ATTACHMENT A 
 

Comments of the Association of Battery Recyclers 

National Emission Standards for Hazardous Air Pollutants: 

Secondary Lead Smelting 

Docket EPA-HQ-OAR-2011-0344 

July 26, 2011 

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
i

I. Introduction.......................................................................................................... 1 

II. The Proposed Rule Fails To Consider Sources In The Risk And 

Technology Review And In Setting And Resetting MACT Floors ........................ 2 

III. Risk And Technology Review.............................................................................. 5 

A. EPA Improperly Conducted Facility-Wide Risk Assessments................... 5 

B. EPA’s Risk Review Is Incorrect Because The Agency’s Fugitive 

Estimations Are Unreliable and Incorrect.................................................. 7 

C. Risk Review Procedures......................................................................... 11 

1. EPA Departed From Its Risk Assessment Guidelines.................. 11 

2. EPA’s Risk Assessment Is Predicated On An Overestimation 

Of Dioxin And Furan Emissions ................................................... 12 

3. EPA’s Risk Review Methodology Is Unsound .............................. 13 

a. EPA Considers Risk To Hypothetical, Not Actual, 

Populations........................................................................ 13 

b. EPA Overestimates The Cancer Incidence For People 

Living Near Secondary Lead Smelters .............................. 15 

4. Risk And Toxicity Factors............................................................. 15 

a. Dioxin And Arsenic Background Risks .............................. 15 

b. EPA Should Not Use The California Arsenic REL ............. 18 

5. Other Issues................................................................................. 22 

IV. Emission Standards........................................................................................... 23 

A. EPA Improperly Regulates Elemental Lead As A HAP In Violation 

Of Clean Air Act §§ 112(b)(2) And 112(b)(7) .......................................... 23 

B. EPA’s Proposed Regulation Of Lead Under The NESHAP Program 

Conflicts With Its Regulation Of Lead Compounds Under The PSD 

Program.................................................................................................. 27 

C. EPA Does Not Provide A Legal Basis For Setting New Standards 

Through The RTR Process..................................................................... 29 

D. EPA Must Consider NAAQS-Mandated Emissions Reductions in 

NESHAP Analyses ................................................................................. 31 

E. EPA Should Clarify the Timeline for NAAQS and NESHAP 

Implementation ....................................................................................... 35 

F. EPA Improperly Reset MACT Floors Pursuant To The Clean Air Act 

§ 112(d)(6) Process ................................................................................ 38 

G. Data Quality Problems In Setting Emission Factors ............................... 39 

H. Toxic Equivalency Factors...................................................................... 40 
ii

I. Specific Emission Standards .................................................................. 40 

J. Startups, Shutdowns, And Malfunctions ................................................. 40 

K. Test Measures For Compliance.............................................................. 41 

V. New Work Practices And Design Standards ..................................................... 42 

A. EPA’s Proposed Fugitive Dust Enclosure Standards And Work 

Practices Are Unsupported By Information In The Docket And Are 

Inconsistent With Clean Air Act § 112..................................................... 42 

B. The Proposed Fugitive Dust Work Practices Are Improper..................... 47 

1. The Proposed Rule’s Fugitive Dust Work Practices Are Not 

Necessary To Comply With The NAAQS ..................................... 47 

2. EPA Should Clarify Its Alternative Work Practice 

Equivalency Requirements .......................................................... 48 

3. The Proposed Rule’s Specific Design And Work Practice 

Standards Are Impossible, Impracticable, Or Unnecessary ......... 49 

a. Design Standards.............................................................. 49 

b. Velocity Requirements Redundant To Pressure 

Requirements.................................................................... 51 

c. EPA Should Eliminate Daily In-Draft Testing 

Requirements In Favor Of More Efficient Monthly 

Requirements.................................................................... 53 

d. EPA’s Enclosure Monitoring Is Unsupportable.................. 53 

e. Roof Washing Is Unnecessary And Dangerous ................ 54 

f. EPA Should Abandon The Wet Washing Requirement..... 55 

g. EPA’s Requirements For Maintenance Activities Are 

Overly Prescriptive ............................................................ 57 

4. EPA Has Not Adequately Explained The Purported Emission 

Benefits Of Its Proposed Work Practice Standards...................... 58 

C. Alternative Design Standards ................................................................. 60 

1. Legal Issues Related To Alternative Design Standards ............... 60 

2. Proposed Regulatory Language For Alternative Design 

Standards..................................................................................... 65 

D. Other Work Practices.............................................................................. 67 

1. EPA Should Not Impose Work Practices For Mercury ................. 67 

2. EPA Should Eliminate Its Proposed Plastic Separation 

Requirement ................................................................................ 68 

VI. Other Issues ...................................................................................................... 69 
iii

A. EPA Should Not Require The Use Of Continuous Emission 

Monitors.................................................................................................. 69 

B. EPA Should Retain The Exemption From Bag Leak Detection For 

Baghouses With Secondary HEPA Filters .............................................. 75 

C. EPA Should Allow Three Years For Compliance .................................... 76 

D. New And Modified Sources..................................................................... 79 

1. EPA Should Change The Term “Modified Source” To 

“Reconstructed Source” ............................................................... 79 

2. EPA Should Clarify That The “Affected Source” Is The 

Secondary Lead Smelter As A Whole.......................................... 80 
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I. Introduction 

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

national trade association that has represented the lead recycling industry for more than 

twenty-five years. Members of the ABR include battery manufacturers, lead chemical 

manufacturers, lead fabricators, secondary lead smelters, 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. 

The ABR appreciates the opportunity to provide the attached comments on the 

U.S. Environmental Protection Agency’s (“EPA’s”) proposed National Emission 

Standards for Hazardous Air Pollutants: Secondary Lead Smelting, 76 Fed. Reg. 

29,032 (May 19, 2011) (the “Proposed Rule”). The ABR’s comments are timely filed by 

the date provided in the National Emission Standards for Hazardous Air Pollutants: 

Secondary Lead Smelting; Extension of Comment Period, 76 Fed. Reg. 38,591 (July 1, 

2011). 

As set forth in these comments, the Proposed Rule is fundamentally flawed: 

 The Proposed Rule has significant data quality problems arising from its 

failure to consider relevant data and its incorrect estimation of available 

emission data; 

 The Proposed Rule is based on a flawed risk review process that 

overstates purported health effects from the secondary lead smelting 

industry; 

 The Proposed Rule is an impermissible attempt to cause attainment of the 

lead NAAQS that supersedes the SIP process; and 

 The Proposed Rule contains insufficient factual bases for its required 

emission standards and design and work practice standards. 

In light of the totality of these errors, the EPA should conclude the Risk and 
2

Technology Review process by determining not to revise the secondary lead smelting 

NESHAP. If EPA determines nevertheless to revise the NESHAP, it should issue a 

supplemental notice of proposed rulemaking to address the deficiencies identified in the 

ABR’s comments and to allow stakeholders a fair opportunity to comment on the 

corrected proposal. 

II. The Proposed Rule Fails To Consider Sources In The Risk And Technology 

Review And In Setting And Resetting MACT Floors 

The Proposed Rule fails to consider emissions from The Battery Recycling 

Company, Inc. (“TBRC”), a secondary lead smelter located in Arecibo, Puerto Rico. 

TBRC’s emissions are relevant to EPA’s Risk and Technology Review (“RTR”), as well 

as to the newly-proposed maximum achievable control technology (“MACT”) floors. 

EPA’s failure to consider these emissions fundamentally undermines the Proposed 

Rule, and EPA should issue a separate Information Collection Request (“ICR”) to TBRC 

and publish a supplemental notice of proposed rulemaking that takes into account these 

emissions.1

Risk And Technology Review. In the RTR, EPA is charged with determining 

whether additional standards are necessary from the secondary lead smelting industry 

“in order to provide an ample margin of safety to protect public health in accordance 

with this section . . . or to prevent, taking into consideration costs, energy, safety, and 

other factors, an adverse environmental effect.” 42 U.S.C. § 112(f)(2). In so doing, 

EPA must determine whether “standards promulgated pursuant to subsection [112](d) . 

. . reduce lifetime excess cancer risks to the individual most exposed to emissions from 

 

1

 TBRC was not an ABR member when EPA issued, and when the ABR’s members 

responded to, the ICR on which EPA based the Proposed Rule’s emission limits. TBRC 

has since joined the ABR. 
3

a source in the category or subcategory to less than one in one million,” and require 

standards under subsection 112(f) if such risk remains. 42 U.S.C. § 7412(f)(2). 

In accordance with the terms of these provisions, EPA has interpreted the scope 

of its RTR as requiring the Agency to consider effects from the source category and 

subcategories on the most exposed individuals, which necessitates correctly defining 

the source category. Consideration of the emissions profile of, and technology 

employed by, TBRC is necessary for the Risk and Technology Review. EPA would act 

arbitrarily and capriciously by forfeiting the opportunity to consider effects on individuals 

near TBRC’s facility and by not examining the technology implemented by the company. 

MACT Floors. The Proposed Rule sets forth proposed MACT emission 

standards for total hydrocarbons (“THC”) from subcategories other than blast furnaces, 

as a surrogate for organic hazardous air pollutants (“HAP”), and dioxins and furans 

emitted from existing sources. EPA did not promulgate MACT standards for these 

pollutants as part of the 1997 NESHAP for the secondary lead smelting industry. These 

emission standards are governed by Clean Air Act § 112(d), which requires that EPA 

consider the best-performing five sources for each category or subcategory in question: 

shall not be less stringent . . . than . . . the average emission 

limitation achieved by the best performing 5 sources (for 

which the Administrator has or could reasonably obtain 

emissions information) in the category or subcategory for 

categories or subcategories with fewer than 30 sources. 

42 U.S.C. § 7412(d)(3)(B). 

EPA does not consider emissions from TBRC in its proposed MACT floors. 

There is no question that prior to publication of the Proposed Rule, EPA was aware of 

TBRC. In June 2011 alone, EPA publicly announced that it had reached agreement 

with the company regarding lead transport from the facility and issued “second round” 
4

nonattainment designations for the lead primary national ambient air quality standards 

(“NAAQS”) for the air quality management district covering Arecibo, Puerto Rico. Given 

its knowledge of and relationship with TBRC, there is no question that EPA “could 

reasonably obtain” information about that facility, or could have done so in the past. 

EPA’s failure to execute this obligation contravenes the plain text of Clean Air Act § 

112(d)(3). 

TBRC’s emissions profile likely will affect the MACT floors for dioxins and furans 

and for THC, for the rotary furnace subcategory. The secondary lead smelting industry 

in the United States has only fifteen operating (15) facilities, including the TBRC facility. 

The subcategories of the industry for which EPA has set separate emission standards 

contain even fewer members. The MACT floor analysis considered emission data from 

only the Revere Smelting and Refining facility in Middletown, New York, in setting 

dioxins and furans and THC emissions from non-collocated reverberatory furnaces. 

See EPA-HQ-OAR-2011-0344-0042. The rotary furnace at the Revere facility 

processes primarily, if not exclusively, reverberatory furnace slag as its feed material. 

In contrast, it is ABR’s understanding that the Arecibo facility employs rotary furnaces 

whose feed is comprised of lead-bearing battery components, which is an entirely 

different feed mix. The Arecibo feed mix is much more similar to the feed mixes used at 

other rotary furnaces. Thus, information about that facility is critical to establishing an 

appropriate NESHAP. The Proposed Rule’s failure to consider the emissions data from 

the TBRC facility renders the MACT floor analyses conducted for THC and dioxin and 

furan emissions from the rotary furnace subcategory invalid. 
5

EPA Should Issue An ICR To TBRC And Reissue The Proposed Rule. EPA 

should collect emissions information from TBRC and issue a supplemental notice of 

proposed rulemaking that considers this information. Clean Air Act § 114 allows the 

Agency to “require any person who owns or operates any emission source . . . to . . . 

sample such emissions” “[f]or the purpose [] of developing or assisting in the 

development of . . . any emission standard under section 7412.” 42 U.S.C. § 

7412(a)(1)(C). Stakeholders can only be assured that emissions information that TBRC 

submits to EPA will be calculated using the same methodology that ABR’s other 

members provided to the Agency if TBRC submits it in response to a Clean Air Act § 

114 request. It is absolutely critical for the Agency to have an “apples-to-apples” 

comparison in determining the level of achieved emissions on which the MACT 

standards are based. Even if EPA were able to collect the necessary information from 

TBRC as part of the public comment process, the ABR will not have legally sufficient 

notice of precisely how the Agency would incorporate it into its RTR or how EPA will use 

it to recalculate potentially the MACT floors for THC and dioxins and furans. The ABR 

intends to analyze this information and to submit comments on it, so failure to issue a 

supplemental notice of proposed rulemaking would constitute a prejudicial error within 

the meaning of Clean Air Act § 307, 42 U.S.C. § 7607(d)(8). 

III. Risk And Technology Review 

A. EPA Improperly Conducted Facility-Wide Risk Assessments 

EPA’s risk review was conducted in violation of Clean Air Act § 112(f)(2) because 

it considered risks that were caused by sources or entities that are not part of the 

secondary lead smelting industry categories or subcategories. 
6

Clean Air Act § 112(f)(2) charges the Administrator with promulgating revised 

standards only where doing so is necessary to protect public health or the environment 

from emissions by source categories or subcategories as a whole: 

[Under certain appropriate circumstances], the Administrator 

shall, within 8 years after promulgation of standards for 

each category or subcategory of sources pursuant to 

subsection (d) of this section, promulgate standards for 

such category or subcategory if promulgation of such 

standards is required in order to provide an ample margin of 

safety to protect public health in accordance with this section 

. . . .” 

42 U.S.C. § 7412(f)(2)(A) (emphasis added). With regard to the specific cancer risk, the 

section again directs EPA to regulate (if necessary) by reference to emission from 

source categories or subcategories as a whole: 

If standards promulgated pursuant to subsection (d) of this 

section and applicable to a category or subcategory of 

sources emitting a pollutant (or pollutants) classified as a 

known, probable or possible human carcinogen do not 

reduce lifetime excess cancer risks to the individual most 

exposed to emissions from a source in the category or 

subcategory to less than one in one million, the 

Administrator shall promulgate standards under this 

subsection for such source category. 

42 U.S.C. § 7412(f)(2)(A) (emphasis added). The legislative history of this provision 

confirms that “[f]or each category of sources, EPA will promulgate a standard which 

requires the installation of [MACT] by the sources in the category.” H.R. Rep. No. 

101-952, at 338 (1990), reprinted in 1990 U.S.C.C.A.N. 3870 (emphasis added). 

In contrast to Clean Air Act § 112(f)(2)’s focus on source categories, EPA has 

“assessed risks due to HAP emissions from the entire facility at which the covered 
7

source category is located (facility-wide risk estimates).” 76 Fed. Reg. at 29,047.2 By 

including facility-wide emissions that are not necessarily related to the secondary lead 

smelting source category or subcategories, EPA may overestimate the risks associated 

with the secondary lead smelting industry, and promulgate risk-based standards for 

risks that are not attributable to its emissions. Similarly, by proposing emission 

standards that are “predicated on individual sources emitting lead at levels that would 

result in ambient concentrations less than the primary lead NAAQS,” 76 Fed. Reg. at 

29,063, EPA is improperly considering background ambient lead concentrations in its 

risk analysis. 

EPA has requested comment on the related question “whether and how best to 

estimate and evaluate total HAP exposure in [its] assessments.” 76 Fed. Reg. at 

29,047. As described above, Clean Air Act § 112(f)(2) unambiguously directs Congress 

to measure risk from source categories, not risk from other sources or background risk. 

It would be unlawful for EPA to use information from the National Air Toxics 

Assessment or otherwise to include non-source category (or subcategory) risk in setting 

standards pursuant to Clean Air Act § 112(f)(2). 

B. EPA’s Risk Review Is Incorrect Because The Agency’s Fugitive

 Estimations Are Unreliable and Incorrect 

EPA’s methodology for estimating fugitive emissions from the secondary lead 

smelting industry is unreliable and incorrect. This error fundamentally undermines the 

Proposed Rule, which acknowledges that “fugitive dust emissions were the largest 

contributor to the risks due to lead emissions,” the risks from which are “considerably 

 

2

 At one point, the Proposed Rule states that EPA did not consider non-source category 

emissions in its risk review. See 76 Fed. Reg. at 29,042. EPA should clarify whether it 

did or did not take into account non-source category risk in the risk review. 
8

greater than the impacts due to stack emissions” See 76 Fed. Reg. at 29,038. Given 

the centrality of EPA’s fugitives estimate to the Proposed Rule, EPA should defer 

finalizing the Rule until it develops an appropriate fugitive emissions estimation 

methodology, ground validates the methodology, and submits it for public comment in a 

supplemental notice of proposed rulemaking. 

EPA’s fugitive emission methodology is based on the purported fugitive 

emissions from one secondary lead smelter, Exide Technologies’ facility in Frisco, 

Texas. EPA estimates fugitive emissions from other facilities through a “factoring” 

approach that compares these facilities to Exide Frisco on the basis of a series of 

housekeeping practices or process fugitive enclosures that EPA suggests, without 

explanation, control overall fugitive dust emissions. See EPA-HQ-OAR-2011-0344-

0038. After the ABR learned that EPA was considering this approach, it expressed its 

concerns that the methodology was too imprecise to calculate emissions properly and 

that the Exide Frisco facility was not selected on the basis that it was representative of 

all facilities in the industry. See EPA-HQ-OAR-2011-0344-0028. 

