# 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.comi I. Introduc tion .......................................................................................................... 1 II. The Proposed Rule Fails To Consider Sources In The Risk And Technology Review And In Setti ng And Resetting MA CT Floors ........................ 2 III. Risk And Tec hnology Re view.............................................................................. 5 A. EPA Improperly Conducted Fac ility-Wide Risk Assessments................... 5 B. EPA’s Risk Review Is Incorrect Because The Agency’s Fugitive Estimations Are Unre liable and In correct.................................................. 7 C. Risk Review Procedur es......................................................................... 11 1. EPA Departed From Its Risk Assessment Guide lines.................. 11 2. EPA’s Risk Assessment Is Predicated On An Overestimation Of Dioxin And Fur an Emissi ons ................................................... 12 3. EPA’s Risk Review Me thodology Is Unsound .............................. 13 a. EPA Considers Risk To Hypothetical, Not Actual, Populati ons........................................................................ 13 b. EPA Overestimates The C ancer Incidence For People Living Near Sec ondary Lead Smel ters .............................. 15 4. Risk And Toxici ty Factors............................................................. 15 a. Dioxin And Arseni c Background Risks .............................. 15 b. EPA Should Not Use The Ca lifornia 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 Proces s..................................................................... 29 D. EPA Must Consider NAAQS-M andated Emissions Reductions in NESHAP Anal yses ................................................................................. 31 E. EPA Should Clarify the Timeline for NAAQS and NESHAP Implementat ion ....................................................................................... 35 F. EPA Improperly Reset MACT Floors Pursuant To The Clean Air Act § 112(d)(6) Pr ocess ................................................................................ 38 G. Data Quality Problems In Setting Emissi on Factors ............................... 39 H. Toxic Equival ency Fact ors...................................................................... 40ii I. Specific Em ission St andards .................................................................. 40 J. Startups, Shutdowns , And Malfun ctions ................................................. 40 K. Test Measures For Compli ance.............................................................. 41 V. New Work Practices And Design Standards ..................................................... 42 A. EPA’s Proposed Fugitive Dust Enclosure Standards And Work Practices Are Unsupported By In formation In The Docket And Are Inconsistent With Clean Air Ac t § 112 ..................................................... 42 B. The Proposed Fugitive Dust Work Practices Are Impr oper..................... 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 R equirement s .......................................................... 48 3. The Proposed Rule’s Specif ic Design And Work Practice Standards Are Impossible, Impracticable, Or Unnecessary ......... 49 a. Design Standards .............................................................. 49 b. Velocity Requirements Redundant To Pressure Requirem ents.................................................................... 51 c. EPA Should Eliminate Daily In-Draft Testing Requirements In Favor Of More Efficient Monthly Requirem ents.................................................................... 53 d. EPA’s Enclosure Monito ring Is Unsup portable.................. 53 e. Roof Washing Is Unne cessary And Dangerous ................ 54 f. EPA Should Abandon The Wet Washing Requirement..... 55 g. EPA’s Requirements For Maintenance Activities Are Overly Pre scripti ve ............................................................ 57 4. EPA Has Not Adequately Explained The Purported Emission Benefits Of Its Proposed Work Practice St andards...................... 58 C. Alternative De sign St andards ................................................................. 60 1. Legal Issues Related To Al ternative Desi gn Standards ............... 60 2. Proposed Regulatory Language For Alternative Design Standards ..................................................................................... 65 D. Other Work Practice s.............................................................................. 67 1. EPA Should Not Impose Work Practices Fo r Mercury ................. 67 2. EPA Should Eliminate Its Proposed Plastic Separation Requirem ent ................................................................................ 68 VI. Other Issues ...................................................................................................... 69iii A. EPA Should Not Require The Use Of Continuous Emission Monitors.................................................................................................. 69 B. EPA Should Retain The Exempti on From Bag Leak Detection For Baghouses With Secondar y HEPA F ilters .............................................. 75 C. EPA Should Allow Three Years For Co mplianc e .................................... 76 D. New And Modi fied Sour ces..................................................................... 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 Smelte r As A Wh ole.......................................... 801 I. Introduction The Association of Battery Recyclers, In c. (“ABR” or “the Association”) is a national trade association that has represented the lead recyc ling industry for more than twenty-five years. Members of the ABR include battery m anufacturers, lead chemical manufacturers, lead fabricators, secondar y lead smelters, and consultants and vendors to the lead recycling industry. The l ead recycling industry members of the ABR collectively represent virtually all of the lead recycling capacit y 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 “Propos ed Rule”). The ABR’s comments are timely filed by the date provided in the National Emission Standards for Hazardous Air Pollutants: Secondary Lead Smelting; Extens ion of Comment Period, 76 Fed. Reg. 38,591 (July 1, 2011). As set forth in these comments, the Proposed Rule is f undamentally flawed:

 The Proposed Rule has significant data quality problems arising from its failure to consider relevant data and it s 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 a nd work practice standards. In light of the totality of these er rors, the EPA should conclude the Risk and2 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 smel ter 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 achiev able control technology (“MACT”) floors. EPA’s failure to consider these emi ssions fundamentally undermines the Proposed Rule, and EPA should issue a separate Info rmation Collection Request (“ICR”) to TBRC and publish a supplemental notice of proposed ru lemaking 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 le ad smelting industry “in order to provide