Petition of the Association of Battery Recyclers for Administrative 

Reconsideration of the National Emission Standards for Hazardous 

Air Pollutants: Secondary Lead Smelting, 

77 Fed. Reg. 556 (Jan. 5, 2012)

Docket EPA-HQ-OAR-2011-0344

March 5, 2012

Submitted By:

BAKER HOSTETLER

Robert N. Steinwurtzel

Mark W. DeLaquil

Washington Square

Suite 1100

1050 Connecticut Ave. N.W.

Washington, D.C. 20036

(202) 861-1500 (phone)

(202) 861-1783 (facsimile)

rsteinwurtzel@bakerlaw.com

mdelaquil@bakerlaw.com
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I. Introduction

The Association of Battery Recyclers, Inc. (“ABR” or “the Association”) 

requests that the U.S. Environmental Protection Agency (“EPA”) reconsider certain 

aspects of its National Emission Standards for Hazardous Air Pollutants: Secondary 

Lead Smelting, 77 Fed. Reg. 556 (Jan. 5, 2012) (the “Secondary Lead Rule” or the 

“Rule”). ABR is a non-profit trade association of companies that are involved in 

smelting and refining lead-acid batteries and other lead bearing materials. Members of 

the ABR include companies that own and/or operate battery manufacturers, lead 

chemical manufacturers, secondary lead smelters, a primary lead smelter, lead 

fabricators, and consultants and vendors to the lead recycling industry. The lead 

recycling industry members of the ABR collectively represent virtually all of the lead 

recycling capacity currently available in the United States. This petition is without 

prejudice to the legal claims that ABR is asserting in its pending petition for judicial 

review of the Secondary Lead Rule. See Association of Battery Recyclers, Inc. v. U.S. 

Environmental Protection Agency, No. 12-1129 (D.C. Cir. filed Mar. 5, 2012).

Under Clean Air Act § 307(d)(7)(B), the Administrator is required to convene a 

proceeding to reconsider a final rule upon a timely petition demonstrating that it was 

impracticable to raise an objection that is of central relevance to the outcome of the 

rule during the period for public comment. EPA has also asserted the inherent 

authority to reconsider its rules in appropriate circumstances. See, e.g., 75 Fed. Reg. 

82,430, 82,436 (Dec. 30, 2010). EPA should reconsider the following aspects of the 
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Secondary Lead Rule under both of these criteria:

 EPA should reconsider its erroneous toxic equivalency factors for

dioxins and furans. The toxic equivalency factors listed in the Secondary 

Lead Rule do not refer to any recognized factors of which the ABR is 

aware and are inconsistent with EPA’s statements about the factors in 

the administrative record. These erroneous toxic equivalency factors 

may create compliance problems for ABR members, particularly because 

they differ from state requirements. 

 EPA should clarify that the NESHAP General Provisions that are 

incorporated into the Rule require that compliance with the differential 

pressure monitoring requirements for total enclosures is determined on 

an hourly averaging basis. Although the Secondary Lead Rule states that 

the differential pressure requirement applies continuously, such issues as 

atmospheric conditions preclude the totally enclosed secondary lead 

smelters on which EPA based its design standard from maintaining a 

negative pressure of 0.013 mm of mercury at all times. EPA should 

address this issue by written confirmation that the Secondary Lead Rule 

includes an hourly averaging time for compliance or by revising the Rule 

to specify expressly an hourly averaging time for continuous differential 

pressure monitoring data. 

II. Points For Reconsideration

A. EPA Should Reconsider The Toxic Equivalency Factors For 

Dioxins And Furans

EPA should reconsider the erroneous toxic equivalency factors for dioxins and 

furans that are included in the Secondary Lead Rule. 