Further review of EPA’s fugitive estimation methodology has confirmed that it is 

unreliable and incorrect. As an initial matter, EPA’s baseline calculations for the Exide 

Frisco facility are incorrect and cause the Agency to significantly overestimate 

emissions. EPA estimates that the Exide Frisco facility emits 1.03 tons per year (“tpy”) 

of fugitive dust emissions. See EPA-HQ-OAR-2011-0344-0038, p. 13. This 1.03 tpy 

figure is based on a misreading of Exide’s 2010 ICR program survey response. 

Overall, fugitive emissions reported by the Exide Frisco facility in the ICR survey 

are 0.7 tpy. This amount is consistent with that reported by the facility for lead 
9

compound fugitive emissions on its 2009 Toxic Release Inventory (TRI) Form R report. 

In its ICR survey response, Exide broke this value down and assigned component 

fugitive values for various emission processes. In so doing, Exide included emissions 

from its blast and reverberatory furnaces in a single workbook tab, listing an annual 

emission rate of 0.296 tpy. See Email from Chuck French to Russell Kemp (July 12, 

2011) (“Attachment A”). 

EPA made two significant errors in reviewing the data Exide submitted. Rather 

than using Exide’s reported blast and reverberatory fugitive emissions, EPA scaled from 

.296 tpy up to 0.32 tpy on the unsubstantiated and incorrect basis that “fugitives 

wouldn’t be on the same operating schedule as process emissions.” See Email from 

Chuck French to Russell Kemp (July 12, 2011). This scaling is inappropriate because 

the fugitive emissions in question were furnace fugitives that could occur only when the 

associated process furnaces were operating. 

After overstating the fugitive emissions, EPA then double-counted the fugitives 

by assigning a value of 0.32 tpy to fugitives from each of the blast and reverberatory 

furnaces, despite the fact that Exide had reported the 0.29 tpy combined blast and 

reverberatory furnace emission value to the Texas Commission on Environmental 

Quality (“TCEQ”) in its 2009 Emission Inventory report. Correcting the erroneous value 

of 1.03 tpy of fugitives from the Exide Frisco facility with the ICR survey value of 0.7 tpy 

would reduce the estimates from all the other facilities by approximately one-third.3

Moreover, EPA’s factoring approach for estimating fugitive emissions is 

methodologically unsound. As the Agency explained in the Draft Development of the 
10

RTR Emissions Dataset for the Secondary Lead Smelting Source Category April 1, 

2011, one of the primary factors that EPA considered in estimating fugitive emissions 

was the degree of enclosure. See EPA-HQ-OAR-2011-0344-0038, p. 12. EPA sorted 

all secondary lead smelters into one of three groups based on this characteristic: Level 

3 facilities were assigned a factor of 0.25 to reflect their high degree of control, Level 2 

facilities were assigned a factor of 0.75 to reflect what EPA believed to be a “medium” 

degree of control, and Level 1 facilities were assigned a factor of 1.0 to indicate that 

EPA believed these facilities’ controls to be the least effective. EPA applied these 

factors to the Exide Frisco emission rate for each facility. 

In factoring this variable across the industry, EPA failed to take into account the 

fact that Exide Frisco itself is a “Level 2” facility, not a “Level 1 facility.” See EPA-HQOAR-2011-0344-0038, tbl. 6-1, p. 14, tbl. 6-3, p . 15. Thus, all other “Level 2” facilities 

that share Exide Frisco’s degree of enclosure had their fugitive emissions reduced by 

25% based on this error, and all “Level 1” facilities were assigned the same weight as 

the Exide Frisco facility, even though EPA concluded that it employs a higher degree of 

enclosure. This error overstates “Level 3” facilities’ fugitive emissions by reducing the 

difference between “Level 3” and “Level 2” that EPA apparently intended in its 

methodology, although this difference is difficult to quantify. Effectively, EPA used the 

wrong common denominator for all facilities in the secondary lead smelting industry, 

EPA’s fugitive emission estimate for the Exide Frisco facility formed the basis for 

the estimation of fugitive emissions from all of the other facilities in the industry. See

EPA-HQ-OAR-2011-0344-0038. EPA ostensibly ground validated this approach and 

 3

 The ABR calculated the percentage difference by comparing the 0.7 corrected fugitive 

estimate with the incorrect 1.03 value according to the following formula: (1 – 0.7/1.03) 
11

determined that it reasonably estimated “actual fugitive emissions from these facilities 

partly due to the findings that the available ambient monitoring data . . . indicate that 

measured levels of lead in ambient air near these facilities are generally similar in 

magnitude . . . to the modeled estimates.” See 76 Fed. Reg. at 29,043. Having ground 

validated the Proposed Rule’s approach to calculating fugitive emissions, it would be 

irrational for EPA to simply correct the specific errors that ABR identified in this proposal 

and then claim that its methodology is acceptable. Instead, EPA should reconsider its 

approach for estimating fugitive emissions, determine a correct and methodologically 

sound way to estimate fugitive emissions, and issue a supplemental notice of proposed 

rulemaking. 

C. Risk Review Procedures 

1. EPA Departed From Its Risk Assessment Guidelines

EPA’s attempt to transform an exceedance of the lead NAAQS into a hazard 

index (sometimes referred to in the record and ABR’s comments as “HI”) is improper 

because the lead NAAQS does not quantify risks for adolescents and adults. EPA’s 

Risk and Technology Review, Analysis of Socio-Economic Factors for Populations 

Living Near Secondary Lead Smelting Facilities, EPA-HQ-OAR-2011-0344-0044 (“RTR 

Document”), develops chronic hazard indices for lead based on the estimated maximum 

three-month rolling average air lead levels divided by the lead NAAQS. RTR 

Document, p. 2. EPA calculates this figure without regard to age. The lead NAAQS 

was quantitatively based only on risks to young children, however. Adults and 

adolescents who are exposed to ambient lead concentrations that exceed the lead 

NAAQS are not necessarily exposed to an unacceptable risk. 

 

* 100 = 32 percent. 
12

Despite EPA’s lead NAAQS methodology, the RTR document concludes that 

adolescents and adults exposed to air lead levels above the lead NAAQS are exposed 

to unacceptable risks. EPA ostensibly made this decision in the RTR Document 

because the Agency concluded that the lead NAAQS would also reduce risk to 

adolescents and adults. It does not follow, however, that the lead NAAQS provides the 

basis for an appropriate hazard index calculation for adolescents and adults. The 

resulting hazard indices presented on Tables A-5 through A-8 of the RTR Document are 

accordingly incorrect with respect to adolescents and adults, and hazard indices should 

not be presented in these tables for age groups other than young children. EPA even 

tacitly acknowledges this error without correcting it: 

The demographic noncancer results for lead are presented 

in Table 2 as "Population with Ambient Lead Concentrations 

Exceeding the NAAQS," rather than as population with HI 

greater than 1, because lead concentrations were compared 

to the NAAQS rather than to a reference concentration. 

RTR Document, p. 8. 

Nevertheless, the RTR Document is internally inconsistent because the hazard 

index calculations are presented in the appendix tables. All references to a hazard 

index or HI for lead should be eliminated from the text and tables. 

2. EPA’s Risk Assessment Is Predicated On An

 Overestimation Of Dioxin And Furan Emissions 

 EPA’s risk review is flawed because it is predicated on an overestimation of 

dioxin and furan emissions, and a commensurate overestimate of public health 

concerns, from the Exide Frisco facility. 

 The Proposed Rule is based on an analysis estimating the maximum individual 

risk (“MIR”) “for dioxin to be 30 in a million (based on Laotian anglers near the Frisco, 
13

TX, facility).” See 76 Fed. Reg. at 29,053. EPA’s statement is made based upon the 

results of the Human Health Multipathway Residual Risk Assessment for the Secondary 

Lead Smelting Source Category, which estimates the Laotian angler risk at 3.2E-05. 

See EPA-HQ-OAR-2011-0344-0037, p. 60, tbl. 5-5. The Human Health Multipathway 

Residual Risk Assessment for the Secondary Lead Smelting Source Category states 

that the emissions estimate for dioxins and furans from the Exide Frisco facility used as 

an input 4.26E-06 tons/year on a Toxic Equivalency Quotient (“TEQ”) basis. See EPAHQ-OAR-2011-0344-0037, p. 16, tbl. 3-1, p. 19, tbl. 3-2. The estimated TEQ emission 

rate of 4.26E-06 tons/year resulted in an estimated MIR of 30 in a million. 

 ABR member Exide Technologies has submitted to EPA the results of extensive 

stack testing for the referenced facility in Frisco, Texas. See Letter from Frederick 

Ganster to Chuck French (June 23, 2011) (“Attachment B”). Results of the testing for 

dioxins and furans conducted in October 2010 from that facility’s furnace scrubber stack 

(serving as its blast and reverberatory furnace process exhaust), measured an exhaust 

rate of dioxins of only 6.2E-08 tons/year on a TEQ basis. The MIR multipathway risk 

due to dioxin emissions from this facility is, therefore, 69 times lower than 3.2E-5, or 

approximately 0.5 in a million. 

3. EPA’s Risk Review Methodology Is Unsound 

a. EPA Considers Risk To Hypothetical, Not Actual,

 Populations 

 EPA’s risk review is invalid because it is predicated on risks to hypothetical 

populations that may well not exist. EPA should determine whether the types of 

exposed populations on which it bases its multipathway risk assessment exist, and 

should revise its risk assessment accordingly. 
14

 EPA states in the Human Health Multipathway Residual Risk Assessment for the 

Secondary Lead Smelting Source Category, EPA-HQ-OAR-2011-0344-0037, that it did 

not evaluate whether the exposed populations were indeed present in the areas that 

were modeled for the multipathway risk assessment. For example, the highest risks 

found in the multipathway risk assessment are for Laotian anglers at Lewisville Lake 

near the Exide Frisco facility. Census statistics indicate that the Laotian population in 

this part of Texas is very small, reported as less than 100 Laotians for both Collin 

County (where the facility is located) and Denton County (where Lewisville Lake is 

located).4

 According to 2000 census statistics, the Laotian population for Texas as a 

whole is only approximately 10,000. Given the extremely small Laotian population in 

this area, it is incumbent on EPA to demonstrate that there are actually Laotian anglers 

who consume fish from Lewisville Lake. 

 EPA’s multipathway risk assessment also erred in its estimate of fish 

concentrations in Silver Lake. EPA focused on the Silver Lake as the nearest water 

body to the Revere Middletown facility, and presented the highest estimated risks for 

anglers in Silver Lake compared to the other nearby water bodies. But EPA also noted 

that Silver Lake is too small to support fishing unless it is stocked regularly. Stocking 

reduces the exposure period for fish and decreases expected fish tissue concentrations 

relative to lakes where fish are not stocked. EPA included no information in the docket 

suggesting that it considered this factor in its calculations. As such, unless EPA has 

failed to include the full basis for this aspect of its risk assessment in the record, it has 

overestimated risks to anglers associated with Silver Lake. 

 

4

 For privacy purposes, Census statistics are not provided when “the selected race, 

ethnic, or ancestry group has a population of less than 100 within the selected 
15

b. EPA Overestimates The Cancer Incidence For People

 Living Near Secondary Lead Smelters 

EPA’s Draft Residual Risk Assessment for the Secondary Lead Smelting Source 

Category overestimates cancer incidence for population living in the areas around the 

secondary lead smelters. EPA estimates cancer incidence by multiplying the estimated 

cancer risk for each census block by the number of people within the census block. 

Cancer risk for each census block is estimated by multiplying estimated lifetime average 

exposure by a Unit Risk Estimate (URE). EPA describes the URE in the following way: 

Because UREs for most HAPs are upper-bound estimates, 

actual risks at a given exposure level may be lower than 

predicted, and could be zero. 

EPA-HQ-OAR-2011-0344-0036, p. 24. This means that cancer incidences calculated 

on the basis of these UREs are also upper-bound estimates, but may be lower than 

predicted and could be zero. The EPA’s analysis should clearly identify the cancer 

incidence estimates as upper-bound estimates, and explain that actual cancer incidence 

could be as low as zero. 

4. Risk And Toxicity Factors 

a. Dioxin And Arsenic Background Risks 

EPA’s risk review, and commensurate reliance on its risk review in revising the 

NESHAP, is invalid because it fails to consider the actual reduction in dioxin and arsenic 

risks to nearby exposed populations that would occur with the use of the proposed 

additional controls. Additional controls on dioxin or arsenic emissions from secondary 

lead smelters will result at most in minimal reductions in individuals’ lifetime cancer 

risks. There is, therefore, little risk reduction and little benefit to public health from 

 

geography.” 
16

dioxin and arsenic emissions that would result from the Proposed Rule’s control 

measures. 

The Proposed Rule states in its ample margin of safety analysis that the MIR 

based on a Laotian angler to dioxin is greater than 1 in 1 million, the threshold for 

consideration of additional controls. In order to determine whether EPA’s proposed 

additional controls would meaningfully address this risk, the ABR has compared the 

dioxin concentrations and risks associated with the secondary smelter industry as 

estimated in the Proposed Rule to background dioxin concentrations and risks for the 

US population as a whole.5

 By using EPA’s figures, this analysis dramatically 

overstates the risk from dioxins and furans because EPA has incorrectly estimated 

these risks from the Exide Frisco smelter, as discussed in Part III.C.2 of these 

comments. 

 

5

 These risks are contained in EPA’s 2003 Dioxin Reassessment, 

http://www.epa.gov/ncea/pdfs/dioxin/nas-review/. The Proposed Rule’s methodology 

for estimating dioxin and furan risks constitutes an unexplained, and therefore arbitrary 

and capricious, departure from the background risks in EPA’s Dioxin Reassessment. 

For example, EPA used an exposure duration of 70 years in the Proposed Rule, but 

only 30 years in the Dioxin Reassessment. EPA also used higher fish ingestion rates in 

the Proposed Rule than in the Dioxin Reassessment. 
17

Table 1 

Dioxin Concentrations (as TEQ) 

 Secondary Lead Smelter EPA Dioxin Reassessment 

 Food Web Compartment Units 

Exide 

Frisco 

Exide 

Frisco 

Revised6

RSR 

Middletown Media Measured

Modeled 

Conc b

Surface water (Lake_E) mg/L 4.00E-14 5.80E-16 3.11E-16 Surface 

Water 5.0E-13 2.6E-12 

Water Column Carnivore 

(Lake_E) 

mg/kg [wet 

weight] 2.80E-07 4.06E-9 3.72E-09 Fish 1.0E-06 6.3E-06 

Sediment (Lake_E) μg/g [dry 

weight] 4.30E-10 6.23E-12 3.55E-12 Sediment 3.4E-06 

 Untilled Surface Soil in 

Farm_N 

μg/g [dry 

weight] 3.60E-08 5.22E-10 1.00E-10 Soil 9.3E-06 1.3E-06 

 Tilled Surface Soil in Farm_N μg/g [dry 

weight] 1.70E-09 2.46E-11 1.58E-12 6.5E-07 

As shown above, modeled dioxin concentrations for the secondary smelters are 

between one and several orders of magnitude lower than EPA’s measured and 

modeled concentrations in the Dioxin Reassessment. Dioxin emissions from these 

smelters produce a contribution to the environment that is not distinguishable from 

background concentrations. Even if the secondary smelters were viewed as providing 

an increment of dioxin in addition to dioxin present from other sources, this increment is 

so small that it is not measurable. 

Moreover, any reduction in risk to an individual will result from reduced 

environmental media concentrations of dioxins. As shown above, additional controls on 

dioxin emissions from the secondary smelters will result in less than a 1% reduction in 

an exposed individual’s risk, and possibly far less reduction. There is, thus, little to no 

risk reduction or benefit to public health from the proposed controls on dioxin emissions. 

 

6

 These revisions are consistent with the revised and corrected emissions estimates 

described in Part III.C.2. When the revised and corrected dioxin emissions from the 

Exide Frisco facility are considered, the modeled environmental media dioxin 
18

EPA similarly failed to compare estimated arsenic risks associated with the 

secondary smelters to background risks. The Proposed Rule concludes that the 

maximum individual lifetime inhalation cancer risk “could be up to 50-in-1 million, with 

fugitive dust emissions of arsenic . . . driving these risks.” See 76 Fed. Reg. at 29,052. 

EPA’s underlying risk calculations suggest that arsenic is responsible for approximately 

80% of this risk estimate, or a maximum individual lifetime inhalation cancer risk of 40-

in-1 million. However, the Agency for Toxic Substances and Disease Registry’s

Toxicological Profile for Arsenic (2007) (“ATDSR Profile”) states that average levels of 

arsenic in ambient air in urban areas of the United States range from 20 to 30 ng/m3

. 

These concentrations, combined with the URE for arsenic used in the Proposed Rule, 

yield inhalation risks from background levels of arsenic in air in urban areas of between 

35 and 50-in-1 million, similar to the MIR risk for the secondary smelters. EPA’s failure 

to consider this information, and to demonstrate how arsenic emissions from the 

secondary lead smelting industry would affect the extant risk from arsenic, is necessary 

for the risk review to support the Agency’s decision to promulgate risk-based standards 

under Clean Air Act § 112(f). 

b. EPA Should Not Use The California Arsenic REL 

EPA should not use the CalEPA acute REL for arsenic to assess acute arsenic 

risks associated with emissions from the secondary lead smelters, because this 

standard is invalid and substantially over-estimates acute risks from arsenic exposure. 

EPA should instead either not attempt to quantify acute arsenic risks, or it should 

correct the CalEPA acute REL by increasing it by, at a minimum, an order of magnitude. 