an ample margin of safe ty to protect public health in accordance with this section . . . or to prevent, taking in to consideration costs, energy, safety, and other factors, an adverse environmental effec t.” 42 U.S.C. § 112(f)(2). In so doing, EPA must determine whether “standards promul gated 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 pr ovisions, EPA has interpreted the scope of its RTR as requiring the Agency to cons ider effects from t he source category and subcategories on the most exposed individual s, which necessitate s correctly defining the source category. Cons ideration 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 Ai r 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 bes t performing 5 sources (for which the Administrator has or could reasonably obtain emissions information) in t he category or subcategory for categories or subcategories wit h 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 prio r to publication of the Prop osed Rule, EPA was aware of TBRC. In June 2011 alone, EPA publicly announced that it had reached agreement with the company regarding lead transport fr om the facility and issued “second round”4 nonattainment designations for the lead prim ary national ambient air quality standards (“NAAQS”) for the air quality mana gement district covering Arec ibo, Puerto Rico. Given its knowledge of and relationship with TB RC, there is no question that EPA “could reasonably obtain” information about that facilit y, or could have done so in the past. EPA’s failure to execute this obligation c ontravenes the plain text of Clean Air Act § 112(d)(3). TBRC’s emissions profile likely will affe ct the MACT floors fo r 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 wh ich EPA has set separate emission standards contain even fewer members. The MACT fl oor 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 rever beratory furnaces. See EPA-HQ-OAR-2011-0344-0042. The rotary furnace at the Revere facility processes primarily, if not excl usively, reverberatory furnace slag as its feed material. In contrast, it is ABR’s understanding that t he 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 mu ch more similar to the feed mixes used at other rotary furnaces. Thus, in formation 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 in formation. Clean Air Act § 114 allows the Agency to “require any person who owns or oper ates any emission source . . . to . . . sample such emissions” “[ f]or the purpose [] of devel oping or assisting in the development of . . . any emission st andard under section 7412.” 42 U.S.C. § 7412(a)(1)(C). Stakeholders can only be assu red that emissions information that TBRC submits to EPA will be calculated using t he same methodology that ABR’s other members provided to the Agency if TBRC subm its it in response to a Clean Air Act § 114 request. It is absolutely critical fo r 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 proce ss, the ABR will not have legally sufficient notice of precisely how the Agency would inco rporate it into its RTR or how EPA will use it to recalculate potentially the MACT floor s for THC and dioxins and furans. The ABR intends to analyze this information and to subm it comments on it, so failure to issue a supplemental notice of proposed rulemaking w ould 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 F acility-Wide Risk Assessments EPA’s risk review was conducted in violat ion of Clean Air Act § 112(f)(2) because it considered risks that were caused by s ources or entities that are not part of the secondary lead smelting industry categories or subcategories.6 Clean Air Act § 112(f)(2) charges the Ad ministrator with promulgating revised standards only where doing so is necessary to protect public health or the environment from emissions by source categor ies or subcategories as a whole: [Under certain appropriate circum stances], the Administrator shall, within 8 years afte r 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 wit h 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 nec essary) 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 possibl e human carcinogen do not reduce lifetime excess cancer ri sks 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) (emphas is 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. 3 870 (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 t he entire facility at which the covered7 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 smelti ng industry, and promulgate risk-based standards for risks that are not attributable to its emi ssions. Similarly, by proposing emission standards that are “predicated on individual s ources emitting lead at levels that would result in ambient concentrations less than t he primary lead NAAQS, ” 76 Fed. Reg. at 29,063, EPA is improperly cons idering background ambient l ead concentrations in its risk analysis. EPA has requested comment on the relat ed 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 info rmation 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 Inco rrect 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 acknowle dges 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 c onsider 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-s ource 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 appr opriate 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, Ex ide Technologies’ facility in Frisco, Texas. EPA estimates fugitive emissions from other facilities through a “factoring” approach that compares these facilities to Ex ide Frisco on the basis of a series of housekeeping practices or process fugiti ve enclosures that EPA suggests, without explanation, control overa ll fugitive dust emissions. See EPA-HQ-OAR-2011-0344- 0038. After the ABR learned that EPA was cons idering this approach, it expressed its concerns that the methodology was too imprec ise to calculate emissions properly and that the Exide Frisco facility was not select ed 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 estimati on 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 t he Agency to significantly overestimate emissions. EPA estimates that the Exide Frisco facility emit s 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 lead9 compound fugitive emissions on its 2009 Toxic Release Inventory (TRI) Form R report. In its ICR survey response, Exide brok e this value down and assigned component fugitive values for various emission processe s. In so doing, Ex ide included emissions from its blast and reverberat ory furnaces in a single wo rkbook 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 revie wing the data Exide submitted. Rather than using Exide’s reported blast and reverber atory fugitive emissions, EPA scaled from .296 tpy up to 0.32 tpy on the unsubstantia ted 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 fur nace fugitives that could occur only when the associated process furnaces were operating. After overstating the fugitive emissi ons, EPA then double-counted the fugitives by assigning a value of 0.32 tpy to fugiti ves 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 Inventor y report. Correcting the erroneous value of 1.03 tpy of fugitives from t he Exide Frisco facility with the ICR survey value of 0.7 tpy would reduce the estimates from all the ot her facilities by approximately one-third. 