In its proposal, EPA stated that toxic equivalency quotient is “calculated using 

the toxic equivalency factors [] outlined by the World Health Organization (WHO) in 

2005.” 76 Fed. Reg. at 29,032, 29,051 (May 19, 2011) (“Proposed Secondary Lead 

Rule”). In its comments on the Proposed Secondary Lead Rule, ABR requested that 

EPA clarify “the regulatory language proposed to be codified at 40 C.F.R. § 
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63.547(e)(2) by including a specific reference to the WHO 2005 Toxic Equivalency 

Factors as presented at http://www.epa.gov/raf/hhtefguidance/.” ABR Comments, 

p. 40 (Att. A). The Response to Comments document indicated that EPA agreed 

with ABR’s comment by stating that the toxic equivalency factors table included in 

the Secondary Lead Rule is intended specifically to refer “to the 2005 Toxic 

Equivalency Factors [] from the World Health Organization.” See Response to 

Comments, p. 41 (Att. B); 77 Fed. Reg. at 590-91 tbl. 3. 

But the toxic equivalency factors set forth in the Secondary Lead Rule do not, 

in fact, accurately state the World Health Organization’s 2005 toxic equivalency 

factors. The Secondary Lead Rule includes the following incorrect dioxin/furan 

congeners:

Dioxin/Furan Congener Toxic Equivalency Factor

1, 2, 3, 7, 8-pentachlorinated dibenzo-p-dioxin 0.5

octachlorinated dibenzo-p-dioxin 0.001

2, 3, 4, 7, 8-pentachlorinated dibenzofuran 0.05

1, 2, 3, 7, 8-pentachlorinated dibenzofuran 0.5
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The correct WHO toxic equivalency factors for these dioxin/furan congeners are 

shown in the following table:

Dioxin/Furan Congener Toxic Equivalency Factor

1, 2, 3, 7, 8-pentachlorinated dibenzo-p-dioxin 1

octachlorinated dibenzo-p-dioxin 0.0003

2, 3, 4, 7, 8-pentachlorinated dibenzofuran 0.3

1, 2, 3, 7, 8-pentachlorinated dibenzofuran 0.03 

In addition, the Secondary Lead Rule’s toxic equivalency factors table omits the 

following congeners listed in the WHO’s toxic equivalency factors entirely:

Dioxin/Furan Congener Toxic Equivalency Factor

2,3,4,6,7,8-hexachlorinated dibenzofuran 0.1

1,2,3,4,6,7,8-heptachlorinated dibenzofuran 0.01

1,2,3,4,7,8,9-dibenzofuran 0.01

octachlorinated dibenzofuran 0.0003

U.S. Environmental Protection Agency, Recommended Toxic Equivalence Factors (TEFs) 

for Human Health Risk Assessments of 2, 3, 7, 8-Tetrachlorodiibzenzo-p-dioxin and Dioxin-like 

Compounds, pp. 13-14 (Dec. 2010) (Att. C). 

Given EPA’s statements in the Proposed Secondary Lead Rule that the Agency 

intended to use the WHO’s 2005 toxic equivalency factors for dioxins and furans, and 

its statement in the Response to Comments reaffirming this point, EPA should 
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correct the factors. These corrections will ensure that the Secondary Lead Rule 

comports with EPA’s expressed intent and will prevent ABR’s members from being 

subject to conflicting toxic equivalency factors in determining compliance with federal 

and state dioxin and furan limitations. 

Although the procedural rulemaking requirements of Clean Air Act § 307(d) 

apply generally to the Secondary Lead Rule, see 42 U.S.C. § 7607(d)(1)(C), that 

provision provides that it “shall not apply in the case of any rule or circumstance 

referred to in subparagraphs (A) or (B) of subsection 553(b) of title 5,” 42 U.S.C. § 

7607(d)(1). Given this clear error in the specified toxic equivalency factors, EPA 

should find that good cause exists for dispensing with the procedural requirements of 

Clean Air Act § 307(d) because public comment is unnecessary for such a technical 

correction. Thus, EPA should substitute the correct toxic equivalency factors by a 

direct final rule. See 5 U.S.C. § 553(b)(3)(B). 

B. EPA Should Clarify Or Reconsider The Differential Pressure 

Monitoring Requirements For Total Enclosures

EPA should either clarify that the Secondary Lead Rule’s differential pressure 

monitoring requirements for total enclosures provided for monitored data to be 

averaged on an hourly basis, or should reconsider the Rule to add an explicit hourly 

averaging requirement.

