### 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.c om1

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
L ead 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 AB R 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 memb ers 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 Se condary 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 fi nal 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 rule s in appropriate circumstances. See, e.g. , 75 Fed. Reg. 82,430, 82,436 (Dec. 30, 2010). EPA should reconsider the following aspects of the2

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 erroneo us 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 conditio ns preclude the totally enclosed secondary lead smelters on which EPA based its design standard from m aintaining 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 inclu des an h ourly 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 T he Toxic Equivalency Factors For Diox ins 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 facto rs [] outlined by the World Health Organization (WHO) in 2005.” 76 Fed. Reg. at 29,032, 29,051 (May 19, 2011) (“Proposed Secondary Lead
R ule”). In its comments on the P roposed Secondary Lead Rule, ABR requested that EPA clarify “the regulatory language p roposed to be codified at 40 C.F.R. §3

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). T he Response to Comments document i ndicate d 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 Re sponse 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 fo llowing 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

- pentachlo rinated dibenzofuran 0.54

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 dibenz o

- 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 Prote ction 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 t he Response to Comments reaffirming this point, EPA should5

correct the factors. These corrections will ensure that the Secondary Lead R ule 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 rulema king 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 subse ction 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 Encl osures EPA should either clarify that the Secondary Lead Rule ’ s differential pressure monitoring r equirements for total enclosures p rovided for monitored data to be averaged on an h ourly 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 fugiti ve dust control. The first option was to6

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 req uirements 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 su pport 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 ve locity 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. 6 0

- 67 (Att. A). Ultimately, EPA declined to finalize the alternative design standard partial enclosure compliance option in the Secondary Lead Rule, instead requiring that all7

secondary lead smelters totally enclose process fugitive emission sources. See 7 7 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 consi stent 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 Ru le 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 incorpor ates the general requirements of 408

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) o f 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 t hat 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
alternati ves 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 applicab le to the final Secondary Lead
R ule’s total enclos ure 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 industry9

unless compliance is determi ned 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 bui ldings, 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 a nd 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 possi bility 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 a10

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 int egrity 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 enclosure s 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
averag ing 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.11

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 LL P 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 Associat ion of Battery Recyclers, Inc.