3 Moreover, EPA’s factoring approach fo r estimating fugitive emissions is methodologically unsound. As the Agency explained in the Draft Development of the10 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 thre e 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 fa cilities 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 emi ssion rate for each facility. In factoring this variable across the indus try, 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 degr ee of enclosure had their fugi tive 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 conc luded 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 difficu lt to quantify. Effe ctively, 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 accordi ng to the following formula: (1 – 0.7/1.03)11 determined that it reasonably estimated “actual fugitive emissions fr om these facilities partly due to the findings that the available ambient monitori ng 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 calc ulating fugitive emissions, it would be irrational for EPA to simply correct the specific errors that ABR identifi ed in this proposal and then claim that its methodology is accept able. Instead, EPA should reconsider its approach for estimating fugitive emissions, determine a correct and methodologically sound way to estimate fugiti ve 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 exceedanc e of the lead NAAQS into a hazard index (sometimes referred to in the record and ABR’s co mments 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 indice s for lead based on the estimated maximum three-month rolling average air lead leve ls divided by the lead NAAQS. RTR Document, p. 2. EPA calculates this fi gure without regard to age. The lead NAAQS was quantitatively based only on risks to yo ung 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 m ade this decision in the RTR Document because the Agency concluded that the l ead NAAQS would also reduce risk to adolescents and adults. It does not follow, how ever, that the lead NAAQS provides the basis for an appropriate hazard index calc ulation for adolescents and adults. The resulting hazard indices presented on Tables A-5 through A-8 of t he 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 e rror without correcting it: The demographic noncancer resu lts for lead are presented in Table 2 as "Population wit h Ambient Lead Concentrations Exceeding the NAAQS," rather than as population with HI greater than 1, because lead co ncentrations were compared to the NAAQS rather than to a reference concentration. RTR Document, p. 8. Nevertheless, the RTR Document is inte rnally inconsistent because the hazard index calculations are presented in the appendi x tables. All references to a hazard index or HI for lead should be elimi nated 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 commensur ate 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 m illion (based on Laotian angl ers 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 Se condary Lead Smelting Source Category states that the emissions estimate for dioxins and fur ans from the Exide Frisco facility used as an input 4.26E-06 tons/year on a Toxic E quivalency 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 subm itted 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 fur nace 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 it s multipathway risk assessment exist, and should revise its risk a ssessment accordingly.14 EPA states in the Human Health Multipathway Resi dual Risk Assessment for the Secondary Lead Smelting Source Category , EPA-HQ-OAR-2011-0344-0 037, that it did not evaluate whether the expo sed populations were indeed pr esent in the areas that were modeled for the multipathway risk a ssessment. For example, the highest risks found in the multipathway risk assessment are for Laotian anglers at Lewisville Lake near the Exide Frisco facility. Census stat istics indicate that t he Laotian population in this part of Texas is very small, report ed 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 extremel y small Laotian population in this area, it is incumbent on EPA to demonstr ate that there are ac tually Laotian anglers who consume fish from Lewisville Lake. EPA’s multipathway risk assessment al so erred in its estimate of fish concentrations in Silver Lake. EPA focus ed 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 compar ed to the other nearby water bodies. But EPA also noted that Silver Lake is too small to support fish ing unless it is stocked regularly. Stocking reduces the exposure period for fish and decr eases expected fish tissue concentrations relative to lakes where fish are not sto cked. 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 ar e not provided when “the selected race, ethnic, or ancestry group has a populat ion of less than 100 wit hin the selected15 b. EPA Overestimates The Ca ncer Incidence For People Living Near Secondary Lead Smelters EPA’s Draft Residual Risk Assessment for t he Secondary Lead Smelting Source Category overestimates cancer incidence for populat ion 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 estima ted by multiplying es timated 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 c ancer 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 anal ysis 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 relianc e on its risk review in revising the NESHAP, is invalid because it fails to consi der the actual reduction in dioxin and arsenic risks to nearby exposed populations that w ould occur with the use of the proposed additional controls. Additional controls on di oxin or arsenic emissions from secondary lead smelters will result at most in minima l reductions in individuals’ lifetime cancer risks. There is, therefore, little risk r eduction and little benefit to public health from

geography.”16 dioxin and arsenic emissions that would result from the Pr oposed Rule’s control

measures. The Proposed Rule states in its ample ma rgin of safety analysis that the MIR based on a Laotian angler to dioxin is great er than 1 in 1 million, the threshold for consideration of additional controls. In order to determine whether EPA’s proposed additional controls would meaningfully addr ess this risk, the ABR has compared the dioxin concentrations and risks associated with the secondary smelter industry as estimated in the Proposed Rule to backgrou nd 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 fur ans 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-revi ew/. The Proposed Rule’s methodology for estimating dioxin and fur an risks constitutes an unexplai ned, and therefore arbitrary and capricious, departure from the backgrou nd 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 Revised 6 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) μ g/g [dry weight] 4.30E-10 6.23E-12 3.55E- 12 Sediment 3.4E-06 Untilled Surface Soil in Farm_N μ g/g [dry weight] 3.60E-08 5.22E-10 1.00E-1 0 Soil 9.3E-06 1.3E-06 Tilled Surface Soil in Farm_N μ g/g [dry weight] 1.70E-09 2.46E-11 1.58E -12 6.5E-07 As shown above, modeled dioxin concentra tions for the secondary smelters are between one and several orders of m agnitude lower than EPA’s measured and modeled concentrations in the Dioxin Reas sessment. Dioxin emissions from these smelters produce a contribution to the envir onment that is not distinguishable from background concentrations. Even if the sec ondary smelters were viewed as providing an increment of dioxin in additi on to dioxin present from other sources, this increment is so small that it is not measurable. Moreover, any reduction in risk to an i ndividual will resu lt 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 dioxin18 EPA similarly failed to compare estima ted arsenic risks associated with the secondary smelters to background risks. The Proposed Rule concludes that the maximum individual lifetime inhalation canc er risk “could be up to 50-in-1 million, with fugitive dust emissions of ars enic . . . 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/m 3