 

concentrations decrease by the same ratio, and the incremental dioxin associated with 

this facility are even lower. 
19

CalEPA’s acute REL of 0.2 μg/m3 is based on Nagymajtenyi, L, A. Selypes, G. 

Berensci. 1985, Chromosomal Aberrations and Fetotoxic Effects of Atmospheric 

Arsenic Exposure in Mice, J Appl Toxicol 5(2):61 (“Attachment C”). In this study, 

pregnant mice were exposed via inhalation to As2O3 for 4 hours per day on gestation 

days 9 through 12, at As2O3 concentrations of 0, 0.26, 2.9, and 28.5 mg/m3. California 

Office of Environmental Health Hazard Assessment (“OEHHA”), Air Toxics Hot Spots 

Program Technical Support Document For the Derivation of Noncancer Reference 

Exposure Levels app. d (Dec. 2008), available at http://www.oehha.ca.gov/air/ 

hot_spots/2008/AppendixD1_final.pdf - page=2. OEHHA identified 0.26 mg/m3 As2O3 

(0.197 mg/m3 As) as a lowest-observed-adverse-effect-level (“LOAEL”), based on a 

3.7% decrease in fetal body weight. At this concentration there were no significant 

effects on either malformations or chromosomal aberrations. OEHHA then divided this 

LOAEL by a total safety factor of 1,000, to account for use of a LOAEL rather than a noobserved-adverse-effect-level (NOAEL), and for inter- and intra-species variability. 

Ultimately, the California agency derived an acute REL of 0.2 μg/m3. 

As an initial matter, the California REL is void ab initio because the Nagymajtenyi 

study on which it relied was not conducted according to current regulatory guidelines. 

For developmental toxicity studies, such as this one, fetal effects must be evaluated on 

a litter basis, as there may be litter effects that are independent of the effects of the 

exposure. Nagymajtenyi did not evaluate the fetal effects on a litter basis, making it 

impossible to ascertain definitively whether the observed fetal effects were due to 

arsenic exposure, or due to litter effects independent of arsenic exposure. Although the 

decreased fetal weight was statistically significant on the basis of the fetus, this small 
20

decrease may not have been significant if it had been properly evaluated on a litter 

basis. 

In a similar rat developmental toxicity study that was conducted in accordance 

with appropriate guidelines, see DeSesso, J.M. (2001), Teratogen Update: Inorganic 

Arsenic. Teratology, 64: 170-173 (“Attachment D”), researchers concluded that no fetal 

effects, including increases in malformations, mortality, or resorptions, were observed at 

As2O3 concentrations of 10 mg/m3

 (8 mg/m3 as As) or less. See Holson, J.F., et al. 

1990, Absence of Prenatal Developmental Toxicity from Inhaled Arsenic Trioxide in 

Rats. Toxicol. Sci. 51:87-97 (“Attachment E”). The Holson study exposed pregnant 

rats to As2O3 for 6 hours per day, beginning 14 days prior to gestation and continuing 

through gestation day 20. The predominant exposure-related effect in this study was 

rales7, which was observed in the dams at As2O3 concentrations of 10 and 25 mg/m3. 

The NOAEL for this study was 3 mg/m3

 (2.3 mg/m3 as As). The absence of 

developmental effects at concentrations causing effects in the dams is consistent with 

results from other developmental toxicity studies of arsenic, in which developmental 

effects are only observed at high doses that also cause overt maternal toxicity, including 

in some cases death. See ATSDR Profile. 

The California acute REL’s invalidity is further confirmed by its conflict with the 

acute (1-hour) REL for arsine gas. See E.Martin Caravati, Arsenic and Arsine Gas in 

Medical Toxicology, Third Edition, 1398 (Lippincott Williams & Wilkins, 2004) 

(“Attachment F”). Despite the fact that arsine gas is much more toxic than As2O3., the 

California acute REL is approximately 100 times lower than that for arsine gas. This 

 

7

 In rodent inhalation toxicity studies, rales refers to a crackling respiratory sound that 

can be heard without the aid of a stethoscope. 
21

result is anomalous—the acute REL for arsine gas should be much higher than that for 

As2O3. It is also anomalous that despite the greater toxicity of arsine, there was no 

evidence of developmental toxicity in either rats or mice at concentrations up to 2.5 ppm 

(~ 8 mg/m3), in a study conducted by the National Toxicology Program. See R.E. 

Morrissey et al., Arsine: Absence of developmental toxicity in rats and mice. Fundam 

Appl Toxicol (1990); 15:350 (“Attachment G”). 

Even if there were some validity to the California REL—which there is not—the 

state’s selection of the 0.26 mg/m3 as a LOAEL is erroneous and dramatically 

overstates arsenic risks. It is inconsistent with and would constitute a departure from 

EPA’s practice, which has considered a fetal weight reduction of 0.1 g (3.5 g vs. 3.6 g, 

or 2.8%) to be not toxicologically significant. See Memorandum from R. Hawks to 

C. Eiden, EPA Health Effects Division, Hydroxyatrazine—Report of the Hazard 

Identification Assessment Review Committee, HED DOC. NO. 014312 (“Attachment 

H”). It is also inconsistent with the ATSDR’s guidance,8 which deems 0.26 mg/m3 to be 

a NOAEL rather than a LOAEL. See ATSDR, Toxicological Profile for Arsenic, available 

at http://www.atsdr.cdc.gov/toxprofiles/tp2.pdf. 

If California had followed the ATSDR’s guidance and EPA’s practice, and treated 

the arsenic concentration of 0.2 mg/m3

 from this study as a NOAEL, that, together with 

the use of appropriate uncertainty factors, would yield an REL of 2 g/m3, which is an 

order of magnitude higher than the current California REL. The Morrissey study, on 

which the National Toxicology Program based a NOAEL for arsine gas, suggests that 

the California acute REL should be set at a level at least 100 times greater than the 

 

8

 The ATSDR is part of the Center for Disease Control. 
22

current standard. 

5. Other Issues 

Other comments submitted in this rulemaking disagree with EPA’s use of census 

block centroids to estimate chronic risk for all people living within the census block, 

stating that this practice results in an underestimate of the MIR within each census 

block. See EPA-HQ-OAR-2011-0344-0080. EPA has estimated the MIR associated 

with each facility by purporting to determine the risk associated with a lifetime of 

exposure at the highest concentration outside the property boundary, however. EPA 

made this calculation independent of the census block centroid risk estimates, which 

were used only to estimate population risks. If EPA considered only the maximum 

individual risk in each census block, there would be no information from which to 

estimate population risks. 

Similarly, some commenters have suggested that EPA should use allowable, 

rather than actual, emissions in its risk review. But EPA has estimated risks on the 

basis of both allowable and actual emissions. See EPA-HQ-OAR-2011-0344-0037, p. 

30. In fact, the estimated risk associated with the allowable emissions form the basis of 

the proposed controls. See, e.g., 76 Fed. Reg. at 29,055 (describing the reduction by a 

factor of 10 in the stack lead concentration limit based on allowable emissions). 

That said, EPA should have conducted its risk review by considering only actual 

emissions from the secondary lead smelting industry, rather than allowable emissions. 

EPA’s risk review methodology is designed to determine what emissions controls are 

“required,” to protect public health within the meaning of Clean Air Act § 112(f)(2)(A), 

and consideration of hypothetical emissions are not necessary for this determination. 

Similarly, the purpose of reviewing emissions under Clean Air Act § 112(f)(1) is to 
23

assess “the actual health effects with respect to persons living in the vicinity of sources,” 

and considering allowable (but not actual) emissions fails to consider actual effects. 

Using actual emissions would also provide a more accurate reflection of the industry’s 

true emissions potential, because individual sources have operational limits that can 

limit their emissions. Finally, EPA’s risk methodology contains other provisions that 

adequately ensure that this determination will be protective of public health without 

considering allowable emissions that do not actually occur. 

IV. Emission Standards 

A. EPA Improperly Regulates Elemental Lead As A HAP In Violation Of

 Clean Air Act §§ 112(b)(2) And 112(b)(7) 

EPA has requested comments on “the interplay between implementation of the 

primary lead NAAQS and the proposed standards in today’s action.” See 76 Fed. Reg. 

at 29,064. The Proposed Rule contravenes Clean Air Act §§ 112(b)(2) and 112(b)(7), 

which preclude EPA from setting emission standards or work practices under Clean Air 

Act § 112 for lead and other criteria pollutants. 

In Clean Air Act § 112(b)(1), Congress promulgated a list of hazardous air 

pollutants for which EPA is required, in appropriate circumstances, to promulgate 

emission standards from listed source categories. See 42 U.S.C. § 7412(b)(1). “Lead 

Compounds” are listed under subsection 112(b)(1), and the statute’s use of compounds 

is “defined as including any unique chemical substance that contains the named 

chemical (i.e., antimony, arsenic, etc.) as part of that chemical’s infrastructure.” 42 

U.S.C. § 7412(b)(1). 

At the same time, however, Congress unambiguously expressed its intent that 

EPA not regulate criteria pollutants generally, and elemental lead specifically, through 
24

Clean Air Act § 112. In Clean Air Act § 112(b)(2), Congress provided that “[n]o air 

pollutant which is listed under section 7408(a) of this title may be added to the list under 

this section.” The D.C. Circuit has construed subsection 112(b)(2) broadly, explaining 

that the “prohibition extends of necessity not only to rules that literally list a criteria 

pollutant as a HAP but also to any rule that in effect treats a criteria pollutant as a HAP.” 

Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 638 (D.C. Cir. 2000). EPA has listed both lead 

and its compounds as a criteria pollutant under Clean Air Act § 108(a), for which 

NAAQS have been promulgated at all relevant times.9

Congress afforded elemental lead special treatment in the Clean Air Act, 

providing a separate and unique prohibition against EPA listing “elemental lead as a 

hazardous air pollutant under this subsection.” 42 U.S.C. § 7412(b)(7). As such, the 

breadth of Congress’ prohibition against treating lead as a hazardous air pollutant 

should extend even further than the general prohibition against listing criteria pollutants 

under Clean Air Act § 112, and unambiguously demonstrates Congress’ intent that the 

NESHAP program not provide for duplicative regulation of elemental lead. 

Clean Air Act § 112(b)(1), and Clean Air Act §§ 112(b)(2) and 112(b)(7), are 

easily reconcilable: regulation of unique chemical substances that are lead compounds 

 

9 See, e.g., 40 C.F.R. § 50.12 (“National primary and secondary ambient air quality 

standards for lead and its compounds, measured as elemental lead by a reference 

method based on appendix G to this part, or by an equivalent method, are: 1.5 

micrograms per cubic meter, maximum arithmetic mean averaged over a calendar 

quarter.”) (promulgated 1978); 40 C.F.R. § 50.12(a) (“National primary and secondary 

ambient air quality standards for lead and its compounds, measured as elemental lead 

by a reference method based on appendix G to this part, or by an equivalent thereof, 

are: 1.5 micrograms per cubic meter, maximum arithmetic mean averaged over a 

calendar quarter.”); 40 C.F.R. § 50.16(a) (“The national primary and secondary ambient 

air quality standards for lead (Pb) and its compounds are 0.15 micrograms per cubic 

meter, arithmetic mean concentration over a 3-month period, measured in the ambient 

air as Pb . . . .”). 
25

for their individual toxicity and health effects is permissible, but general regulation of 

lead compounds as a surreptitious means of establishing restrictions on elemental lead 

emissions or lead compounds generally for their elemental lead-based toxicity may not 

be countenanced. This reading honors the Clean Air Act’s decision to list lead 

compounds as HAP in subsection 112(b)(1), while also preserving Congress’ intent to 

maintain SIP primacy in requiring elemental lead controls through subsections 112(b)(2) 

and –(b)(7). It is also consistent with other provisions in Clean Air Act § 112, such as 

subsection 112(f)(6), which recognizes that where EPA has established “standards for 

the control of unique chemical substances of listed pollutants without CAS numbers,” 

such as lead compounds, that the Agency must consider “the substances actually 

emitted by sources” and may not consider compounds more generally as HAP. 42 

U.S.C. § 7412(f)(8) (emphasis added) 

Compelling statutory imperatives underlie Congress’ decision not to allow 

regulation of criteria pollutants, like elemental lead, through Clean Air Act § 112, and its 

preference for preserving the NAAQS implementation regime through the States for 

criteria pollutants. The purpose of listing a pollutant under Clean Air Act § 108(a) is to 

assist in “establishing national primary and secondary ambient air quality standards.” 

42 U.S.C. § 7408(a)(1). Substances may only be listed under Clean Air Act § 108(a) 

under specified conditions, including where “the presence of [the substance] in the 

ambient air results from numerous or diverse mobile or stationary sources.” 42 U.S.C. § 

7408(a)(1)(B). Once the NAAQS are established, states implement compliance 

measures to meet them through state implementation plans (“SIPs”), which compile the 

state’s laws, regulations, and enforcement standards for complying with the NAAQS 
26

and other requirements, as well as supporting scientific and technical evidence. See 42 

U.S.C. § 7410(a). 

Under the Clean Air Act, “air pollution prevention . . . at its source is the primary 

responsibility of States and local governments.” 42 U.S.C. § 7401(a)(3). The SIP 

process is the way in which the Clean Air Act ensured that states would “retain wide 

latitude in choosing how best to achieve national standards, given local needs and 

conditions.” United States v. Gen. Motors Corp., 876 F.2d 1060, 1062 (1st Cir. 1989). 

EPA sets the standards, which the States are free to achieve as they see fit: 

[T]he Clean Air Act creates a partnership between the states 

and the federal government. The state proposes, though the 

EPA disposes. The federal government through the EPA 

determines the ends—the standards of air quality—but 

Congress has given the states the initiative and a broad 

responsibility regarding the means to achieve those ends 

through state implementation plans and timetables for 

compliance. . . . 

Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036-37 (7th Cir. 1984) (internal 

citations omitted). EPA has no authority to specify particular criteria-pollutant-control 

measures for SIPs. See Virginia v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997). When 

a SIP submission “meets all of the applicable requirements of this chapter,” EPA is 

required to approve it, whether or not the SIP achieves nationally applicable standards 

in the manner that EPA itself prefers. 42 U.S.C. § 7410(k)(3). 

The specific way in which EPA regulates lead and lead compounds in the 

Proposed Rule runs afoul of Congress’ statutory design. The Proposed Rule 

unambiguously indicates that it set process vent emission standards pursuant to Clean 

Air Act § 112(f)(2) as a means of ensuring that the NAAQS would not be violated: 

As described above, EPA is proposing standards either 

predicated on individual sources emitting lead at levels that 
27

would result in ambient concentrations less than the primary 

lead NAAQS (the proposed stack standards), or (in the case 

of the alternative to enclosure standards for lead) actually 

demonstrating that the source emissions do not exceed the 

primary lead NAAQS at a point of maximum projected 

concentration. EPA anticipates that, at least in areas where 

nonattainment is attributable to single sources that are 

subject to this rule, if the proposed controls are sufficient to 

attain the NAAQS by the attainment deadline, then adoption 

of additional controls in the SIP for the area would not be 

necessary. 

76 Fed. Reg. at 29,063. 

 EPA’s decision to set unit-specific controls in a manner designed to achieve the 

NAAQS limits the ability of states to determine how best to meet these standards and 

works contrary to the purposes of Clean Air Act §§ 108 and 109. It is the precise type of 

regulation of a criteria pollutant under Clean Air Act § 112 that the D.C. Circuit said was 

prohibited: one that “in effect treats a criteria pollutant as a HAP.” Nat’l Lime Ass’n, 233 

F.3d at 638. It is also not “necessary” within the meaning of Clean Air Act § 112(f) 

because these emissions are being controlled directly by SIPs. For these reasons, the 

proposal to set lead emission standards pursuant to Clean Air Act § 112(f)(2) as a 

means of NAAQS compliance is arbitrary and capricious, and contrary to law. 

B. EPA’s Proposed Regulation Of Lead Under The NESHAP Program

 Conflicts With Its Regulation Of Lead Compounds Under The PSD

 Program 

Section 112(b)(6) of the Clean Air Act states: “The provisions of Part C of this 

subchapter (prevention of significant deterioration) shall not apply to pollutants listed 

under this section.” Substances that are “lead compounds” are listed under Clean Air 

Act § 112(b)(1), whereas the Act specifically proscribes listing “elemental lead,” see 

Clean Air Act § 112(b)(7). In the context of the PSD program, EPA has suggested that 

it counts the “Pb portion of Pb compounds” toward PSD significance levels for lead. 
28

See 67 Fed. Reg. 80,186, 80,239 (Dec. 31, 2002). EPA’s decision that it can 

disaggregate the “elemental lead” portion of various substances from their “lead 

compounds” further supports the ABR’s position that EPA’s proposal to regulate lead 

compounds generally on the basis of toxicity caused by their elemental lead aspects is 

unlawful under Clean Air Act §§ 112(b)(2) and –(b)(7). 

If EPA were to conclude that it may regulate lead compounds generally the basis 

of toxicity caused by their elemental lead aspects, however, then EPA’s PSD rule would 

be incorrect and should be revised. Congress clearly understood that there was a 

distinction between elemental lead and lead compounds, as it explicitly excluded 

“elemental lead” from NESHAP provisions in Clean Air Act § 112(b)(7), and included 

“lead compounds” in the Section 112(b)(1) list of HAPs. A decision to regulate lead 

compounds for their elemental lead-based toxicity under the NESHAP program would 

constitute a decision that the statutory text does not allow for any such siphoning of lead 

atoms from the remainder of lead compounds. 

