applicable emissions 
limit in accordance with Sec.  60.72a(a).
    (3) Except for periods of monitoring system malfunctions or out-of-
control periods, repairs associated with monitoring system malfunctions 
or out-of-control periods, and required monitoring system quality 
assurance or quality control activities including, as applicable, 
calibration checks and required zero and span adjustments, failure to 
collect required data is a violation of the monitoring requirements.
    (f) Initial Performance Testing. You, as the owner or operator of a 
new unit, must conduct an initial performance test to demonstrate 
compliance with the NOX emissions limit under Sec.  
60.72a(a) beginning in the calendar month following initial 
certification of the NOX

[[Page 63890]]

and flow rate monitoring CEMS. The initial performance test consists of 
collection of hourly NOX average concentration, mass flow 
rate (SCFH) recorded with the certified NOX concentration 
and flow rate CEMS and the corresponding acid generation (tons) data 
for all of the hours of operation for the first 30 days beginning on 
the first day of the first month following completion of the CEMS 
installation and certification as described above. You must assure that 
the CERMS meets all of the data quality assurance requirements as per 
Sec.  60.13 and appendix F, procedure 1 of this part and you must use 
the data from the CERMS for this compliance determination.

Sec.  60.74a  Affirmative Defense for Exceedance of Emission Limit 
During Malfunction.

    In response to an action to enforce the standards set forth in 
paragraph Sec.  60.72a, you may assert an affirmative defense to a 
claim for civil penalties for exceedances of such standards that are 
caused by malfunction, as defined at 40 CFR 60.2. Appropriate penalties 
may be assessed, however, if you fail to meet your burden of proving 
all of the requirements in the affirmative defense. The affirmative 
defense shall not be available for claims for injunctive relief.
    (a) To establish the affirmative defense in any action to enforce 
such a limit, you must timely meet the notification requirements in 
paragraph (b) of this section, and must prove by a preponderance of 
evidence that:
    (1) The excess emissions:
    (i) Were caused by a sudden, infrequent, and unavoidable failure of 
air pollution control and monitoring equipment, process equipment, or a 
process to operate in a normal or usual manner, and
    (ii) Could not have been prevented through careful planning, proper 
design or better operation and maintenance practices; and
    (iii) Did not stem from any activity or event that could have been 
foreseen and avoided, or planned for; and
    (iv) Were not part of a recurring pattern indicative of inadequate 
design, operation, or maintenance; and
    (2) Repairs were made as expeditiously as possible when the 
applicable emission limitations were being exceeded. Off-shift and 
overtime labor were used, to the extent practicable to make these 
repairs; and
    (3) The frequency, amount and duration of the excess emissions 
(including any bypass) were minimized to the maximum extent practicable 
during periods of such emissions; and
    (4) If the excess emissions resulted from a bypass of control 
equipment or a process, then the bypass was unavoidable to prevent loss 
of life, personal injury, or severe property damage; and
    (5) All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality, the environment and human 
health; and
    (6) All emissions monitoring and control systems were kept in 
operation if at all possible consistent with safety and good air 
pollution control practices; and
    (7) All of the actions in response to the excess emissions were 
documented by properly signed, contemporaneous operating logs; and
    (8) At all times, the facility was operated in a manner consistent 
with good practices for minimizing emissions; and
    (9) A written root cause analysis has been prepared, the purpose of 
which is to determine, correct, and eliminate the primary causes of the 
malfunction and the excess emissions resulting from the malfunction 
event at issue. The analysis shall also specify, using best monitoring 
methods and engineering judgment, the amount of excess emissions that 
were the result of the malfunction.
    (b) Notification. The owner or operator of the facility 
experiencing an exceedance of its emission limit(s) during a 
malfunction shall notify the Administrator by telephone or facsimile 
(FAX) transmission as soon as possible, but no later than two business 
days after the initial occurrence of the malfunction, if it wishes to 
avail itself of an affirmative defense to civil penalties for that 
malfunction. The owner or operator seeking to assert an affirmative 
defense shall also submit a written report to the Administrator within 
45 days of the initial occurrence of the exceedance of the standard in 
Sec.  60.72a to demonstrate, with all necessary supporting 
documentation, that it has met the requirements set forth in paragraph 
(a) of this section. The owner or operator may seek an extension of 
this deadline for up to 30 additional days by submitting a written 
request to the Administrator before the expiration of the 45 day 
period. Until a request for an extension has been approved by the 
Administrator, the owner or operator is subject to the requirement to 
submit such report within 45 days of the initial occurrence of the 
exceedance.

Sec.  60.75a  Calculations.