. 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 ri sk for the secondary smel ters. EPA’s failure to consider this information, and to dem onstrate how arsenic emissions from the secondary lead smelting industry would affect t he extant risk from arsenic, is necessary for the risk review to suppor t 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 RE L for arsenic to assess acute arsenic risks associated with emissions from the secondary lead smelters, because this standard is invalid and substantially over-est imates acute risks from arsenic exposure. EPA should instead either not attempt to qu antify acute arsenic risks, or it should correct the CalEPA acute REL by increasing it by, at a mini mum, 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/m 3 is based on Nagymajtenyi, L, A. Selypes, G. Berensci. 1985, Chromosomal Aberrations and Feto toxic 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 As 2 O 3 for 4 hours per day on gestation days 9 through 12, at As 2 O 3 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/AppendixD 1_final.pdf - page=2. OE HHA identified 0.26 mg/m 3 As 2 O 3 (0.197 mg/m 3 As) as a lowest-observed-adverse -effect-level (“LOAEL”), based on a 3.7% decrease in fetal body weight. At th is concentration there were no significant effects on either malformations or chromo somal aberrations. OEHHA then divided this LOAEL by a total safety factor of 1,000, to account for use of a LO AEL rather than a noobserved-adverse-effect-level (NOAEL), and for inter- and intra-species variability. Ultimately, the California agency de rived an acute REL of 0.2 μg/m 3

. As an initial matter, the California REL is void ab initio because the Nagymajtenyi study on which it relied was not conducted a ccording to current r egulatory guidelines. For developmental toxicity studies, such as this one, fetal effects must be evaluated on a litter basis, as there may be litter effect s that are independent of the effects of the exposure. Nagymajtenyi did not evaluate t he 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 ar senic exposure. Although the decreased fetal weight was statistically signifi cant on the basis of the fetus, this small20 decrease may not have been significant if it had been properly evaluated on a litter basis. In a similar rat developmental toxicitystudy 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, mo rtality, or resorptions, were observed at As 2 O 3 concentrations of 10 mg/m 3 (8 mg/m 3 as As) or less. See Holson, J.F., et al. 1990, Absence of Prenatal Deve lopmental Toxicity from I nhaled Arsenic Trioxide in Rats. Toxicol. Sci. 51:87-97 (“ Attachment E ”). The Holson study exposed pregnant rats to As 2 O 3 for 6 hours per day, beginning 14 days prior to gestation and continuing through gestation day 20. The predominant expo sure-related effect in this study was rales 7 , which was observed in the dams at As 2 O 3 concentrations of 10 and 25 mg/m 3

. The NOAEL for this study was 3 mg/m 3 (2.3 mg/m 3 as As). The absence of developmental effects at concentrations caus ing effects in the dams is consistent with results from other developmental toxicity st udies 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 As 2 O 3. , the California acute REL is approximately 100 time s 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 hi gher than that for As 2 O 3 . It is also anomalous that despite the greater toxicity of arsine, there was no evidence of developmental toxicity in either ra ts or mice at concentrations up to 2.5 ppm (~ 8 mg/m 3 ), in a study conducted by the National Toxicology Program. See R.E. Morrissey et al., Arsine: Absence of dev elopmental toxicity in rats and mice. Fundam Appl Toxicol (1990); 15:350 (“ Attachment G ”). Even if there were some validity to t he California REL—which there is not—the state’s selection of the 0.26 mg/m 3 as a LOAEL is erroneous and dramatically overstates arsenic risks. It is inconsist ent with and would constitute a departure from EPA’s practice, which has considered a fe tal weight reduction of 0.1 g (3.5 g vs . 3.6 g, or 2.8%) to be not toxico logically 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 inconsis tent with the ATSDR’s guidance, 8 which deems 0.26 mg/m 3 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 gu idance and EPA’s practice, and treated the arsenic concentration of 0.2 mg/m 3 from this study as a NOAEL, that, together with the use of appropriate uncertainty fa ctors, would yield an REL of 2  g/m 3 , which is an order of magnitude hig her than the current California RE L. 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 rulema king disagree with EPA’s use of census block centroids to estimate chronic risk fo r 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 es timated the MIR associated with each facility by purporting to determi ne the risk associated with a lifetime of exposure at the highest concentration out side the property boundary, however. EPA made this calculation independen t 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, t here would be no information from which to estimate population risks. Similarly, some commenters have sugges ted 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 wit h 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 concentra tion limit based on allowable emissions). That said, EPA should have conducted its risk review by considering only actual emissions from the secondary le ad 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 emissi ons under Clean Air Act § 112(f)(1) is to23 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 me thodology 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 Elementa l Lead As A HAP In Violation Of Clean Air Act §§ 112(b)(2) And 112(b)(7) EPA has requested comments on “the interp lay between implementation of the primary lead NAAQS and t he 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 setti ng 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 list ed source categories. See 42 U.S.C. § 7412(b)(1). “Lead Compounds” are listed under subs ection 112(b)(1), and the statute’s use of compounds is “defined as including any unique chem ical substance that contains the named chemical (i.e., antimony, arseni c, etc.) as part of that chemical’s infrastructure.” 42 U.S.C. § 7412(b)(1). At the same time, however, Congress unam biguously expressed its intent that EPA not regulate criteria pollutants generally , and elemental lead specifically, through24 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 cons trued 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 spec ial treatment in the Clean Air Act, providing a separate and uniqu e 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’ prohibi tion against treating lead as a hazardous air pollutant should extend even further than the general prohi bition against listing criteria pollutants under Clean Air Act § 112, and unambiguously dem onstrates Congress’ intent that the NESHAP program not provi de for duplicative regulati on of elemental lead. Clean Air Act § 112(b)(1), and Clean Air Act §§ 112(b)(2) and 112(b)(7), are easily reconcilable: regulatio n of unique chemical substanc es that are lead compounds