That reasoning would, then, apply equally to the PSD exclusion under Section 

112(b)(6) for pollutants listed under Section 112 applies with full force to lead 

compounds. If EPA determines that regulation of lead compounds based on their 

elemental lead toxicity is governed by the NESHAP program, duplicative regulation 

under PSD is unlawful and unnecessary. EPA should, in that case, clarify in its Section 

112 rulemaking that meaning of Section 112(b) as applied to lead, consistent with the 

plain language of the statute: “The provisions of part C (prevention of significant 

deterioration) shall not apply to” lead compounds, including the lead atoms that cause 

such compounds to qualify as lead compounds. 
29

C. EPA Does Not Provide A Legal Basis For Setting New Standards

 Through The RTR Process 

The Proposed Rule lacks a sufficient legal basis to support its proposed 

promulgation of emission standards for dioxins and furans, and for total hydrocarbons 

(as a surrogate for organic HAP emissions). 

EPA states that it is “proposing emission standards for dioxins and furans [and 

work practices] pursuant to CAA section 112(d)(3)” “because the 1997 NESHAP did not 

include emissions limits.” 76 Fed. Reg. at 29,037. Similarly, EPA “did not establish 

standards for organic HAP emitted from reverberatory furnaces not collocated with blast 

furnaces, rotary furnaces, and electric furnaces in the 1997 NESHAP.” 76 Fed. Reg. at 

29,037. 

Having determined in the 1997 NESHAP not to set emission limits for THC (from 

subcategories other than blast furnaces) and dioxins and furans, EPA must provide a 

reasoned basis consistent with the Clean Air Act for doing so at this time. MACT 

standards pursuant to Clean Air Act § 112(d)(3) have never been intended as having 

the “inexorable downward ratcheting effect.” See, e.g., 69 Fed. Reg. 48,338, 48,351 

(Aug. 9, 2004). Instead, EPA was charged with setting a schedule for emission 

standards for various categories and subcategories pursuant to Clean Air Act § 112(e), 

and the 1997 secondary lead smelting industry NESHAP was set in accordance with 

this schedule. 

There are only two provisions in Clean Air Act § 112 that provide for revision of 

standards: Clean Air Act § 112(d)(6) and Clean Air Act § 112(f)(2). Clean Air Act § 

112(d)(6) allows EPA to revise only “emission standards promulgated under this 

section.” 42 U.S.C. § 7412(d)(6). EPA has not “promulgated emission standards” for 
30

dioxins and furans, or THC (for furnaces other than blast furnaces), so it may not 

promulgate revised standards for these substances under that authority. As discussed 

below, Clean Air Act § 112(d)(6) also allows EPA to act only when “necessary,” a term 

that requires EPA to make a judgment based, among other things, on demonstrable 

effects on public health. EPA does not provide such a justification for standard-setting 

under Clean Air Act § 112(d)(6), however, so it may not predicate the standards on this 

basis. 

Clean Air Act § 112(f)(2) allows for promulgations of HAP from source categories 

and subcategories only where necessary to protect public health with an ample margin 

of safety, taking into account various other factors. 42 U.S.C. § 7412(f)(2). EPA does 

not purport to justify its THC standards or emission standards for dioxins and furans on 

this basis. See 76 Fed. Reg. at 29,058.10 

Finally, the Proposed Rule does not attempt to predicate its decision to set 

controls for dioxins and furans, and THC (for sources other than blast furnaces), on the 

D.C. Circuit’s decision in Sierra Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007). Having 

made the determination not to rely on Sierra Club in support of the proposed rule, EPA 

may not change course without issuing a supplemental proposal and allowing an 

opportunity for public comment. EPA did cite National Lime v. EPA, 233 F. 3d 625, 634 

(DC Cir. 2000), in support of its decision to set emission standards for dioxins & furans, 

and THC from source subcategories other than blast furnaces, but as set forth in Sierra 

Club, EPA has not interpreted National Lime as requiring the Agency to set such 

standards. In any case, National Lime does not control because that decision did not 

address EPA’s authority to set standards pursuant to Clean Air Act §§ 112(d)(6) and 
31

112(f) through the RTR process. Instead, National Lime addressed what emission 

standards the agency should proposed in a MACT rulemaking pursuant to the deadlines 

set forth in Clean Air Act § 112(e). EPA has not proposed reopening its initial Clean Air 

Act § 112(e) rulemaking for the secondary lead smelting industry, nor should it do so. 

D. EPA Must Consider NAAQS-Mandated Emissions Reductions in

 NESHAP Analyses 

Clean Air Act § 112(f)(2) only authorizes NESHAP revisions as “required” to 

protect public health with an ample margin of safety or to prevent adverse 

environmental effects, taking into account several factors. Thus, even if EPA were not 

to agree with ABR that Congress prohibited a lead NESHAP due to the NAAQS, EPA 

should conclude that a NESHAP revision is not required to protect public health or 

prevent environmental effects, and so is not authorized. Taking into account the 

emissions controls required to achieve the NAAQS, further risk reduction through 

revision of the NESHAP is not required, and thus not authorized by Clean Air Act § 112. 

Under the Clean Air Act, EPA set the NAAQS for lead to protect public health 

with an adequate margin of safety and to protect the public welfare from adverse 

effects, a virtually identical standard as applies for the NESHAP revision. See 42 

U.S.C. § 7409(b). (Indeed, EPA has not suggested any substantive distinction between 

these formulations.) Even if EPA interprets both the NESHAP and NAAQS program to 

regulate lead, the Agency must still consider whether particular regulation of lead under 

the NESHAP program is “required” where regulation already exists under the NAAQS 

program. Thus, NESHAP revisions based on risk under Section 112(f) are not 

authorized to the extent that the NAAQS mandates reductions in pollutants to the same 

 10 This issue is discussed in greater detail in Part IV.A.2. 
32

levels as would be required by the NESHAP. To the extent that the NAAQS already 

requires reductions, the NESHAPs are not required to do so, and EPA would have no 

basis to revise the NESHAP to address residual risks. 

 More specifically, to ensure that EPA is acting in a statutorily authorized manner 

in issuing the secondary lead smelting NESHAP, EPA’s NESHAP risk assessment 

should realistically take into account the NAAQS-related emissions reductions. 

Considering NAAQS-related emission reductions not only requires the Agency to 

consider whether reductions in lead emissions are required, but also whether additional 

standards for other HAP emissions that are necessarily reduced by controlling leadbearing particulates are required. Otherwise, EPA would proceed on the incorrect 

assumption that ambient concentrations of lead or other HAP are “unacceptable” and 

that emissions “need to be reduced” through the NESHAP, when in fact emissions 

would be reduced completely independent of the NESHAP because states must

assemble SIPs without being able to wait for NESHAP completion (or the nonattainment 

areas would be subject to a FIP). 

 EPA should also consider in its risk assessment that states have already begun 

to proceed with the lead SIPs and sources have begun implementing controls to 

achieve the NAAQS as expeditiously as practicable. For example, Texas has published 

lead emissions control requirements for the Frisco, Texas area for inclusion in its SIP 

and has scheduled its final SIP adoption by the end of 2011. To comply with upcoming 

NAAQS standards, Frisco and other Exide facilities are implementing a suite of 

measures, including enclosures, point sources controls, and work practice 

requirements. NESHAP calculations should reflect that these planned reductions are 
33

already occurring. Given the NAAQS requirements, EPA is not required to issue a 

revised NESHAP to protect public health from lead emissions, which standards would 

be effectively duplicative. By ignoring the NAAQS requirements and measures as they 

are being implemented, EPA overestimates risks from lead emissions in its NESHAP 

risk assessment. By imposing further NESHAP requirements in order to address the 

risks that the NAAQS will already address, EPA would exceed its statutory authority by 

imposing such duplicative standards when they are not required or justified to address 

residual risk. 

EPA did, in fact, consider the effect of NAAQS controls in the case of one Exide 

facility, but did not explain why it did not extend this approach to all facilities in the 

industry. See 76 Fed. Reg. at 29,057 (addressing Exide’s Vernon, California facility). 

For Exide’s Vernon facility, EPA explained that it assessed risks reflecting the proposed 

NESHAP requirements for stack and fugitive emissions, but that these requirements 

would be insufficient to ensure that Exide Technologies’ Vernon facility would attain the 

NAAQS. EPA then explained that, based on Exide’s commitment to construct an 

additional enclosure and other measures to comply with the NAAQS, the facility will 

achieve levels at or below the NAAQS. EPA thus concluded that the facility would 

comply with the NAAQS, and thus EPA’s proposed NESHAP would reduce risks from 

fugitive lead to an acceptable level. It appears, then, that EPA determined that the 

NESHAP would sufficiently reduce lead risks, relying in part on reductions that the 

Vernon facility is making under the NAAQS program (independent of the NESHAP). 

Like it did for Vernon, EPA should consider all of those required reductions that are 

sufficient to reduce risk to an acceptable level. 
34

Revising the NESHAP to address risk under Section 112(f) is not required if EPA 

does, as it should, consider emissions controls required through implementation of the 

NAAQS. EPA’s conclusion that risks are unacceptable for secondary lead smelters was 

based on risk from exposure to lead and arsenic. NAAQS implementation will clearly 

reduce lead levels, and will also reduce arsenic levels as particulates containing lead 

are the same particulates that contain arsenic. EPA itself concludes in the proposal that 

the control measures for the two chemical families are the same and that control 

measures aimed at lead are sufficient to control arsenic. See 76 Fed. Reg. at 29,055 

(specifying reductions in lead necessary to ensure acceptable risk levels for arsenic). 

Thus, NAAQS implementation will reduce risks from both arsenic and lead to 

“acceptable” levels, making revisions to the NESHAP to reduce risk unnecessary and 

thus rendering EPA without the statutory authority to issue such revisions. 

This limit on EPA’s NESHAP revision authority makes good sense when 

considered in light of the policies underlying the Clean Air Act. As described in detail 

above, the NAAQS is implemented through SIPs, which give states primary jurisdiction 

to tailor provisions that best suit particular geographic locations, conditions and facilities. 

In contrast, NESHAP requirements apply with a single broad brush, without respect to 

location-specific concerns regarding effectiveness or facility-specific conditions such as 

the distance between operations and the fence-line. Thus, it makes sense for EPA to 

take into account NAAQS-mandated reductions in considering whether there is residual 

risk requiring further NESHAP requirements. 
35

E. EPA Should Clarify the Timeline for NAAQS and NESHAP

 Implementation 

Assuming EPA decides to finalize the Proposed Rule’s approach of using the 

NESHAP program to meet the lead NAAQS, the Agency should clarify the timeline for 

NAAQS and NESHAP implementation. In the Proposed Rule, EPA lays out a joint 

timeline for the regulation of lead under the NAAQS and NESHAP programs. See 76 

Fed. Reg. at 29,063. EPA explains that the Agency revised the lead NAAQS in 2008; 

designated some non-attainment areas effective December 2010; and plans to 

designate additional non-attainment areas effective December 2011. EPA further 

explains that, as a result, SIPs for these non-attainment areas will be due in July 2012 

and July 2013, respectively. States are required to reach attainment in these areas by 

deadlines of December 31, 2015 or 2016, depending on the designation date. 

According to EPA, the NESHAP timeline is in harmony with the NAAQS timeline: EPA 

proposes that the final NESHAP rule will become effective in early 2012, with a 

compliance date of March 2014.11 Thus, EPA concludes, states will be able to 

incorporate NESHAP requirements into SIPs, and such states could rely on NESHAP 

measures to ensure NAAQS compliance without additional (or with fewer) SIP 

measures. Both EPA’s NAAQS and NESHAP timelines, however, are not well-founded 

and warrant clarification. The NAAQS timeline is addressed herein. Moreover, EPA 

should provide three years—until 2015—for implementation of any NESHAP 

requirements (after taking into account the NAAQS requirements). 

 EPA’s statements in the NESHAP proposal revisit and reopen EPA’s earlier 

explanations of the NAAQS timeline. EPA has, for example, stated that in finalizing 
36

attainment designations it would “consider[] air quality monitoring data from the three 

previous years, as available, in determining whether areas have demonstrated 

attainment (i.e., EPA would only consider data for less than the three previous years in 

situations where the data for all three years was unavailable).” 73 Fed. Reg. 66,964, 

67,035 (Nov. 12, 2008). The ABR does not construe the Agency’s statement as 

requiring states to demonstrate attainment of the NAAQS based on the three-month 

average over a three-year period before the NAAQS attainment deadline. ABR further 

notes that the Agency has taken the position in actions on other NAAQS that 

statements such as this do not constitute final agency action. See 76 Fed. Reg. 4780 

(Jan. 26, 2011). 

 That said, it is possible that EPA could take the position that for an area to be 

designated as attaining the lead NAAQS, the monitored ambient lead levels for the 

three years before November 2015 must be below 0.15 ug/m3 on a three-month rolling 

average. If ambient lead levels must be below the NAAQS level by November 2012, 

then a final rule promulgated in early 2012 would not allow time for NESHAP control 

measures implemented by March 2014 (or 2015), to provide for timely NAAQS 

attainment. If, however, ambient levels of lead must achieve the NAAQS levels by a 

deadline of an attainment year of 2015 (and not prior), then states could “count on” 

NESHAP implementation in 2015 when they promulgate SIPs to achieve the NAAQS in 

2015 (or 2016).12 

 11 As described infra in Part VI.C, NESHAP compliance should not be required until 

three years after EPA promulgates the standards. 

12 As discussed above, however, it is not “necessary” for EPA to revise the NESHAP to 

address residual risk that will be eliminated through NAAQS implementation, so SIPs 

may not need to count on any NESHAP requirements. 
37

 Also, an EPA position that states must demonstrate attainment of the NAAQS 

based on the three-month average over a three year period before the NAAQS 

attainment deadline would be contrary to the Clean Air Act. In Environmental Defense 

v. EPA, 369 F.3d 193 (2nd Cir. 2004), the Second Circuit reasoned that it would violate 

the Clean Air Act to impose an earlier attainment date by requiring a demonstration of 

compliance prior to the attainment year. In that case, the court of appeals upheld EPA’s 

approval of an ozone SIP where the period for determining attainment was three years 

in the same manner as the NAAQS compliance schedule. Further, like the ozone 

program, the lead program requires reasonable further progress, defined in Section 

171(1) of the Clean Air Act to mean annual incremental reductions in emissions of the 

relevant air pollutant. The court’s analysis thus applies directly to the timeframe for 

attainment of the lead NAAQS: 

We agree with EPA that it is inconsistent with the statutory 

scheme to require attainment effectively by 2005 [three 

years ahead of the attainment deadline]. First, such a 

construction runs counter to the plain language of the Act, 

which sets the attainment date as November 15, 2007. 42 

U.S.C. § 7511(a)(1), (2). Indeed, given that clarity of 

statutory language, if there were in fact a conflict between 

the statute and EPA’s regulations, it would be the regulation 

that would have to yield and not, as petitioner would have it, 

the statute. See Chevron, 467 U.S. at 842-43, 104 S. Ct. 

2778. Second, other provisions of the Act envision 

incremental progress up until the attainment date, 

suggesting that Congress expected attainment by the 

attainment date and not sooner. See, e.g., § 7511a(c)(2)(B) 

(requiring at least three percent baseline emissions 

reductions each year up until the attainment date). 

369 F.3d at 207. SIP measures need not be implemented to achieve the ambient level 

required by the NAAQS until the attainment year of 2015 or 2016 (depending upon the 

SIP attainment designation date). We ask that EPA clarify its potentially conflicting 
38

positions with respect to the NAAQS-NESHAP compliance timeline and clearly state 

that the NAAQS measures need not be implemented to reach the ambient standard 

until the attainment year. 

F. EPA Improperly Reset MACT Floors Pursuant To The Clean Air Act §

 112(d)(6) Process 

The Proposed Rule’s revised and more stringent MACT standards for lead 

emissions are not properly founded in Clean Air Act § 112(d)(6). 

In NRDC v. EPA, 529 F.3d 1077, 1084 (D.C. Cir. 2008), the D.C. Circuit held that 

Clean Air Act § 112(d)(6) does not require EPA to recalculate MACT floors. Instead, 

EPA has discretion to balance relevant factors as part of revision emission standards 

“as necessary.” In relevant part, “necessary” means “being essential, indispensable, or 

requisite,” or “happening or existing by necessity.” Random House Dictionary (2011). 

Given the public health-oriented purposes of Clean Air Act § 112, what is necessary 

must also be measured in terms of effects on public health, or risk thereof. Moreover, 

as described above in the context of Clean Air Act § 112(f)(2)’s use of the term 

“required,” what is “necessary” must be considered in conjunction with controls that 

would be imposed independently on sources as part of the NAAQS-compliance 

processes. 

The Proposed Rule’s basis for revising the lead emission MACT floors pursuant 

to Clean Air Act § 112(d)(6) is that the Agency “believe[s] that these proposed revisions, 

identical to those proposed under CAA section 112(f)(2), are cost effective revisions that 

reflect the level of control achievable in practice by a well-performing fabric filter.” 76 

Fed. Reg. at 29,059-29,060. Whether a control is cost-effective and achievable is 

relevant to the availability of a particular control, but does not answer the antecedent 
39

question of whether or not imposing such control is necessary to protect public health or 

the environment in light of other legal requirements that the Clean Air Act applies to the 

secondary lead smelting industry. 