In the Proposed Secondary Lead Rule, EPA indicated that secondary lead 

smelters would have two options for fugitive dust control. The first option was to 
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totally enclose all process fugitive emission sources. See 76 Fed. Reg. at 29,072 

(proposed to be codified at 40 C.F.R. § 63.544(b)). For these total enclosures, EPA 

proposed to require a negative pressure of at least 0.02 mm of Hg and an in-draft 

velocity at all openings of greater than or equal to 300 feet per minute. See 76 Fed. 

Reg. at 29,072 (proposed to be codified at 40 C.F.R. §§ 63.544(b)(1), -(b)(2)). The 

second proposed option coupled partial enclosure of process fugitive emission 

sources with ambient air monitoring. See 76 Fed. Reg. at 29,073 (proposed to be 

codified at 40 C.F.R. § 63.544(d)). Sources opting to comply via the partial enclosure 

method would have been required to meet face velocity requirements on localized 

source capture hoods, but not differential pressure or in-draft velocity requirements 

on the partial enclosures themselves. See 76 Fed. Reg. at 29,073 (proposed to be 

codified at 40 C.F.R. § 63.544(d)). 

ABR offered comments in support of allowing sources the choice whether to 

totally or partially enclose fugitive emission sources. See ABR Comments, pp. 51-53 

(Att. A). With regard to the total enclosure option, ABR commented that the building 

pressure differential and in-draft velocity requirements were redundant. See ABR 

Comments, pp. 52 (Att. A). ABR also made lengthy comments on legal and technical 

issues related to the partial enclosure option, which it expected many or all of its 

members to employ. See ABR Comments, pp. 60-67 (Att. A). 

Ultimately, EPA declined to finalize the alternative design standard partial 

enclosure compliance option in the Secondary Lead Rule, instead requiring that all 
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secondary lead smelters totally enclose process fugitive emission sources. See 77 Fed. 

Reg. at 566. EPA changed the total enclosure requirements from the proposal, 

however, by eliminating the in-draft velocity requirement and by altering the 

“differential pressure requirement from 0.02 mm of mercury to 0.013 mm of mercury 

to be consistent with the EPA Method 204’s criteria for verification of a permanent 

or temporary enclosure.” Response to Comments, p. 124 (Att. B). 

While the Secondary Lead Rule provides that the building differential pressure 

requirement applies continuously, it does not expressly include an averaging period 

for the collected differential pressure monitoring data. See 77 Fed. Reg. at 586, 587 

(requirements codified at 40 C.F.R. §§ 63.548(k) and 63.550(c)(6)). The general 

requirements incorporated into the Rule suggest, however, that sources must keep 

records in 15-minute averages when monitoring this differential pressure parameter 

continuously. See 77 Fed. Reg. at 590 (incorporating general requirements of 40 

C.F.R. § 63.10(b)(2)(vii) into 40 C.F.R. Subpart X); 40 C.F.R. § 63.10(b)(2)(vii) 

(requiring that sources maintain “[a]ll required measurements needed to demonstrate 

compliance with a relevant standard (including, but not limited to, 15-minute averages 

of CMS data . . . .”). 

The Secondary Lead Rule is similarly silent on the averaging period used to 

determine compliance, but suggests that while records of 15-minute average data must 

be kept, this raw data should be reduced to hourly periods for determining 

compliance. The Secondary Lead Rule incorporates the general requirements of 40 
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C.F.R. § 63.8(g). See 77 Fed. Reg. at 590. These requirements include a provision that 

“the owner or operator of each [continuous monitor] must reduce the monitoring 

data as specified in paragraphs (g)(1) through (5) of this section.” 40 C.F.R. § 

63.8(g)(1). Among these specifications in 40 C.F.R. § 63.8(g) are a requirement that 

“data from CEMS for measurement other than opacity, unless otherwise specified in 

the relevant standard, shall be reduced to 1-hour averages.” 40 C.F.R. § 63.8(g)(2). 