9 See, e.g. , 40 C.F.R. § 50.12 (“Nat ional primary and secondary ambient air quality standards for lead and its compounds, measur ed 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 arit hmetic 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 c ubic meter, maximum arithmet ic mean averaged over a calendar quarter.”); 40 C.F.R. § 50.16(a) (“The national pr imary 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, meas ured in the ambient air as Pb . . . .”).25 for their individual toxicity and health effe cts is permissible, but general regulation of lead compounds as a surreptitious means of es tablishing restrictions on elemental lead emissions or lead compounds generally for t heir elemental lead-based toxicity may not be countenanced. This readi ng honors the Clean Air Act’s decision to list lead compounds as HAP in subsection 112(b)(1), wh ile also preserving Congress’ intent to maintain SIP primacy in requiring elemental lead controls through subsections 112(b)(2) and –(b)(7). It is also cons istent 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 imper atives underlie Congress’ decision not to allow regulation of criteria pollutants, like elemental lead, th rough Clean Air Act § 112, and its preference for preserving the NAAQS implem entation regime through the States for criteria pollutants. The purpose of listing a pollutant under Clean Air Act § 108(a) is to assist in “establishing nati onal primary and secondary ambi ent air quality standards.” 42 U.S.C. § 7408(a)(1). Substances ma y only be listed under Clean Air Act § 108(a) under specified conditions, in cluding where “the presence of [the substance] in the ambient air results from numerous or diverse mobile or stationary s ources.” 42 U.S.C. § 7408(a)(1)(B). Once the NAAQS are est ablished, states implement compliance measures to meet them thr ough state implementation plans (“SIPs”), which compile the state’s laws, regulations, and enforcement standards for complying with the NAAQS26 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 preven tion . . . at its source is the primary responsibility of States and local govern ments.” 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 achiev e 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 ar e free to achieve as they see fit: [T]he Clean Air Act creates a par tnership between the states and the federal government. T he state proposes, though the EPA disposes. The federal government through the EPA determines the ends—the standar ds of air quality—but Congress has given the states the initiative and a broad responsibility regarding the m eans 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 s pecify 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 nati onally applicable standards in the manner that EPA itself pr efers. 42 U.S.C. § 7410(k)(3). The specific way in which EPA regul ates lead and lead compounds in the Proposed Rule runs afoul of Congress’ st atutory design. The Proposed Rule unambiguously indicates that it set proce ss vent emission standar ds pursuant to Clean Air Act § 112(f)(2) as a means of ensuri ng that the NAAQS would not be violated: As described above, EPA is proposing standards either predicated on individual sources emitting lead at levels that27 would result in ambient conc entrations less than the primary lead NAAQS (the proposed stack st andards), 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 poi nt of maximum projected concentration. EPA anticipates t hat, at least in areas where nonattainment is attributable to single sources that are subject to this rule, if the pr oposed controls are sufficient to attain the NAAQS by the a ttainment 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 cont rols in a manner designed to achieve the NAAQS limits the ability of states to det ermine 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 pollut ant under Clean Air Act § 112 thatthe 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 bei ng controlled directly by SIPs. For these reasons, the proposal to set lead emission standards pur suant 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 deterio ration) shall not apply to pollutants listed under this section.” Substances that ar e “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 pr ogram, EPA has suggested that it counts the “Pb portion of Pb compounds” to ward 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 posit ion 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 r egulate 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. Congr ess 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 st atutory text does not allow fo r 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 Se ction 112 applies with full force to lead compounds. If EPA determines that r egulation of lead compounds based on their elemental lead toxicity is governed by t he 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 st atute: “The provisions of par t C (prevention of significant deterioration) shall not apply to” lead compo unds, 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 diox ins and furans, and for total hydrocarbons (as a surrogate for organi c HAP emissions). EPA states that it is “proposing emissi on standards for dioxins and furans [and work practices] pursuant to CAA secti on 112(d)(3)” “because the 1997 NESHAP did not include emissions limits.” 76 Fed. Reg. at 29,037. Sim ilarly, EPA “did not establish standards for organic HAP emitted from rever beratory furnaces not collocated with blast furnaces, rotary furnaces, and electric furn aces 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 char ged with setting a schedule for emission standards for various categories and subcat egories 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 Ai r 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 “e mission standards promulgated under this section.” 