    (a) The 30-day rolling NOX emission rate is calculated 
as the sum of all daily NOX mass emissions recorded by the 
CERMS for 30 consecutive operating days divided by the sum of nitric 
acid production for these 30 consecutive operating days. Calculate and 
record the daily mass emissions of NOX according to the 
procedures in paragraphs (a)(1) through (4) of this section.
    (1) You must calculate the daily mass emissions according to 
Equation 1:
[GRAPHIC] [TIFF OMITTED] TP14OC11.000

Where:

Md = daily mass emissions of NOX as 
NO2, lb NOX.
Ci = concentration of NOX for hour i, lb/
standard cubic foot (scf).
Qi = volumetric flow rate of effluent gas for hour i, 
scf/hour.
n = number of operating hours in the operating day.

    (2) For any operating day where monitoring data are only available 
for part of the hours where nitric acid is produced during that day due 
to CERMS malfunctions, out-of-control periods, or repairs associated 
with monitoring system malfunctions or out-of-control periods, you must 
calculate Md for the periods where monitoring data are 
available using Equation 1 in (a)(1) above, and then adjust upwards 
overall operating hours on a pro rata basis.
    (3) You must ensure appropriate corrections for moisture are made 
when measuring flow rates.
    (4) Following each calendar day on which the affected facility was 
operated, you must calculate the 30-day NOX emission rate 
according to Equation 2:
[GRAPHIC] [TIFF OMITTED] TP14OC11.001

Where:

E30-day = emission rate of NOX as 
NO2 calculated based on 30 consecutive operating days, lb 
NOX/ton of 100 percent nitric acid.
Md = daily mass emissions of NOX as 
NO2 for operating day d, lb NOX
Pd = daily nitric acid production for operating day d, 
tons of 100 percent nitric acid.
m = number of days in the 30-day compliance period for which CERMS 
data is available.

Sec.  60.76a  Recordkeeping.

    (a) For the NOX emissions rate, you must keep records of 
the performance test data from the initial and subsequent performance 
tests and from the performance evaluation of the continuous monitors.

[[Page 63891]]

    (b) You must maintain records of the following information for each 
30 day period:
    (1) Hours of operation.
    (2) Production rate of nitric acid, expressed as 100 percent nitric 
acid.
    (3) NOX mass emissions.
    (c) You must maintain records of the following time periods:
    (1) Times when you were not in compliance with the emissions 
standards.
    (2) Times when the pollutant concentration exceeded full span of 
the NOX pollutant monitoring equipment.
    (3) Times when the volumetric flow rate exceeded the high value of 
the volumetric flow rate monitoring equipment.
    (d) You must maintain records of the reasons for any periods of 
noncompliance and description of corrective actions taken.
    (e) You must maintain records of any modifications to CERMS which 
could affect the ability of the CERMS to comply with applicable 
performance specifications.
    (f) For each malfunction, you must maintain records of the 
following information:
    (1) Records of the occurrence and duration of each malfunction of 
operation (i.e., process equipment) or the air pollution control and 
monitoring equipment.
    (2) Records of actions taken during periods of malfunction to 
minimize emissions in accordance with section 60.72a(b), including 
corrective actions to restore malfunctioning process and air pollution 
control and monitoring equipment to its normal or usual manner of 
operation.

Sec.  60.77a  Reporting.

    (a) The performance test data from the initial and subsequent 
performance tests and from the performance evaluations of the 
continuous monitors must be submitted to the Administrator at the 
appropriate address as shown in 40 CFR 60.4.
    (b) The following information must be reported to the Administrator 
for each 30 day period where you were not in compliance with the 
emissions standard:
    (1) Time period.
    (2) NOX emission rates (lb/ton of acid produced).
    (3) Reasons for noncompliance with the emissions standard; and 
description of corrective actions taken.
    (c) You must also report the following whenever they occur:
    (1) Times when the pollutant concentration exceeded full span of 
the NOX pollutant monitoring equipment.
    (2) Times when the volumetric flow rate exceeded the high value of 
the volumetric flow rate monitoring equipment.
    (d) You must report any modifications to CERMS which could affect 
the ability of the CERMS to comply with applicable performance 
specifications.
    (e) As of December 31, 2011 and within 60 days after the date of 
completing each performance evaluation or test required under this 
subpart, you must submit the relative accuracy test audit data and 
performance test data by successfully submitting the data 
electronically to EPA's Central Data Exchange (CDX) by using the 
Electronic Reporting Tool (ERT) (see http://www.epa.gov/ttn/chief/ert/ert_tool.html/).
    (f) If a malfunction occurred during the reporting period, you must 
submit a report that contains the following:
    (1) The number, duration, and a brief description for each type of 
malfunction which occurred during the reporting period and which caused 
or may have caused any applicable emission limitation to be exceeded.
    (2) A description of actions taken by an owner or operator during a 
malfunction of an affected source to minimize emissions in accordance 
with 60.72a(b), including actions taken to correct a malfunction.
[FR Doc. 2011-26089 Filed 10-13-11; 8:45 am]
BILLING CODE 6560-50-P
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