While this provision is silent on continuous parameter monitoring systems like 

differential pressure monitors, the term “CEMS” in this provision should be 

construed to include differential pressure monitors in order to ensure that 40 C.F.R. § 

63.8(g) can fulfill the intended purpose of its inclusion in Subpart X, by providing for 

the reduction of monitoring data for the secondary lead smelting industry. 

Moreover, the administrative record does not support a continuous pressure 

differential monitoring requirement unless it determines compliance based on a 

reasonable averaging period, such as an hour. Due to the changes that EPA made to 

the final Secondary Lead Rule that eliminated its members’ ability to comply through 

alternatives to total enclosures and changed the Agency’s approach to assessing the 

total enclosures’ performance, it was impracticable during the comment period for 

ABR to have fully evaluated requirements applicable to the final Secondary Lead 

Rule’s total enclosure requirement. Having had the opportunity to analyze the final 

Secondary Lead Rule, ABR has determined that a continuous differential pressure 

requirement is not indicative of the performance of these devices in the industry 
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unless compliance is determined based on a reasonable averaging period. 

In the secondary lead smelting facilities that EPA considers to be totally 

enclosed, the walls of buildings often are part of the process fugitive emission total 

enclosure. This design practice is in some cases the only practicable way for existing 

secondary lead smelters that are not totally enclosed to become totally enclosed, and 

will be adopted by these facilities to comply with the Secondary Lead Rule. But 

depending on the atmospheric conditions surrounding buildings, secondary lead 

smelters do not maintain a constant negative pressure of 0.013 mm of mercury on an 

instantaneously evaluated basis, particularly on the leeward side of buildings. This is 

because short-duration high wind gusts can cause turbulence and short-term variances 

in differential pressure. As such, requiring facilities to maintain a continuous negative 

pressure of 0.013 mm of mercury at total enclosures, without a representative 

averaging period that would allow for occasional short-duration drops below 0.013 

mm of mercury, does not accurately describe the performance of any secondary lead 

smelters. It will also present significant compliance difficulties for smelters when they 

are required to comply with the Rule. 

Finally, given the possibility that weather events that are beyond the control of 

the secondary lead smelting industry could cause variances in differential pressure, 

EPA should clarify that any differential pressure readings below 0.013 mm of mercury 

serve as a parametric value for triggering an investigation to determine what is 

impacting the negative pressure of a total enclosure, but would not constitute a 
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violation of the Clean Air Act or EPA’s regulations at 40 C.F.R. Part 51 Subpart X. 

As long as the source reviews the integrity of the enclosure and promptly takes and 

documents any necessary corrective action, no violation would occur.

Given these concerns noted above, EPA should confirm in writing what is 

already implicit through the general requirements incorporated into the Rule: that 

compliance with the differential pressure requirement for total enclosures is 

determined by averaging results on an hourly basis. Alternatively, EPA should 

reconsider the Secondary Lead Rule and revise it to include an express hourly 

averaging period for total enclosure differential pressure monitoring data. Finally, 

EPA should clarify that any differential pressure readings below 0.013 mm of mercury 

serve as a parametric value for triggering investigation, but do not constitute a 

violation of the Rule. 
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III. Conclusion

For the reasons described in this Petition, ABR respectfully requests that EPA 

reconsider the Secondary Lead Rule. ABR does not at this time request that EPA stay 

these aspects of the Rule pending administrative reconsideration. ABR expressly 

reserves, however, its right to request that EPA stay the Rule in the interests of justice 

pursuant to APA § 705, 5 U.S.C. § 705. 

Dated: March 5, 2012 Respectfully submitted,

 /s/ Mark W. DeLaquil 

Robert N. Steinwurtzel

Mark W. DeLaquil

BAKER & HOSTETLER LLP

Washington Square, Suite 1100

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036-5304

Phone: 202.861.1500

Facsimile: 202.861.1783

Email: rsteinwurtzel@bakerlaw.com

mdelaquil@bakerlaw.com

Counsel for Petitioner Association of Battery 

Recyclers, Inc.