42 U.S.C. § 7412(d)(6). EPA has not “promulgated emission standards” for30 dioxins and furans, or THC (f or furnaces other than blast furnaces), so it may not promulgate revised standards for these subst ances 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 bas ed, among other things, on demonstrable effects on public health. EPA does not provi de 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 promul gations of HAP from source categories and subcategories only where necessary to pr otect 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 T HC 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 atte mpt 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 su pplemental 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 th an 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) and31 112(f) through the RTR process. Instead, National Lime addressed what emission standards the agency should proposed in a MA CT 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 sm elting 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 seve ral factors. Thus, even if EPA were not to agree with ABR that Congress prohibi ted 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 pr otect the public welfare from adverse effects, a virtually identical standard as applies for the NESHAP revision. See 42 U.S.C. § 7409(b). (I ndeed, EPA has not suggested any s ubstantive distinction between these formulations.) Even if EPA interp rets both the NESHAP an d NAAQS program to regulate lead, the Agency must still consider whether particular regulation of lead under the NESHAP program is “requi red” where regulation already exists under the NAAQS program. Thus, NESHAP revisions bas ed 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 statut orily 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 emission s are required, but also whether additional standards for other HAP emissions that ar e necessarily reduced by controlling leadbearing particulates are required. Other wise, EPA would proceed on the incorrect assumption that ambient concentrations of lead or other HAP ar e “unacceptable” and that emissions “need to be reduced” thr ough 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 a ssessment that states have already begun to proceed with the lead SIPs and sour ces have begun implementing controls to achieve the NAAQS as expeditiously as prac ticable. For exampl e, Texas has published lead emissions control requirem ents for the Frisco, Texas ar ea for inclusion in its SIP and has scheduled its final SIP adoption by t he end of 2011. To comply with upcoming NAAQS standards, Frisco and other Exide facilities ar e implementing a suite of measures, including enclosures, point sources controls, and work practice requirements. NESHAP calculations should reflect that these planned reductions are33 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 t he NAAQS requirements and measures as they are being implemented, EPA overestimates ri sks from lead emissions in its NESHAP risk assessment. By imposing further N ESHAP requirements in order to address the risks that the NAAQS will alr eady 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 t hat it assessed risks reflecting the proposed NESHAP requirements for stack and fugitive emissions, but that these requirements would be insufficient to ensure that Exide Te chnologies’ 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 NAAQ S, 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 NAAQ S 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 addr ess risk under Section 112(f) is not required if EPA does, as it should, consider emissions cont rols required through im plementation of the NAAQS. EPA’s conclusion that risks are unacc eptable for secondary lead smelters was based on risk from exposure to lead and arseni c. NAAQS implement ation will clearly reduce lead levels, and will also reduce arseni c levels as particulates containing lead are the same particulates that contain arsenic. EPA itself concludes in the proposal that the control measures for t he two chemical families are the same and that control measures aimed at lead are suffi cient to control arsenic. See 76 Fed. Reg. at 29,055 (specifying reductions in lead necessary to en sure acceptable risk levels for arsenic). Thus, NAAQS implementation will reduc e 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 revisi on authority makes good sense when considered in light of the policies underlying the Clean Air Act. As described in detail above, the NAAQS is implement ed through SIPs, which give st ates 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 effectivene ss 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 implement ation. In the Proposed Rule, EPA lays out a joint timeline for the regulation of lead under the NAAQS and N ESHAP programs. See 76 Fed. Reg. at 29,063. EPA ex plains that the Agency revi sed 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 t hese non-attainment areas will be due in July 2012 and July 2013, respectively. States are requi red 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 complianc e without additional (or with fewer) SIP measures. Both EPA’s NAAQS and NESHAP timelines, however, are not well-founded and warrant clarification. The NAAQS time line is addressed herein. Moreover, EPA should provide three years—until 2015—fo r implementation of any NESHAP requirements (after taking into account the NAAQ S requirements). EPA’s statements in the NESHAP pr oposal revisit and reopen EPA’s earlier explanations of the NAAQS ti meline. EPA has, for example, stated that in finalizing36 attainment designations it would “consider [] air quality monitoring data from the three previous years, as available, in det ermining 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 attainm ent of the NAAQS bas ed on the three-month average over a three-year peri od before the NAAQS attainment deadline. ABR further notes that the Agency has taken the posit ion 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, t he 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 pr omulgate 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 prom ulgates 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 mustdemonstrate attainm ent of the NAAQS based on the three-month average over a three year period before the NAAQS attainment deadline woul d be contrary to th e 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 attainm ent date by requiring a demonstration of compliance prior to the attainm ent year. In that case, the court of appeals upheld EPA’s approval of an ozone SIP where the period fo r determining attainment was three years in the same manner as the NAAQS compli ance schedule. Further, like the ozone program, the lead program requi res reasonable further progress, defined in Section 171(1) of the Clean Air Act to mean annual in cremental 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 in consistent 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 dat e as November 15, 2007. 