G. Data Quality Problems In Setting Emission Factors 

The Proposed Rule would change the definition of collocated blast furnace and 

reverberatory furnace “to apply to systems ‘where the vent streams of the furnaces are 

mixed before cooling,’” as a means of “clarify[ing] the intent of the original definition 

which was to establish the conditions under which a reverberatory furnace stream would 

control the emissions of a blast furnace stream.” See 76 Fed. Reg. at 29,063 (proposed 

to be codified at 40 C.F.R. § 63.542). The proposed change reduces the number of 

sources in the subcategory by eliminating sources that combine blast and reverberatory 

furnace exhaust after it is cooled. This reduction in the number of subcategory sources 

has direct implications for the MACT standards EPA has proposed to set in this 

rulemaking pursuant to Clean Air Act § 112(d). 

ABR and EPA worked collaboratively to identify a subset of industry stacks for 

emission testing intended to inform this rulemaking. In making its recommendations for 

the cross-section of furnace exhausts to test, the ABR sought to provide a 

representative subset of sources covering the various subcategories of sources. At no 

point in this process, however, did EPA suggest that it was considering redefining the 

collocated blast and reverberatory furnace subcategory. As a result of EPA’s 

unanticipated revision, only one collocated blast and reverberatory furnace exhaust that 

meets EPA’s revised definition, that at East Penn, was tested as part of the information 

collection for this rulemaking. Thus, the dioxin and furan emission limits for this 
40

subcategory of five collocated blast and reverb furnace pairs were based solely on 

emissions test data from a single facility. Establishment of emission limits based on a 

single unit is improper; as such data do not represent the average achieved by the bestperforming sources in the subcategory. Although EPA has solicited further testing, see

76 Fed. Reg. at 29,050, the Agency has not provided sufficient time during this public 

comment period for the collection and analysis of such data. See, e.g., EPA-HQ-OAR2011-0344-0076. EPA must wait until such data are received because, as discussed 

above, EPA is required to utilize information that it could “reasonably obtain.”

H. Toxic Equivalency Factors 

The Proposed Rule states that EPA TEQ emissions are “calculated using the 

toxic equivalency factors (“TEF”) outlined by the World Health Organization (WHO) in 

2005.” 76 Fed. Reg. at 29,051. Consistent with this statement, EPA should clarify the 

regulatory language proposed to be codified at 40 C.F.R. § 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/. 

I. Specific Emission Standards 

 EPA should correct a typographical error in Equation 2 of the regulatory 

language EPA proposes to codify at 40 C.F.R. § 63.543(c). The current definition 

includes the word “lead” in the definition of the equation term CELi. This equation is 

applicable to any Table 2 pollutant, such as THC, but is not applicable to lead. 

J. Startups, Shutdowns, And Malfunctions 

EPA should promulgate work practice standards for emissions during startups, 

shutdowns, and malfunctions (“SSM”), rather than requiring compliance with the 

proposed emissions standards during these events. 
41

In the Proposed Rule, EPA states that “[i]nformation on periods of startup and 

shutdown received from the industry in the ICR indicate that emissions during these 

periods do not increase.” 76 Fed. Reg. at 29,061. The secondary lead smelting 

industry ICR did not, however, require testing during SSM events. As such, EPA has 

not demonstrated that the best-performing units can achieve or have achieved the 

proposed MACT emission standards during SSM events. Moreover, the unpredictability 

and variability of emissions during SSM events makes measuring their emissions 

infeasible using current measurement methods, and EPA has not identified any feasible 

method for these measurements to be taken. The Agency should instead set a work 

practice standard of good combustion practices for SSM, rather than finalizing an 

emission standard that encompasses these events. 

K. Test Measures For Compliance 

 The Proposed Rule requires that periodic stack testing to determine compliance 

with the process vent emission limitations for lead be conducted using EPA Method 29. 

See 76 Fed. Reg. at 29,074 (proposed to be codified at 40 C.F.R. § 63.547(a)(5)). This 

requirement departs from the current NESHAP and most source category permits, 

which require that sources test for lead using EPA Method 12. EPA should expressly 

allow facilities the option of using EPA Method 12 to calculate compliance with the 

process vent emission limitations, to be consistent with those regular testing 

requirements that exist in facility permits. 

 Some commenters suggest that the Proposed Rule is ambiguous whether 

compliance must be determined on a monthly or annual basis. See EPA-HQ-OAR2011-0344-0080. The ABR understands the Proposed Rule as requiring that stack 
42

testing for lead is proposed to be conducted only on an annual basis. See 76 Fed. Reg. 

at 29,072 (proposed to be codified at 40 C.F.R. § 63.543(g)). In contrast, proposed 40 

C.F.R. § 63.543(a)(4) requires only that sources calculate monthly average emissions 

based on the results of the most recent annual stack tests. See 76 Fed. Reg. at 29,072. 

EPA should reaffirm that it is requiring testing on an annual basis. 

V. New Work Practices And Design Standards 

A. EPA’s Proposed Fugitive Dust Enclosure Standards And Work

 Practices Are Unsupported By Information In The Docket And Are

 Inconsistent With Clean Air Act § 112 

The Proposed Rule includes enclosure design standards and work practice 

standards for fugitive emission control.13 The proposed design standards require total 

enclosure of process fugitive sources, which are then vented to a control device, and 

the work practices include such activities as pavement cleaning and rooftop washing. 

See 76 Fed. Reg. at 29,072-74 (proposed to be codified at 40 C.F.R. §§ 63.544, 

63.545)). 

 While EPA claims that the “the total enclosure and work practice requirements” in 

the Proposed Rule “reflect[] the level of fugitive control achieved in practice by several 

facilities in this source category,” the Agency does not identify which facilities undertake 

all the design standards and work practices, nor is the ABR aware of any sources that 

currently undertake all of these design and work practice standards. Total enclosure 

may not even be possible or safe in tropical climates, such as for the TBRC facility in 

Arecibo, Puerto Rico. 

 EPA’s failure to include this information in the record makes the Proposed Rule’s 

 

13 To ensure consistent usage, the ABR will refer to the enclosure standards as “design 

standards” in its comments. 
43

design and work practice standards inconsistent with the legal requirements of Clean 

Air Act § 112. Design standards and work practices are governed by Clean Air Act § 

112(h), 42 U.S.C. § 7412(h). Where an emission standard is not feasible, “the 

Administrator may, in lieu thereof, promulgate a design, equipment, work practice, or 

operational standard, or combination thereof, which in the Administrator’s judgment is 

consistent with the provisions of subsection (d) or (f) of this section.” 42 U.S.C. § 

7412(h)(1) (emphasis added). EPA proposed the fugitive dust work practice standards 

under both Clean Air Act §§ 112(d)(6) and 112(f)(2). See 76 Fed. Reg. at 29,056, 

29,060. 

 Under Clean Air Act § 112(d), EPA must set MACT floor emission standards for 

industrial categories or subcategories that are the size of the secondary lead smelting 

industry on “the average emission limitation achieved by the best performing 5 sources 

(for which the Administrator has or could reasonably obtain emissions information) in 

the category or subcategory.” 42 U.S.C. § 7412(d)(3)(b). In order for the design 

standards and work practices to be consistent with Clean Air Act § 112(d)(2), they 

collectively must be undertaken by, or at least consistent with, the best performing five 

sources in the industry. It is not possible for EPA to form the judgment that the design 

and work practices in question are undertaken by, or at least consistent with, the best 

performing five sources in the industry, since that information is not in the docket. 

The design and work practice standards are not consistent with Clean Air Act § 

112(f)(2). EPA’s decision to set a Clean Air Act § 112(f)(2) standard is predicated on its 

decision that “fugitive dust emissions must be reduced such that ambient lead 

concentrations near the facility boundaries are below the lead NAAQS.” 76 Fed. Reg. 
44

at 29,056. This is an improper use of the NESHAP as a tool to require source-specific 

emission reductions necessary to comport with the NAAQS. Similarly, EPA cannot 

predicate a risk-based Clean Air Act § 112(f) emission standard for metal HAPs on 

compliance with the NAAQS absent a specific, factual determination by the 

Administrator that the designs and work practice standards collectively are necessary to 

meet Clean Air Act § 112(f)(2) public health criteria from the secondary lead smelting 

industry source category or subcategories. Further, because NAAQS-driven reductions 

in lead will address fugitive dust and consider the same work practices, these controls 

are not “necessary” and thus not authorized under section 112(d)(6) 

 Finally, EPA’s failure to include this information in the record contravenes Clean 

Air Act § 307(d). Rulemakings promulgating or revising NESHAP as part of a Risk and 

Technology Review are governed by the substantive and procedural requirements of 

Clean Air Act § 7607(d). See 42 U.S.C. § 7607(d)(1)(C). Clean Air Act § 7607(d), in 

turn, requires that the Agency summarize the factual data and methodology on which all 

aspects of a proposed rule are based at the time EPA publishes its notice of proposed 

rulemaking. See 42 U.S.C. § 7607(d)(3). The purpose of this requirement is to allow 

the public and interested parties to fully determine the impacts of a proposed rule, and 

to comment meaningfully on the proposed rule and its legal and factual predicates. 

 EPA’s failure to introduce information underlying the Proposed Rule’s design 

standards and work practices is prejudicial to the ABR because the Association cannot 

meaningfully comment on whether EPA has correctly described and transformed into 

proposed legal requirements the practices on which these proposed work practice 

standards are predicated. This is particularly the case because many of EPA’s 
45

proposed work practices appear to have numerous deficiencies, as discussed below, 

and because determining the availability of work practices at individual secondary lead 

smelters requires this information. 

 Finally, although the Southern California Air Quality Management District 

(“SCAQMD”) has issued a rule that requires sources to undertake some of the work 

practices that EPA has proposed to codify at 40 C.F.R. § 63.545 as means of complying 

with the lead NAAQS, EPA did not state that it was relying on the SCAQMD rule, nor did 

it introduce that rule or any administrative materials underlying its consideration into the 

record. 

 Introducing the record of the SCAQMD rule would have shown that it was 

potentially justified14 only in light of the unique local concerns in that area, to ensure 

NAAQS attainment in an area with specific climate issues that may be particularly 

conducive to fugitive dust transport and where there are several secondary lead 

smelters located on small parcels of land.15 

 For example, several of the proposed work practices require the application of 

large amounts of water to clean surfaces, or to regularly clean various surfaces. This 

requirement may make sense in Southern California, where meaningful rainfall events 

occur with low frequency, but is wasteful and unnecessary in areas elsewhere in the 

 

14 These comments do not endorse any view that the SCAQMD rules were properly 

justified. 

15 EPA’s selection of the SCAQMD’s NAAQS-compliance measures as work practice 

standards applicable to the secondary lead smelting industry underscores how EPA’s 

regulation of lead under Clean Air Act § 112 abrogates the ability of states to control 

lead emissions to attainment and maintenance of the lead NAAQS. The existence of 

the state rule pursuant to the NAAQS (and other states that are adopting their own 

approaches to achieving the NAAQS), further brings into question whether the revision 

is “necessary,” and thus whether EPA has the authority to revise the NESHAP in this 

respect. 
46

country, where rain or snow occurs regularly throughout the year. (In contrast to 

Southern California, the TBRC facility in Arecibo, Puerto Rico, experiences rainfall 

approximately 200 days of the year.) Similarly, the secondary lead smelters in the 

SCAQMD are comparatively large measured by output, but are located on 

comparatively small properties. This makes the SCAQMD’s work practices less 

burdensome for those sources (because there is less pavement to clean, for instance), 

and heightens the need for controls because fugitive dust is emitted closer to ambient 

air.16 

 In addition, EPA has no basis for concluding that the work practices that the 

SCAQMD required would be effective at all outside the specific conditions in that region, 

to the extent the SCAQMD rules were even justified there. The fugitive control 

measures became effective in December 2010, leaving insufficient time to draw any 

conclusions from ambient data that these measures have had any effect. The 

SCAQMD rules should be viewed as nothing more than the judgment of a local agency 

about measures it believes are necessary to achieve NAAQS attainment in light of 

specific local facility and climatological conditions. EPA may not, however, take them 

as a template for regulation nationwide without any analysis or information about their 

effectiveness and justification. 

 

16 EPA has historically interpreted the term “ambient air” not to include “the atmosphere 

over land owned or controlled by [a] source and to which public access is precluded by 

a fence or other physical barrier[].” Letter from Douglas Costle, EPA Administrator, to 

Jennings Randolph, Chairman, Committee on Environment and Public Works, United 

States Senate, (Dec. 19, 1980), available at http://www.epa.gov/scram001/guidance/ 

mch/ama4.txt.; see also Attachment to Memorandum from Stephen D. Page, Director, 

EPA OAQPS, to Regional Air Division Directors 3 (June 22, 2007), available at 

http://www.iowadnr.gov/portals/idnr/uploads/air. Therefore, industrial facilities located 

on small parcels of land are more likely to impact the quality of “ambient air” than are 

those located on larger parcels of land. 
47

B. The Proposed Fugitive Dust Work Practices Are Improper 

1. The Proposed Rule’s Fugitive Dust Work Practices Are Not

 Necessary To Comply With The NAAQS 

The Proposed Rule’s proffered basis for the work practice standards that the 

Agency has proposed to codify at 40 C.F.R. §§ 63.545(c)(1)-(c)(8) are that “these 

controls are necessary to ensure that three-month rolling average lead concentrations 

near the boundaries at all facilities in this source category do not exceed the lead 

NAAQS.” 76 Fed. Reg. at 29,056 (emphasis added). This rationale is incorrect, 

because several facilities meet the lead NAAQS at all monitors near their property 

boundaries without applying these measures. 

ABR members currently and regularly meeting the NAAQS at monitors near their 

property boundaries include Gopher Resource Corporation (MN), East Penn (PA), 

Revere Smelting and Refining (NY), and RSR (IN). The Revere (NY) and RSR (IN) 

facilities are monitored attainment areas for the 2008 lead NAAQS, and compliance is 

confirmed in the ambient monitoring data summarized in the docket. See EPA-HQOAR-2011-0344-0041. While both the Gopher (MN) and East Penn (PA) facilities have 

had occasional monitor results above 0.15 ug/m3

 on a three-month rolling average in 

2010, recent data indicate results remaining below that level. Specific measures 

proposed in section 63.545(c)(1) through (8) NOT being performed by these facilities 

include: 

 40 C.F.R. § 545(c)(2): None of these facilities cleans pavement with water 

at a rate equal to or greater than 0.48 gallons/square yard. 

 40 C.F.R. § 545(c)(3): Gopher Resource does not wash any of its building 

roofs. East Penn does not clean the roof over its battery breaker area. 

The Revere (NY) and RSR (IN) wash roofs only after conducting 

maintenance activities that might affect roof areas. 
48

 40 C.F.R. § 545(c)(5). The Revere (NY) and RSR (IN) facilities conduct 

formal documented inspections of battery storage areas only weekly, 

consistent with RCRA requirements. 

Given that these measures are not necessary for NAAQS attainment, it would be 

arbitrary and capricious for EPA to finalize them on that basis. All facilities in the 

industry have developed site-specific Standard Operating Procedures (“SOPs”) for state 

approval in order to address fugitive dust issues on a site-specific basis reflective of the 

characteristics of each facility. EPA should retain the current requirements for fugitive 

dust control set forth at 40 C.F.R. § 63.545, and allow individual permitting authorities to 

choose whether to implement those controls deemed necessary and appropriate in their 

SIPs. 

2. EPA Should Clarify Its Alternative Work Practice Equivalency

 Requirements 

 EPA should clarify its alternative work practice equivalency requirements to 

provide regulatory clarity for sources that wish to exercise their statutory right under 

Clean Air Act § 112(h)(3), 42 U.S.C. § 7412(h)(3), to engage in equivalent alternative 

work practices. 

 Demonstrating equivalent fugitive dust emissions will be difficult because they 

are not readily measurable and may not be regulated pursuant to an emission standard. 

See 76 Fed. Reg. at 29,038 (noting that “fugitive emissions . . . cannot be readily 

captured or directly measured.”). It could also be difficult because EPA’s standards are 

prescriptive and are not tied to any underlying standards of efficacy in reducing fugitive 

dust emissions. For example, EPA’s proposed work practice at 40 C.F.R. § 63.545(f) 

requires sources to apply water to pavement at rate of 0.48 gal/ square yard. EPA 

provides no basis for the specificity of this requirement. EPA’s proposed roof washing 
49

requirement at 40 C.F.R. § 63.545(c)(3) is not based on any record data regarding 

windborne accumulations of dust on roofs or on the degree to which periodic cleaning 

would reduce these unknown accumulations or their potential to become airborne. 

Absent clear criteria, sources could potentially have difficulty demonstrating 

equivalency. 

3. The Proposed Rule’s Specific Design And Work Practice

 Standards Are Impossible, Impracticable, Or Unnecessary 

a. Design Standards 

 The design standard that EPA proposes to codify at 40 C.F.R. § 63.544(a)(9) 

would require enclosure at negative pressure of all areas where “used fabric filters are 

handled or processed.” See 76 Fed. Reg. at 29,072. EPA should abandon this 

requirement as infeasible and unnecessary. 

 The first point at which used fabric filters are “handled” is upon removal from the 

baghouse cell, usually on a catwalk running along the side of the baghouse. It is not 

appropriate to require all such areas to be placed within total enclosures. Best practices 

in the industry when replacing fabric filters are to place the used filter bags in sealed 

plastic bags or other closed containers in the cell while the filters are being replaced, but 

prior to removing the used filters to the catwalk. This practice prevents the risk of 

windborne dust generation, rendering the installation of total enclosures for all areas 

where used fabric filters are handled unnecessary. EPA should thus replace the 

proposed 40 C.F.R. § 63.544(a)(9) with the following language: 

(9) Areas where dust from fabric filters, sweepings or used 

fabric filters are handled or processed outside of closed 

containers or in dry form. 