42 U.S.C. § 7511(a)(1), (2). In deed, 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 84 2-43, 104 S. Ct. 2778. Second, other provisions of the Act envision incremental progress up unt il 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 conflicting38 positions with respect to the NAAQS-N ESHAP compliance timeline and clearly state that the NAAQS measures need not be im plemented 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 mo re stringent MACT standards for lead emissions are not pro perly founded in Clean Air Act § 112(d)(6). In NRDC v. EPA , 529 F.3d 1077, 1084 (D.C. Cir. 2008), t he 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 re levant factors as part of revision emission standards “as necessary.” In relevant part, “necessary” means “being e ssential, 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 Cl ean Air Act § 112(f)(2)’s use of the term “required,” what is “necessary” must be c onsidered 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 Agen cy “believe[s] that these proposed revisions, identical to those proposed under CAA section 112( f)(2), are cost effe ctive revisions that reflect the level of control achievable in pr actice 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 particula r control, but does not answer the antecedent39 question of whether or not imposing such contro l is necessary to protect public health or the environment in light of ot her legal requirements that t he Clean Air Act applies to the secondary lead smelting industry. G. Data Quality Problems In Setting Emission Factors The Proposed Rule would change the defin ition of collocated blast furnace and reverberatory furnace “to apply to systems ‘where the vent st reams of the furnaces are mixed before cooling,’” as a means of “clarify [ing] the intent of t he original definition which was to establish the conditions under wh ich 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 so urces that combine bl ast 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 ident ify a subset of industry stacks for emission testing intended to inform this rule making. In making it s recommendations for the cross-section of furnace exhausts to test, the ABR sought to provide a representative subset of sour ces covering the various subcategories of sources. At no point in this process, however, did EPA sugg est that it was considering redefining the collocated blast and reverberatory furnac e subcategory. As a result of EPA’s unanticipated revision, only one collocated blas t and reverberatory furnace exhaust that meets EPA’s revised definition, that at East Penn, was test ed as part of the information collection for this rulemaking. Thus, the dioxin and furan emission limits for this40 subcategory of five collocated blast and re verb 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 ac hieved by the bestperforming sources in the subcategory. Al though 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 collecti on and analysis of such data. See, e.g. , EPA-HQ-OAR2011-0344-0076. EPA must wait until such da ta are received because, as discussed above, EPA is required to utilize informa tion that it coul d “reasonably obtain.” H. Toxic Equivalency Factors The Proposed Rule states that EPA TE Q emissions are “calculated using the toxic equivalency factors (“TEF”) outlined by the World Health Or ganization (WHO) in 2005.” 76 Fed. Reg. at 29,051. Consistent with this stat ement, 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 erro r 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 t he definition of the equation term C ELi . This equation is applicable to any Table 2 pollutant, such as THC, but is not applicable to lead. J. Startups, Shutdown s, And Malfunctions EPA should promulgate work practice standards for emissions during startups, shutdowns, and malfunctions (“SSM”), rath er 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 test ing during SSM events. As such, EPA has not demonstrated that the best- performing units can achieve or have achieved the proposed MACT emission standar ds during SSM events. Mo reover, the unpredictability and variability of emissions during SSM events makes measuring their emissions infeasible using current measurement meth ods, 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 practi ces for SSM, rather than finalizing an emission standard that enc ompasses these events. K. Test Measures For Compliance The Proposed Rule require s that periodic stack test ing to determine compliance with the process vent emission limitations fo r lead be conducted using EPA Method 29. See 76 Fed. Reg. at 29,074 (pr oposed to be codified at 40 C.F.R. § 63.547(a)(5)). This requirement departs from the current NESH AP 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 Me thod 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 underst ands the Proposed Rule as requiring that stack42 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 calculat e 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, wh ich 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 A gency does not identify wh ich facilities undertake all the design standards and work practices, nor is the ABR aware of any sources that currently undertake all of t hese 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 re fer to the enclosure standards as “design standards” in its comments.43 design and work practice standards inconsis tent 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, promul gate a design, equipment, work practice, or operational standard, or combi nation thereof, which in the Administrator’s judgment is consistent with the provisions of s ubsection (d) or (f) of this section .” 42 U.S.C. § 7412(h)(1) (emphasis added). EPA proposed the f ugitive 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 coul d 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 consiste nt with Clean Air Act § 112(d)(2), they collectively must be undertaken by, or at leas t consistent with, the best performing five sources in the industry. It is not possibl e for EPA to form the j udgment that the design and work practices in question are undertaken by , or at least consistent with, the best performing five sources in the industry, sinc e that information is not in the docket. The design and work practice standards ar e not consistent with Clean Air Act § 112(f)(2). EPA’s decision to set a Clean Ai r Act § 112(f)(2) standard is predicated on its decision that “fugitive dust emissions mu st 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 NAAQ S-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 in formation 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 subs tantive 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 Agen cy summarize the factual data and methodology on which all aspects of a proposed rule are based at t he 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 informati on 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 co rrectly described and transformed into proposed legal requirements the practices on which these proposed work practice standards are predicated. This is parti cularly the case because many of EPA’s45 proposed work practices appear to have numer ous deficiencies, as discussed below, and because determining the availa bility of work practices at individual secondary lead smelters requires this information. Finally, although the S outhern California Air Q uality 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 no t state that it was relying on the SCAQMD rule, nor did it introduce that rule or any administrative materials underlyi ng its consideration into the record. Introducing the record of the SCAQMD rule would have shown that it was potentially justified 14 only in light of the unique local c oncerns 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 wo rk 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 Ca lifornia, where meani ngful 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 abili ty 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 regular ly throughout the year. (In contrast to Southern California, the TBRC facility in Ar ecibo, Puerto Rico, experiences rainfall approximately 200 days of the y ear.) Similarly, the sec ondary lead smelters in the SCAQMD are comparatively large m easured by output, but are located on comparatively small properties. This ma kes 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 fugi tive dust is emitted closer to ambient air. 16 In addition, EPA has no basis for conclu ding that the work practices that the SCAQMD required would be effective at all outsi de 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 c onditions. EPA may not, however, take them as a template for regulati on 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 barri er[].” 