This proposed regulatory language is consistent with technical and supporting material 
50

in the docket. EPA’s cost analysis does not include the cost required to enclose all 

areas where used fabric filters are “handled,” such as the aforementioned catwalks, 

because of the Agency’s belief that “facilities that are currently achieving ambient lead 

concentrations at or near the lead NAAQS at or near their property’s boundaries are 

facilities that already have their processes totally enclosed.” See EPA-HQ-OAR-2011-

0344-0040, p. 8. In fact, these facilities have not enclosed the baghouses within 

ventilated total enclosures. 

 EPA should also revise its proposed definition of “material storage and handling 

areas” at 40 C.F.R. § 63.545(c)(6). See 76 Fed. Reg. at 29,073. Best practices in the 

industry include handling and transferring dust from fabric filters in enclosed screw 

conveyors to central processing and storage areas (feed tanks in battery breaker areas, 

bunkers in feed rooms, etc.) or to tanks in which the dust is slurried with water to be 

pumped to a central processing or storage area. In some cases, screw conveyors may 

transfer collected dust to closed drums or hoppers. As currently worded, the enclosure 

requirement proposed at 40 C.F.R. § 63.544(a)(9) would apply to handling of fabric filter 

dust in enclosed conveyors, containers, or in wet slurried form, which is unnecessary, 

not common practice in the industry, and which would greatly exceed the costs that the 

Agency estimated. The definition of “materials storage and handling area” should be 

modified to exclude the transfer of raw materials of any type in enclosed conveyors by 

replacing the proposed definition with the following language: 

Materials storage and handling area means any area of a 

secondary lead smelter in which lead-bearing materials 

(including, but not limited to, broken battery components, 

reverberatory furnace slag, flue dust, and dross) are stored 

or handled between process steps including, but not limited 

to, areas in which materials are stored in piles, bins, or tubs, 
51

and areas in which material is prepared for charging to a 

smelting furnace. Material storage and handling area shall 

not include any closed containers or enclosed mechanical 

conveyors. 

b. Velocity Requirements Redundant To Pressure

 Requirements 

 The Proposed Rule’s requirement of negative pressure on total enclosures is 

redundant and constitutes an unexplained departure from the Agency’s previous 

rejection of a similar requirement. EPA should retain the total enclosure performance 

specifications and associated monitoring requirements that are contained in current 40 

C.F.R. §§ 63.547(e)(1) and (e)(2) without modification. 

 Proposed 40 C.F.R. §§ 63.544(b)(1) and (b)(2) would require that total 

enclosures have 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. This requirement appears to confuse the requirements that are typical of 

enclosures that function as hoods for industrial hygiene ventilation purposes with total 

enclosures used to capture fugitive dust. Requiring both negative pressure and in-draft 

velocity is not appropriate for a process hood total enclosure, which is intended to 

perform initial “capture” of particles. For a process hood, principles of industrial 

ventilation would dictate a “capture velocity” to affect the redirection of particles leaving 

the process. The appropriate performance criterion is simply that airflow at the 

openings and doorways are inward, so as to allow the particles that have already been 

captured by the enclosure itself to be contained and swept into the exhaust system. 

 This is, in fact, the very structure associated with the total enclosure performance 

criteria in the current NESHAP for this industry. 40 C.F.R. § 63.547(e)’s current 

requirements allow a source to demonstrate either doorway in-draft or negative 
52

pressure. The Proposed Rule neither recognizes nor explains its departure from this 

requirement. See FCC v. Fox Television Stations, 129 S. Ct. 1800, 1811 (2009) 

(holding that “an agency must “display awareness that it is changing positions” for its 

decision to do so to be lawful) (emphasis in original); see also Atchison, Topeka & 

Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. 800, 808 (1973) (plurality) 

(stating that an agency has a “duty to explain its departure from prior norms”); Garvey v. 

NTSB, 190 F.3d 571, 585 n.21 (D.C. Cir. 1999) (“[T]he agency must (among other 

things) explain its change of course, and the new course must be neither arbitrary nor 

capricious.”). 

 Moreover, to the extent that EPA requires or allows in-draft, it should abandon its 

proposed specific minimum velocity. 40 C.F.R. § 63.547(e)(1)’s in-draft option requires 

only that in-draft be demonstrated, but does not require that in-draft be at a specific 

minimum velocity. That is, if measurements indicate any inward velocity, it is 

demonstrated that out-draft is not occurring and there are no emissions from that 

opening. Here, too, EPA has failed to recognize or justify its departure from EPA’s 

previous decision, refusing to finalize a proposal to require 250 ft/minute in-draft velocity 

in the original NESHAP proposal because such a “velocity requirement is excessive.” 

62 Fed. Reg. 32,209, 32,214 (June 13, 1997). 

EPA has similarly failed to justify its selection of the in-draft minimum velocity of 

300 feet/minute, which is significantly greater than the in-draft employed by most current 

secondary lead smelters. EPA’s Cost Impacts Analysis does not estimate costs for 

increasing the in-draft velocity at any existing total enclosure. See EPA-HQ-OAR-2011-

0344-0040. EPA’s inclusion of costs only for facilities to construct new enclosures 
53

implies that EPA believes that existing total enclosures are adequate without 

modification. Yet, a number of the existing total enclosures in this industry do not meet 

the proposed 300 feet per minute in-draft velocity requirement, and their modification to 

achieve 300 feet per minute would require substantial expenditures. 

c. EPA Should Eliminate Daily In-Draft Testing 

Requirements In Favor Of More Efficient Monthly 

Requirements 

EPA proposes that total enclosure doorway or opening in-draft velocity be 

measured and verified daily. See 76 Fed. Reg. at 29,077 (proposed to be codified at 40 

C.F.R. § 63.548(j)). This imposes an extensive administrative burden with minimal 

benefit. If EPA decides to require in-draft velocity, it should require such monitoring 

monthly to coincide with the monthly inspections of enclosure integrity proposed at 40 

C.F.R. § 63.544(c), as this would provide appropriate and sufficient surveillance. 

d. EPA’s Enclosure Monitoring Is Unsupportable

EPA should abandon its proposed regulatory language requiring the installation 

of negative pressure monitoring devices on total enclosures. See 76 Fed. Reg. at 

29,076 (proposed to be codified at 40 C.F.R. § 63.548(i)). 

The record contains no information demonstrating that the monitoring proposed 

at 40 C.F.R. § 63.548(i) will add any value or effectiveness beyond the negative 

pressure monitoring specifications given in the current NESHAP at 40 C.F.R. § 

63.547(e)(2). Moreover, EPA’s proposed regulatory language at 40 C.F.R. § 

63.548(i)(6), to require that each differential pressure monitoring system be equipped 

with a backup, uninterruptable power supply to ensure pressure drop monitoring during 

power outages, is unsupportable. 

In a malfunction condition resulting from a power outage, negative pressure 
54

would not be maintained and the pressure drop monitors would simply be measuring 

and documenting this known and predictable fact. There is no added value in requiring 

backup power supply to the differential pressure monitors serving total enclosures. This 

proposed measure increases costs and results in an additional burden. The same 

information could be obtained by requiring facilities to note periods when power has 

been lost to the ventilation fans such that negative pressure could not be maintained. 

e. Roof Washing Is Unnecessary And Dangerous 

 EPA should abandon the proposed regulatory language at 40 C.F.R. § 

63.545(c)(3), requiring cleaning of rooftops on a frequent basis. See 76 Fed. Reg. at 

29,072. This requirement is unnecessary, infeasible for numerous secondary lead 

smelters, and potentially dangerous. 

 As an initial matter, the record includes no information demonstrating any actual 

buildup of lead-bearing dust on roofs in the secondary lead smelting industry, nor does 

EPA explain why such hypothetical dust emissions would be predicted to become 

airborne and enter the ambient air beyond the property line. Even SCAQMD Rule 

1420.1, which requires roof washing, exempts sources from cleaning roofs in any 

subject month or quarter in which there has been measurable rainfall and when roofs 

have ice or snow present. See SCAQMD Rule 1420.1 (“Days of measurable 

precipitation . . . within the timeframe of a required cleaning may be counted as a 

cleaning”).17 

 

17 Although EPA has not expressly suggested that this part of the Proposed Rule is 

based on the SCAQMD requirements, the ABR notes that if such dust buildups do occur 

in Southern California, where meaningful rainfall events can be sometimes infrequent, 

there is no reason to believe that dust buildup occurs elsewhere in the country, where 

more typical precipitation patterns could be relied upon to remove any loose or 

potentially windborne dust from roofs. 
55

 The proposed roof washing requirement is not feasible or not necessary at all 

sources. For example, the Gopher Resource facility in Eagan, Minnesota, has roofs 

that are of membrane type with rock ballast and are not amenable to cleaning in the 

manner contemplated by the Proposed Rule. The TBRC facility in Arecibo, Puerto Rico, 

receives rainfall 200 days of the year, eliminating concerns about fugitive build-up on 

the roof. 

 Further, roof cleaning requires elevated work (either to manually conduct the 

regularly prescribed washing or to install piped washing systems). These activities 

subject workers to the risks inherent in any elevated work activity, and for no 

demonstrated benefit. Absent some demonstration of need for the measure, such as 

documented occurrences of dust buildup on roofs and release into the ambient air 

beyond the property boundary, EPA should abandon this aspect of its proposal. 

f. EPA Should Abandon The Wet Washing Requirement 

 EPA should abandon the proposed regulatory language at 40 C.F.R. § 

545(c)(2)(i) requiring that if a water-flushing wet sweeper is used to clean plant 

roadways, that sweeper must apply water at a rate of 0.48 gallons per water per square 

yard of pavement cleaned. See 76 Fed. Reg. at 29,073. 

 First, the proposed water application rate fails to take into account any sitespecific aspects including, but not limited to, the type of pavement material and local 

climate. East Penn, which is currently achieving ambient monitor results below 0.15 

ug/m3

 on a three-month-rolling average, estimates that its road scrubber applies 

approximately 0.05-gallons/square yard (an order of magnitude less than that proposed 

as a minimum). In fact, there is no evidence that equipment currently used could 
56

achieve a water application rate of 0.48-gallons/square yard, which is typically not 

designed for such high application rates. 

 Second, EPA provides no justification, nor does the record contain any 

documentation, supporting this minimum water application rate or what level of efficacy 

it is supposed to represent. Particularly for sources which receive significant 

precipitation, pavement washing would largely be irrelevant for reducing fugitives. 

 Third, EPA provides no environmental benefit analysis for this proposed 

measure. In specifying a very particular rate of water application to facility roadways, 

EPA is mandating a certain level of water consumption (and subsequent treatment and 

discharge) in order to address a perceived source of potential air emissions. That is, 

EPA is requiring a potentially adverse environmental impact (water resource treatment 

and consumption) without providing any analysis as to how the proposed environmental 

benefits outweigh the environmental burden in the other medium. 

Finally, it is infeasible for sources to apply water at exactly the precise rate of 

0.48 gallons per square yard. EPA presumably means to require application of at least

0.48 gallons of water per square yard, but does not use that terminology in its proposal. 

EPA should correct this error if it insists on maintaining this requirement (or specifies a 

different minimum application rate). 

 EPA should replace this aspect of the Proposed Rule with the requirement that 

pavement be periodically cleaned, leaving methods, and minimum water application 

rates, to individual facilities and, as relevant, their permitting authorities. EPA should 

further exempt pavement cleaning “on days when natural precipitation makes cleaning 

unnecessary or when sand or a similar material has been spread on plant roadways to 
57

provide traction on ice or snow.” 

g. EPA’s Requirements For Maintenance Activities Are

 Overly Prescriptive 

 EPA’s proposed requirements to prevent fugitive dust emissions during 

maintenance activities, when combined with the Proposed Rule’s expansive definition of 

“maintenance activities,” are overly prescriptive and would lead to adverse effects in 

many cases. See 76 Fed. Reg. at 29,073 (proposed to be codified at 40 C.F.R. § 

63.545(c)(7)). 

 The proposed definition of “Maintenance Activity” in Section 63.542 is ambiguous 

in regard to the listed activities and their regulatory status, whether or not they generate 

fugitive lead dust. The definition should be revised to remove this ambiguity to read: 

Maintenance activity means any of the following 

maintenance and repair activities when they generate 

fugitive lead dust: 

 The Proposed Rule’s requirement that all maintenance activities either be 

performed in a total enclosure, or within a partial or temporary enclosure with wet 

suppression and/or vacuuming, is potentially counterproductive. In the case of repair of 

an elevated ductwork leak, for example, the best response is to promptly patch, close, 

and repair the leak. A prompt response would prevent far more emissions than would 

the requirements of the Proposed Rule, which would allow the emission of fugitives until 

the source had installed a partial or temporary enclosure and/or mobilized water supply 

or vacuums. 

 The wide variety of specific facility configurations and potential maintenance 

scenarios (both planned and unplanned) call for far less prescriptive requirements. As 

with the example scenario described above and others, facilities should be allowed to 
58

exercise judgment in implementing maintenance practices that best reduce emissions. 

Facilities should not be required to follow the requirements of proposed section 

63.545(c)(7), if the delay in conducting the maintenance to allow mobilization and 

implementation of the requirements would reasonably be expected to lead to more 

emissions than would be prevented by the prescribed control measures. Finally, EPA 

should clarify that once an item (including pavement) has been cleaned, its 

maintenance or repair is not subject to the requirements of proposed section 

63.545(c)(7). 

4. EPA Has Not Adequately Explained The Purported Emission

 Benefits Of Its Proposed Work Practice Standards 

 EPA has not adequately explained the emissions benefits of the proposed work 

practice requirements (proposed to be codified at 40 C.F.R. § 63.545(c)(1)-(8)). See 76 

Fed. Reg. at 29,060, 29,073. Although EPA says such measures are cost-effective and 

estimates an emissions reduction of 4.2 tons of HAP emissions annually, neither the 

cost effectiveness results nor the supporting Draft Cost Impacts for the Secondary Lead 

Smelting Source Category (“Draft Cost Impacts”), see EPA-HQ-OAR-2011-0344-0040, 

support such benefits for these measures. Indeed, it appears that EPA lacks any 

legitimate basis for its estimate. 

 The Draft Cost Impacts estimates the total reduction in fugitive metal HAPs in the 

aggregate, inclusive of the proposed total enclosures, at 9.5 tons per year. The ABR 

was unable to locate any documentation in the record explaining how EPA derived an 

estimate of 4.2 tons per year attributed specifically to the work practices as a portion of 

the total 9.5 tons per year. The estimate of 9.5 tons of total fugitive emissions reduction 

matches the total estimate of fugitive lead EPA estimated in Table 5-1 of the Draft 
59

Development of the RTR Emissions Dataset for the Secondary Lead Source Category 

April 1, 2011 (“RTR Emissions Dataset”), EPA-HQ-OAR-2011-0038. Accordingly, the 

ABR assumes that the underlying basis of the anticipated total aggregate fugitive 

emissions reduction of 9.5 tons per year in the Draft Cost Impacts is based on the 

emission estimates in the RTR Emissions Dataset. EPA’s apparent reliance on this 

total aggregate fugitive emissions reduction estimate in relation to EPA’s suggestion 

that 4.2 tons per year of that total can be attributed to the proposed work practice 

requirements is incorrect for two reasons. 

First, EPA’s methodology to calculate the 9.5 tons per year total estimate is 

wrong. EPA derived this estimate by scaling up for the entire industry estimates of 

fugitive emissions for Exide’s Frisco, Texas secondary lead smelter. As explained in 

detail in Part III.C.2, EPA’s estimates of fugitive emissions for the Frisco facility are 

mistaken and its methodology for estimating fugitive emissions is unsound. 

Second, regardless of the validity of the Exide Frisco fugitive emissions 

estimates, those estimates cannot constitute a basis for an EPA estimate of fugitive 

emissions reduction benefits of the proposed work practice requirements. This is 

because the Exide Frisco emissions estimates do not contain estimates of emissions for 

many of the activities that the proposed work practice requirements are aimed at 

addressing, such as re-entrainment of dust from roofs, accidental releases, or 

maintenance activities. Accordingly, EPA lacks a reasonable basis to assert that the 

work practice requirements designed to control emissions from those activities would 

achieve any particular emissions reduction. For example, the proposed 40 C.F.R. § 

63.545(c)(3) requirement for roof surface cleaning has very definite costs and risks to 
60

workers, but we can find no data or analysis in the record showing that emissions of 

dust from facility roofs are actually occurring, much less quantified. EPA therefore has 

no basis to demonstrate the cost effectiveness of such measures. 

C. Alternative Design Standards 

1. Legal Issues Related To Alternative Design Standards 

In lieu of design standards requiring total enclosure of process fugitive emission 

sources, EPA proposed alternative design standards that do not require a full enclosure, 

but that instead require less stringent enclosure standards, coupled with an ambient airmonitoring requirement. See 76 Fed. Reg. at 29,073 (proposed to be codified at 40 

C.F.R. § 63.544(d)). Although the ABR supports allowing regulated facilities to comply 

with EPA’s design and work practice standards through alternative means, and supports 

in principal EPA’s proposed alternative design standards, EPA should revise the 

alternative design standards to better comport with the Clean Air Act’s text and to 

resolve ambiguities contained in the proposal (specifically adopting the language ABR 

suggests below). 

First, EPA should include a provision similar to that proposed to be codified at 40 

C.F.R. § 63.545(f), 76 Fed Reg. 29,074, reaffirming regulated facilities’ statutory right to 

seek approval of alternative measures that are equivalent to design standards and 

alternative design standards proposed by EPA. The Proposed Rule does not explain 

why EPA has not included such a provision, and Clean Air Act § 112(h) provides source 

owners and operators with a statutory right to propose alternative standards any time 

EPA promulgates a requirement governed under that section: 

If after notice and opportunity for comment, the owner or 

operator of any source establishes to the satisfaction of the 
61

Administrator that an alternative means of emissions 

limitation will achieve a reduction in emissions of any air 

pollutant at least equivalent to the reduction in emissions of 

such pollutant achieved under the requirements of 

paragraph (1), the Administrator shall permit the use of such 

alternative by the source for purposes of compliance with 

this section with respect to such pollutant. 

42 U.S.C. § 7412(h)(3). EPA should clarify that its proposed alternative design 

standards do not preclude a regulated entity from offering alternative design standards 

that meet this criterion. 

 Second, EPA need not require installation of additional monitors to assess 

whether ambient air concentrations in the vicinity of secondary lead smelters will 

register values below a 3-month rolling average value of 0.15 μg/m3

, as set forth in the 

lead NAAQS. In the lead NAAQS rulemaking, the Agency carefully considered where to 

place monitors, see 73 Fed. Reg. 66,996, 67,025-67,029 (Nov. 12, 2008), and even 

reconsidered its monitoring requirements, see 75 Fed. Reg. 81,126 (Dec. 27, 2010). 

Having already carefully considered this issue, any special purpose monitors or SLAM 

that have been placed near a secondary lead smelter for the purpose of determining 

NAAQS attainment should be sufficient for the purposes of EPA’s alternative design 

standards. Moreover, it would be unduly burdensome to require sources and/or 

permitting authorities to establish additional monitors for NESHAP-compliance 

purposes, when this parallel monitoring network already exists. 

 Third, EPA incorrectly suggests that the alternative design standards it proposes 

could cause the lead NAAQS to be an emission standard for certain secondary lead 

smelters. This position is predicated on the Proposed Rule’s statement that the term 

“emission standard” in Clean Air Act § 112 must be the same as the definition in Clean 

Air Act § 304(k): 
62

The proposed lead concentration in air alternative appears to 

be an “emission standard,” as required by section 112(f)(2), 

since it “limits the quantity, rate, or concentration” of lead—to 

the level of the NAAQS at a location of maximum 

exposure—albeit compliance with the standard is measured 

by means of ambient monitoring. CAA section 302(k). 

76 Fed. Reg. at 29,056 n.26. But Clean Air Act § 302(k)’s definition of “emission 

standard” is not compatible with Clean Air Act § 112’s use of the term. For example, 

Clean Air Act § 302(k)’s definition of “emission standards” expressly includes “any 

design, equipment, work practice or operational standard promulgated under this 

chapter. 42 U.S.C. § 7602(k). In contrast, Clean Air Act § 112(h) only allows EPA to 

promulgate a work practice, design, or equipment standard where “it is not feasible . . . 

to prescribe or enforce an emission standard.” Clean Air Act § 112(h)(1). This 

provision would make no sense if design, equipment, or work practice standards were 

already “emission standards.” 

 Additionally, the Proposed Rule recognizes that fugitive dust emissions from the 

secondary lead smelting industry are not measurable and may not be regulated 

pursuant to an emission standard. See 76 Fed. Reg. at 29,038 (noting that “fugitive 

emissions . . . cannot be readily captured or directly measured.”). Having concluded 

that fugitive dust emissions are not sufficiently susceptible to measurement to allow an 

emission standard, EPA may not also transform the ambient monitoring requirement 

accompanying its alternative design standards into emission standards. 

 Even under the reasoning of the proposed rule, however, the alternative design 

standards would not lead to emission standards applicable to the lead smelting industry. 

The NAAQS is an “ambient air quality standard” set at a level “requisite to protect the 

public health” and/or “public welfare.” 42 U.S.C. §§ 7409(b)(1), 7409(b)(2). By 
63

definition, a NAAQS may only be set for a criteria pollutant, which is emitted by 

numerous sources, and is nowhere limited to emissions from a particular source 

category. See 42 U.S.C. 7408(a)(1)(B). In contrast, Clean Air Act § 112(f)(2) refers 

only to “promulgat[ing] of standards for [a] category or subcategory.” 42 U.S.C. § 

7412(f)(2)(A). The impropriety of establishing the NAAQS as an emission standard 

under Clean Air Act § 112 is underscored by the fact that emissions from nonsecondary lead smelting industry sources could lead to NAAQS non-attainment events 

at sources that undertake alternative design standards, regardless of the standards 

“promulgate[d] . . . for [a] category or subcategory” under Clean Air Act § 112(f)(2). 

 It would also be inappropriate to consider the lead NAAQS as an emission 

standard for the secondary lead smelting industry, because lead NAAQS values are 

affected by other sources and by background lead concentrations. For example, the 

Exide Reading, Exide Frisco, and the East Penn secondary lead smelters are located 

within close proximity to lead oxide manufacturing or lead acid battery manufacturing 

sources that emit lead and would affect the ambient values even at property line 

monitors. 

 While monitored NAAQS values should not constitute an emission standard 

under Clean Air Act § 304(k), these values should be available for EPA and sources to 

consider in assessing “equivalency” between the Proposed Rule’s design standards and 

any alternative design standards contained in the Proposed Rule or otherwise 

suggested by a source owner or operator. The issue of equivalency is discussed at 

greater length in Part IV.B.2. 

 Fourth, EPA should confirm that under the Proposed Rule’s alternative design 
64

standards, monitored NAAQS exceedances would not constitute a violation of the Clean 

Air Act that could lead to civil or criminal liability under Clean Air Act § 113. The specific 

regulatory language of the Proposed Rule states that a facility that opts into the 

Agency’s alternative design standards 

must install compliance monitors on or near the plant 

property boundary, at locations approved by the 

Administrator, to demonstrate that the lead concentration in 

air is at all times maintained below a 3-month rolling average 

value of 0.15 μg/m3 at each monitor . . . 

76 Fed. Reg. at 29,073 (proposed to be codified at 40 C.F.R. § 63.544(d)(1)). Under 

this language, the only action that a facility is required to take with regard to monitoring 

is to “install compliance monitors on or near the property line, at locations approved by 

the Administrator.” The provision that a source “demonstrate that the lead 

concentration in air is at all times maintained below a three-month rolling average value 

of 0.15 μg/m3 at each monitor” is not a requirement that a source which opts into the 

alternative design standards must meet, but instead as a means of verifying that the 

alternative standards are having the effect intended by EPA. 

 EPA should also specify the actions that a facility that selects the alternative 

design standards must undertake in the case of an exceedance of the three-month 

rolling average value of 0.15 μg/m3

. Given that exceedances registered by an ambient 

air monitor may be caused only by emissions from non-secondary lead smelting 

sources, the ABR suggests that EPA not require sources to abandon their alternative 

design standards and require total enclosures, but instead to report the exceedance to 

the relevant permitting authority (whether state or EPA) so that the permitting authority 

can determine what additional steps may be necessary, such as requiring where 

appropriate RACT on the secondary lead smelter or some other entity. 
65

 Finally, EPA should clarify that a source that opts initially for a total enclosure or 

alternative design standards may switch between these two means of compliance. The 

Proposed Rule does not expressly address this possibility, but the ABR believes that 

there is no reason to restrict this operational flexibility, so long as the health-based 

goals of Clean Air Act § 112(f) are met.18 This is particularly the case in light of Clean 

Air Act § 112(h)(3), which should allow secondary lead smelters to propose alternative 

work practices and design standards, and which statutory right would be restricted if 

EPA were not to allow sources to switch between the proposed and alternative design 

standards. 

2. Proposed Regulatory Language For Alternative Design

 Standards 

Without prejudice to the ABR’s position that EPA need not and should not include 

any additional design or work practice standards beyond those which are currently 

required in 40 C.F.R. Part 60, Subpart X, the ABR proposes that EPA replace the 

proposed regulatory language at 40 C.F.R. § 63.544(d)(1)-(d)(8) with the following 

language to address the specific issues the ABR identified in the alternative design 

standards:19

(d) As an alternative to the requirements specified in paragraphs (a) through (c)

 of this section, you can elect to demonstrate compliance by meeting the

 requirements of (d)(1) through (d)(4) of this section. 

 (1)(i) You must ensure that there are at least two (2) monitors on or near 

 the plant property boundary, at locations approved by the Administrator 

 consistent with the relevant sitting criteria at 40 C.F.R. Part 58, to 

 demonstrate that the lead concentration in air is at all times maintained 

 below a 3-month rolling average value of 0.15 μg/m3

 at each monitor. This 

 

18 As a practical matter, sources are unlikely to dismantle process fugitive enclosures 

once they have been installed. 

19 ABR’s proposed regulatory language is without prejudice to the legal infirmities with 

the Proposed Rule, as described elsewhere in these comments. 
66

 requirement may be satisfied by existing SLAM or special purpose 

 monitors used by the Administrator (or delegated State, local or Tribal 

 authority) to assess attainment or maintenance of the NAAQs. 

 (ii) You must notify the Administrator (or delegated State, local or Tribal 

 authority) of any exceedances of the 3-month rolling average value of 0.15 

 μg/m3 at any monitor installed and operated pursuantto paragraph 

 (d)(1)(ii) of this section. 

 (2) You must control the process fugitive emission sources listed in 

 paragraphs (d)(2)(i) through (d)(2)(vi) of this section in accordance with 

 the equipment and operational standards presented in paragraphs (d)(3) 

 through (d)(8) of this section. 

 (i) Smelting furnace and dryer charging hoppers, chutes, and skip hoists. 

 (ii) Smelting furnace lead taps, and molds during tapping. 

 (iii) Smelting furnace slag taps, and molds during tapping. 

 (iv) Refining kettles. 

 (v) Dryer transition pieces. 

 (vi) Agglomerating furnace product taps. 

 (3) Process fugitive emission sources must be equipped with an enclosure 

 hood meeting the requirements of (d)(3)(i), (d)(3)(ii), or (d)(3)(iii) of this 

 section. 

 (i) All process fugitive enclosure hoods except those specified for 

 refining kettles and dryer transition pieces must be ventilated to 

 maintain a face velocity of at least 90 meters per minute (300 feet per 

 minute) at all hood openings. 

 (ii) Process fugitive enclosure hoods required for refining kettles must 

 be ventilated to maintain a face velocity of at least 75 meters per minute 

 (250 feet per minute). 

 (iii) Process fugitive enclosure hoods required over dryer transition pieces 

 must be ventilated to maintain a face velocity of at least 110 meters per 

 minute (350 feet per minute). 

 (iv) Ventilation air from all enclosure hoods must be conveyed to a 

 control device meeting the applicable requirements of § 63.543. 

 (4) As an alternative to paragraph (d)(3)(iii) of this section, you may elect 

 to control the process fugitive emissions from dryer transition pieces by 
67

 installing and operating pressurized dryer breaching seals at each 

 transition piece. 

 (5) For the battery breaking area, partial enclosure of storage piles, wet 

 suppression applied to storage piles with sufficient frequency and quantity 

 to prevent the formation of dust, and pavement cleaning twice per day. 

 (6) For the furnace area, partial enclosure and pavement cleaning twice 

 per day. 

 (7) For the refining and casting area, partial enclosure and pavement 

 cleaning twice per day. 

 (8) For the materials storage and handling area, partial enclosure of 

 storage piles, wet suppression applied to storage piles with sufficient 

 frequency and quantity to prevent the formation of dust. 

(e)(1) As an alternative to the requirements specified in paragraphs (a) 

 through (d) of this section, you can demonstrate to the Administrator (or 

 delegated State, local, or Tribal authority) that an alternative measure(s) is 

 equivalent or better than a practice(s) described in paragraphs (a) through (d) of 

 this section. 

 (2) Any source that opts to make an equivalency determination pursuant 

 to the requirements of (e)(1) of this section may do so by demonstrating 

 that measures taken at and design features of the source, including 

 without limitation its current or proposed Standard Operating Procedures, 

 will not cause any monitor established by the Administrator (or delegated 

 State, local, or Tribal authority) near the source to exceed the 3-month 

 rolling average value of 0.15 μg/m3

. 

(f)(1) Any source that opts to demonstrate compliance by meeting the

 requirements of (d)(1) through (d)(4) of this section may, after notifying the

 Administrator (or delegated State, local, or Tribal authority), choose to meet the

 requirements specified in paragraphs (a) through (c) of this section. 

 (2) Any source that meets the requirements specified in paragraphs (a) 

 through (c) of this section may elect to demonstrate compliance by 

 meeting the requirements of (d)(1) through (d)(4) of this section in 

 accordance with the requirements of those paragraphs. 

D. Other Work Practices 

1. EPA Should Not Impose Work Practices For Mercury 

The ABR supports EPA’s reasoning and conclusion that no work practice 

requirements for mercury are appropriate or necessary for the secondary lead smelting 
68

industry. See 76 Fed. Reg. at 29,051. Such requirements are unnecessary and 

infeasible. 

Moreover, the ABR does not believe that the data it submitted to EPA during the 

ICR testing process reliably confirm that mercury is actually emitted by the secondary 

lead smelting industry. Mercury was not detected at all in 68% of the samples, and was 

at approximately detect levels in the remainder of the results. It may well be that the 

detected presence of mercury is erroneous or is the result of environmental or testing 

factors that are unrelated to the secondary lead smelting industry’s emissions. 

2. EPA Should Eliminate Its Proposed Plastic Separation

 Requirement 

 EPA should abandon its proposal to require that facilities “operate a process to 

separate plastic battery casing materials prior to introducing feed into a blast furnace.” 

See 76 Fed. Reg. at 29,072 (proposed to be codified at 40 C.F.R. § 63.543(k)). 

Contrary to the Proposed Rule, this practice is not currently undertaken in the industry, 

is infeasible, and is unnecessary. 

 The stated basis for the Proposed Rule’s plastic separation requirement is that 

“all facilities currently have a plastics separation process (that they implement on a 

voluntary basis) so this proposed requirement results in very minimal additional costs to 

the industry, if any.” See 76 Fed. Reg. at 29,051. In fact, the ABR’s members do not 

separate plastic from battery case materials generally. Instead, the members’ existing 

facilities operate a separation process at their battery breakers to separate 

polypropylene battery case material as a valuable recyclable commodity. Not all spent 

lead acid batteries are amenable to separation, however. Most of the ABR members 

process certain battery types, such as small sealed-lead-acid batteries and certain 
69

industrial lead-acid batteries, which are fed intact into a facility’s blast furnace without 

ever passing through the facility’s battery breaker. It is infeasible to separate the plastic 

from these batteries because they are either too small or too large to be broken by the 

automated battery breaking equipment, which is designed to accommodate automotive 

batteries. 

 The Proposed Rule’s plastic separation requirement is also unnecessary 

because the Proposed Rule overstates the risk of the pollutants it is designed to help 

control—dioxins and furans. As discussed in detail supra, the health risks from dioxin 

and furan emissions from this industry are overstated, and even when overstated, do 

not provide a measurable increment in risk over background risks. There is, therefore, 

no justification for imposing additional work practice standards directed at reducing 

dioxin and furan emissions beyond the stack emission limits that would be imposed in 

proposed section 63.543(b). 

VI. Other Issues 

A. EPA Should Not Require The Use Of Continuous Emission Monitors 

EPA should abandon its proposal to require new and modified sources to employ 

continuous emission monitoring systems (“CEM”). 

As discussed above, this rulemaking is governed by the procedural requirements 

of Clean Air Act § 307(d), which require that EPA include sufficient information in its 

notice of proposed rulemaking, and in the docket, for the ABR and the general public to 

comment meaningfully on the proposed rule and its legal and factual predicates. EPA 

has not set forth a Performance Specification for lead CEM. There is no way for the 

ABR or any other stakeholder to meaningfully assess such systems and their potential 
70

applicability to the secondary lead smelting industry absent such Performance 

Specification. If EPA were, at some later date, to finalize an appropriate Performance 

Specification for CEM technology to monitor lead emissions, EPA could propose to 

include CEM for the secondary lead smelting industry in due course consistent with the 

requirements of Clean Air Act § 112 and subject to the procedural requirements of the 

Administrative Procedure Act and/or Clean Air Act § 307(d). 

Moreover, EPA’s analysis of technological feasibility for CEM is inadequate. 

None of ABR’s members employ that technology in practice, and the ABR has no 

reason to believe that the assured technology will be sufficiently sensitive and robust to 

provide reliable data on emissions for secondary lead industry stacks. The Proposed 

Rule’s purported analysis of feasibility does not address these technological issues in 

any way: 

We do not believe that use of a lead CEM to meet the flowweighted average of 0.2 mg / dscm poses issues of 

feasibility, even though our present data for the source data 

comes from stack tests rather than continuous 

measurements. This is because so many sources are 

achieving levels considerably less than 0.2 mg / dscm in 

their performance tests. 

76 Fed. Reg. at 29,056 n.25. In other words, EPA’s feasibility rationale is that even if 

the CEM do not work, it will not be a problem because EPA expects that secondary lead 

smelters would meet the proposed lead emission standards. This rationale is not 

sufficient to support a CEM requirement, particularly because an inaccurate monitor 

could suggest that ABR’s members are potentially liable for significant penalties for 

allegedly violating a Clean Air Act § 112 emissions standard, and for the legal fees 

commensurate with defending against such a claim. 

Moreover, the record contains no cost information for CEM, nor does it suggest 
71

that EPA has considered the cost of CEM. See, e.g., EPA-HQ-OAR-2011-0040, EPAHQ-OAR-2011-0041 (EPA cost documents that do not include figures for CEM). EPA 

must assess cost-effectiveness in light of Clean Air Act § 112(f)(2)(A)’s mandate that 

the Agency consider “costs, energy, safety, and other relevant factors.” See 42 U.S.C. 

§ 7412(f)(2)(A) (emphasis added). And cost-effectiveness is a factor EPA expressly 

considers in setting standards pursuant to Clean Air Act § 112(d)(6). See, e.g., 76 Fed. 

Reg. at 29,059. Absent reliable information about the costs of CEM, EPA lacks 

sufficient information to form a reasoned decision to require CEM. 

Although EPA did not include cost information on the record, the ABR 

understands that there is only one vendor of CEM for lead, Cooper Environmental 

Services, LLC, which apparently markets the technology through Pall Corporation 

(“Cooper”). Cooper has informed the ABR that CEM cost approximately $400,000 per 

stack to install. This is an extreme cost that would potentially be multiplied many times 

over as facilities in this industry typically have 7-8 stacks. The ABR further believes that 

the price of lead CEM could rise dramatically if EPA requires that sources use 

technology offered by only one company. 

This cost would be potentially imposed despite the absence of any discussion in 

the record justifying the need for advances in monitoring and surveillance on stack 

sources in this industry. Both the current NESHAP and the Proposed Rule require 

application of bag leak detection systems (“BLDS”) to provide assurance that stack 

emissions remain well controlled between periodic stack tests. There is no indication in 

the record to indicate that this BLDS technology is inadequate. This is particularly the 

case where EPA itself has concluded that fugitive emissions are the primary driver of 
72

risk from the industry, rather than process vent emissions. 

Finally, it would be arbitrary and capricious for EPA to adopt the CEM 

requirement before the Performance Specification for its operation is determined. An 

agency must “articulate a satisfactory explanation for its action” and cannot “entirely 

[fail] to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n v. State 

Farm Mut. Auto.Ins. Co., 463 U.S. 29, 43 (1983). EPA cannot determine in advance 

whether or not a lead CEM would be effective and would reliably monitor emissions as 

required under this rule until the Performance Specification is finalized. 

The comments that Cooper has submitted in support of EPA’s proposed CEM 

requirement are flawed and do not provide support for EPA’s proposal. See EPA-HQOAR-2011-0344-0079, EPA-HQ-OAR-2011-0081. Despite being the only vendor of this 

technology, Cooper includes no data in its comments from CEM stack systems, the 

focus of EPA’s request for comments. For example, Cooper provides no data regarding 

sensitivity, accuracy, or drift of such instruments from which to judge whether CEM 

would be suitable at the levels of stack emission concentration being achieved by 

secondary lead smelters. Cooper’s comments are instead rife with irrelevant and 

incorrect information. 

The Cooper comments primarily concern continuous ambient monitors, which 

were not proposed by EPA. For example, figures 1 and 2 in the comments concern 

ambient data, not the type of stack emission data that would be collected by lead CEM. 

Cooper does not identify the location at which the referenced data were collected or 
73

even whether the facility is in the United States.20 Figure 1 is either erroneous or 

misleading. The highlighted “outlying” data represents a concentration of 60 ng/m3, but 

the scale on the figure and its legend suggest a concentration of less than 45,000 

ng/m3. If the value is, indeed, 45,000 ng/m3, that would be a concentration of 45 ug/m3 

which is not 40% of the Pb NAAQS but rather 300 times greater than the Pb NAAQS. 

Figure 1 is, thus, irrelevant to secondary lead smelters in the United States, which 

rarely, if ever, cause ambient concentrations near this magnitude. 

Other data Cooper provides is erroneous. Cooper claims that so-called 

“fumigation events” would be “of particular concern if the EPA promulgates an emission 

limit of 1 mg/dscm per individual stack, since a single two-hour fumigation exposure at 

one tenth this limit would approach the monthly NAAQS.” EPA-HQ-OAR-2011-0344-

0081, p. 6. This claim is invalid on its face—the Pb NAAQS for lead is not a monthly 

standard, it is a three-month rolling average standard. Moreover, Cooper’s suggestion 

that emissions near the1 mg / dscm stack concentration limit would approach the 

NAAQS wholly ignores the dispersion of pollutants between stack and ambient 

receptors. If Cooper actually wished to prove this claim, it would need to submit air 

quality dispersion modeling to disprove EPA’s modeling suggesting that the emissions 

at the 1 mg/dscm stack concentration limit would not interfere with attainment or 

maintenance of the NAAQS. 

Nor does Cooper specify the cost of its CEM technology, despite apparently 

being the sole vendor of this technology (through its partnership with Pall). Rather than 

including any figures on which EPA could base a finding of cost-effectiveness, Cooper 

 

20 The only identifying information provided for Figure 1 is that the data purportedly 

comes from a primary lead smelter. No such identifying information is provided for 
74

simply asserts that the concern over cost is simply that CEMs might have to be installed 

on multiple stacks. EPA-HQ-OAR-2011-0344-0081, p. 7. This claim is incorrect—ABR 

has concerns about the cost and cost-effectiveness of even a single CEM in light of the 

fact that stack emissions are not the driver of risk from secondary lead smelters. 

Cooper’s claim that secondary lead smelters could be redesigned and modified 

to reduce the cost of CEM technology by creating fewer emission points is a baseless 

case of the “tail wagging the dog.” Cooper provides no cost data for its claim that “the 

costs to duct emissions to a common stack should not be too high, particularly in 

comparison to the cost of monitoring all stacks individually.” EPA-HQ-OAR-2011-0344-

0081, p. 8. Cooper similarly provides no evidence that re-routing emissions to fewer 

emission points is technologically feasible at any individual facilities, provides no 

evidence that doing so is consistent with good engineering practices, and fails to 

consider the permitting implications of doing so. 

Cooper’s claim that “[i]f the current EPA reluctance to require CEMS is 

promulgated, secondary lead smelters may act to minimize pollution control costs by 

distributing their emissions to a large number of emissions points, which is exactly 

opposite to what we all know should be done.” EPA-HQ-OAR-2011-0344-0081, p. 8. 

Cooper’s claim that the secondary lead smelting industry would act in bad faith to 

attempt to circumvent an EPA emission standard is unfortunate in light of the secondary 

lead smelting industry’s strong history of diligent compliance with its legal obligations. 

Even if circumvention were possible in some industries by distributing emissions 

to additional emission points, it makes no sense in this case. Stack emissions from the 

secondary lead smelting industry are regulated on a concentration basis, not based on 

 

Figure 2. 
75

a mass emission rate. Unlike with a mass emission rate, increasing the number of 

emission points would have no effect on lead emission concentrations; it would just 

distribute the same concentration to more emission points. 

Finally, Cooper’s attempt to address concerns about the lack of a Performance 

Specification for lead CEM is insufficient. EPA-HQ-OAR-2011-0344-0081, p. 8. 

Performance Specifications constitute legislative rules and, as such, are properly 

promulgated through notice and comment rulemaking processes. Cooper suggests that 

Other Test Method 16 (“OTM 16”) would be appropriate as a performance standard, but 

OTM 16 has not been validly promulgated for this purpose and any attempt to apply it 

would be unlawful. 

 Finally, Cooper’s comments about multi-metal CEM are irrelevant. EPA-HQOAR-2011-0344-0081, p. 7. EPA neither proposed multi-metal CEM nor requested 

comment on their applicability. 

B. EPA Should Retain The Exemption From Bag Leak Detection For

 Baghouses With Secondary HEPA Filters 

EPA should abandon its proposal to require that BLDS be installed on 

baghouses that are fitted with secondary HEPA filters. See 76 Fed. Reg. at 29,067. 

EPA made the considered decision in the current NESHAP to exempt baghouses with 

secondary HEPA filtration from the BLDS requirement: 

The EPA acknowledges that some baghouses are equipped 

with HEPA filters, which act as a secondary filter, and that 

these secondary filters may provide protection against bag 

leaks. The EPA also agrees that the use of a bag leak 

detector on such a system would likely provide little if any 

additional protection. 

62 Fed. Reg. at 32,214-15 (June 13, 1997). EPA proposes removing this exemption 

with no discussion or rationale presented explaining why the Agency has changed its 
76

position, or even recognizing that the Agency is changing its position. EPA should 

abandon this aspect of the Proposed Rule. 

C. EPA Should Allow Three Years For Compliance 

EPA should exercise its discretion under Clean Air Act § 112(h) to provide a 

three-year period for compliance with the revised secondary lead industry NESHAP for 

existing sources, rather than the two-year period currently set forth in the Proposed 

Rule. 

Under Clean Air Act § 112(i), EPA has authority to provide up to a three-year 

compliance period for any standard or regulation for the control of HAP from existing 

sources: 

After the effective date of any emissions standard, 

limitation or regulation promulgated under this section

and applicable to a source, no person may operate such 

source in violation of such standard, limitation or regulation, 

except, in the case of an existing source, the Administrator 

shall establish a compliance date or dates for each category 

or subcategory of existing sources, which shall provide for 

compliance as expeditiously as practicable, but in no event 

later than 3 years after the effective date of the standard, 

except as provided in subparagraph (B) and paragraphs (4) 

through (8). 

42 U.S.C. § 7412(i)(3)(A) (emphasis added). 

 EPA did not address Clean Air Act § 112(i)’s applicability to the Proposed Rule. 

Instead, the Agency relied on its legislative rule published at 40 C.F.R. § 63.6(i)(4)(ii), 

which states that ‘‘‘the owner or operator of an existing source unable to comply with a 

relevant standard established . . . pursuant to section 112(f) . . . may request that the 

Administrator grant an extension allowing the source up to 2 years after the standard’s 

effective date to comply with the standard.’” 76 Fed. Reg. at 29,064 (quoting 40 C.F.R. 

§ 63.6(i)(4)(ii)). EPA then proposed two years for compliance as a matter of course 
77

because the Agency “is already fully aware of the steps needed for each source to 

comply with the proposed standards and to reasonably estimate the amount of time it 

will take each source to do so.” 76 Fed. Reg. at 29,064. The Proposed Rule’s 

explanation of its decision to allow only two years for compliance is not correct. 

 Clean Air Act § 112(i)’s application is mandatory, not permissive. Congress used 

the word “any” in defining Clean Air Act § 112(i)(3)(A)’s applicability, which in the Clean 

Air Act is a signal that the phrase that follows (“any emissions standard, limitation or 

regulation promulgated under section”) must be construed broadly. See, e.g., New York 

v. EPA, 443 F.3d 880, 885 (D.C. Cir. 2006). A broad construction of Clean Air Act § 

112(i)(3)(A) mandates that this section, and the Administrator’s discretion for extension, 

apply to all regulations under Clean Air Act § 112, including standards promulgated 

under subsections (d) or (f). 

 In contrast, 40 C.F.R. § 63.6(i)(4)(ii) applies only to emission standards set by 

EPA pursuant to Clean Air Act § 112(f) as part of the risk review governed by that 

subsection. While EPA’s proposed revised emission standard for lead is a Clean Air 

Act § 112(f) standard, the design and work practice standards for fugitive emissions are 

also Clean Air Act § 112(d)(6) standards, see 76 Fed. Reg. at 29,060, and the emission 

standards for THC (other than from blast furnaces) and dioxins and furans are wholly 

new standards set pursuant to Clean Air Act § 112(d)(3), without consideration of the 

factors set forth in subsection 112(f)(2), see 76 Fed. Reg. at 29,058. 

 Moreover, 40 C.F.R. § 63.6(i)(4)(ii) is best read as comporting with this reading of 

the Clean Air Act. That subsection allows “extension[s]” for a source that is “unable to 

comply with a relevant standard established under this part pursuant to section 112(f) of 
78

the Act . . .” A source cannot be out of compliance with a standard whose date has 

been deferred pursuant to Clean Air Act § 112(i), however, because by definition the 

standard with which compliance is in question would not have legal force and effect. 

A two-year compliance schedule is insufficient for the implementation of this rule. 

EPA estimates facility capital expenditures for compliance with this rule are estimated to 

be on the order of $5 to $10 million for a number facilities. See EPA-HQ-OAR-2011-

0344-0040. The ABR believes this figure understates the actual cost of compliance, but 

even if it is correct, expenditures of this magnitude are substantial and present a 

significant burden for a small, generally privately controlled industry. 

Design and installation of the controls set forth in the Proposed Rule, particularly 

installing total enclosures in facilities that do not currently contain them and that were 

not designed to accommodate them, is not simply a matter of “throwing up a building” 

over the involved processes. Designs must consider efficient movement of material 

between processing steps and, most importantly, the indoor work environment both 

from a lead concentration and heat standard. Only after this is done can facilities 

estimate construction costs, receive approval for capital expenditures, and obtain 

financing. Construction must also be carefully staged around the process equipment. It 

is likely that large enclosures could only be constructed during scheduled periodic 

maintenance downtime for at least some of the involved processes. These are often 

scheduled at least six months apart. Accordingly, it is not realistic to assume that 

facilities will be able to comply with the new rule during a two-year compliance 

schedule. 

 Most secondary lead smelting industry sources are also facing obligations to take 
79

additional measures to assure attainment of the 2008 lead NAAQS during the time 

period that overlaps with this NESHAP implementation. Facilities require time to 

determine the degree to which these obligations overlap in order to develop coherent 

design and construction plans. 

 Finally, EPA is engaging in numerous actions that affect other industry sources, 

including Boiler MACT, Utility MACT, and the other RTR actions to which EPA 

committed in Sierra Club v. Jackson, No. 09-cv-00152 SBA (N.D. Cal.) (lodged July 6, 

2010), where the Agency agreed to sign final NESHAP rules for approximately thirty 

different source categories roughly contemporaneous with this rulemaking. These 

actions will increase the cost of compliance by increasing the demand for construction 

services, and will also make certain limited and necessary resources, such as tower 

cranes and skilled workers, more difficult to obtain. 

D. New And Modified Sources 

1. EPA Should Change The Term “Modified Source” To

 “Reconstructed Source” 

 The Proposed Rule uses the term “modified source” without providing sufficient 

clarification about that term’s meaning. The ABR requests that EPA replace its use of 

the term “modified source” with “reconstructed source,” as defined in 40 C.F.R. § 63.2. 

 Neither the Proposed Rule nor EPA’s general Part 63 regulations (which are 

incorporated in large part into the Rule) define the term “modified source.” The term 

“modification” is defined in Clean Air Act §§ 112(a)(5), -112(g), but that definition would 

apply the “maximum achievable control technology emission limitation under this 

section for existing sources” to any major source that is modified. 42 U.S.C. § 

7412(g)(2)(A). Were this definition applicable, it would be contrary to Clean Air Act § 
80

112, because it would impose a “new source” requirement like CEM on a modified 

source rather than appropriately imposing the existing source provision that does not 

require installation of CEM. If EPA does not wholly abandon its proposed CEM 

requirement, the Agency should delete the Proposed Rule’s reference to “modified 

sources” and substitute the term “reconstructed sources.” 

2. EPA Should Clarify That The “Affected Source” Is The

 Secondary Lead Smelter As A Whole 

 EPA should clarify that the “affected source” for purposes of the secondary lead 

NESHAP is all secondary lead smelter operations at a given facility, rather than 

individual pieces of equipment or emissions points. 

 The Proposed Rule uses the terms “new sources,” “existing source,” and 

“modified source” without clarifying whether it is referring to secondary lead smelters 

generally, or to potential emissions sources within secondary lead smelters. For 

example, the Proposed Rule suggests that “new sources” will be subject to “a limit of 

0.20 mg / dscm appli[cable] to all individual stacks at the facility,” whereas “existing 

facilities” are subject to “a facility-wide, flow-weighted average lead concentration limit of 

0.20mg / dscm” and “a maximum lead concentration limit of 1.0 mg / dscm to apply to 

any individual stack.”21 

 In the Proposed Rule, EPA states in response to the question “what are the 

affected sources” that it anticipate[s] “that the 14 secondary lead smelting facilities 

currently operating in the United States will be affected by these proposed 

amendments.” 76 Fed. Reg. at 29,064. The ABR understands this statement to be a 

 

21 The applicability of this provision is unclear, as EPA did not propose regulatory 

language that would create separate process vent lead emission standards for new and 

existing sources. See 76 Fed. Reg. at 29,056. 
81

proposed finding pursuant to 40 C.F.R. § 63.2’s provision that “[e]ach relevant standard 

will define the “affected source,” that the affected source is all secondary lead smelting 

operations at a given facility. The ABR requests that EPA confirm this understanding in 

the final rule, particularly given the existing language at 40 C.F.R. § 63.541(a) that 

defines affected sources differently. 

 EPA should further clarify that the addition of the addition of “stacks” at a facility 

does not constitute the addition of “new sources” at a facility, thus triggering the lead 

CEM requirement for at least that new stack. In particular, the ABR anticipates that a 

number of new ventilation systems, baghouses, and stacks may well be added at 

existing facilities in this industry in order to reach attainment with the 2008 lead NAAQS 

and/or to comply with the Proposed Rule. These new systems would provide additional 

capture and control of emissions from existing sources of process fugitive and/or 

fugitive dust emissions.