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 fr om Stephen D. Page, Director, EPA OAQPS, to Regional Air Division Dire ctors 3 (June 22, 2007), available at http://www.iowadnr.gov/portals/i dnr/uploads/air. Therefore, i ndustrial 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 ro lling 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 NAAQ S at all monitors near their property boundaries without applying these measures. ABR members currently and regularly meeti ng the NAAQS at monitors near their property boundaries include Goph er Resource Corporation (MN), East Penn (PA), Revere Smelting and Refining (NY), and RSR (I N). 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/m 3 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 r oof 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 nece ssary for NAAQS attainment, it would be arbitrary and capricious for EPA to finalize th em on that basis. All facilities in the industry have developed site-specific Standar d Operating Procedure s (“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 curr ent requirements for fugitive dust control set forth at 40 C. F.R. § 63.545, and allo w individual permitting authorities to choose whether to implement those contro ls deemed necessary and appropriate in their SIPs. 2. EPA Should Clarify Its Altern ative 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 r egulated pursuant to an emission standard. See 76 Fed. Reg. at 29,038 (not ing that “fugitive emissi ons . . . cannot be readily captured or directly measured.”). It could also be difficult becaus e 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 th is requirement. EPA’s proposed roof washing49 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 f ilters are “handled” is upon removal from the baghouse cell, usually on a catwalk running al ong the side of the baghouse. It is not appropriate to require all such areas to be pl aced 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 catwal k. This practice prevents the risk of windborne dust generation, renderi ng the installation of total enclosures for all areas where used fabric filters are handled unnec essary. 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 pr ocessed outside of closed containers or in dry form. This proposed regulatory language is consist ent with technical and supporting material50 in the docket. EPA’s cost analysis does not in clude the cost required to enclose all areas where used fabric filt ers are “handled,” such as the aforementioned catwalks, because of the Agency’s belief that “facilities that are currently ac hieving ambient lead concentrations at or near t he lead NAAQS at or near thei r 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 defin ition 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 fr om fabric filters in enclosed screw conveyors to central processing and storage ar eas (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 hopper s. As currently wo rded, 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 whic h would greatly exceed the costs that the Agency estimated. The definition of “ma terials storage and handling area” should be modified to exclude the transfer of raw mate rials of any type in enclosed conveyors by replacing the proposed definit ion with the fo llowing language: Materials storage and handling ar ea means any area of a secondary lead smelter in which lead-bearing materials (including, but not limited to, broken battery components, reverberatory furnace slag, fl ue 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 handli ng area shall not include any closed containe rs 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 depar ture from the Agency’s previous rejection of a similar requirement. EPA s hould retain the total enclosure performance specifications and associated monitoring requ irements 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 leas t 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 confus e the requirements th at are typical of enclosures that function as hoods for industr ial hygiene ventilation purposes with total enclosures used to capture fugitive dust. R equiring 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. Fo r a process hood, principles of industrial ventilation would dictate a “capture velocity” to affect the redirection of particles leaving the process. The appropriate performance cr iterion 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 c ontained and swept into the exhaust system. This is, in fact, the very structure a ssociated with the total enclosure performance criteria in the current NESHAP for this i ndustry. 40 C.F.R. § 63.547(e)’s current requirements allow a source to demonstr ate either doorway in-draft or negative52 pressure. The Proposed Rule neither recogni zes 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 ex plain its departure from prior norms”); Garvey v. NTSB , 190 F.3d 571, 585 n.21 (D.C. Cir. 1 999) (“[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 require s 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 demonstrat ed, but does not require that in-draft be at a specific minimum velocity. That is, if measurement s indicate any inward velocity, it is demonstrated that out-draft is not occurri ng and there are no emi ssions from that opening. Here, too, EPA has failed to recogni ze or justify its departure from EPA’s previous decision, refusing to finalize a pro posal to require 250 ft/minute in-draft velocity in the original NESHAP propos al because such a “velocity r equirement is excessive.” 62 Fed. Reg. 32,209, 32,214 (June 13, 1997). EPA has similarly failed to justify its select ion of the in-draft mi nimum 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 enclosures53 implies that EPA believes that existi ng 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 veloci ty requirement, and their modification to achieve 300 feet per minut e would require substant ial 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 adminis trative 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 demons trating that the monitoring proposed at 40 C.F.R. § 63.548(i) will add any val ue or effectiveness beyond the negative pressure monitoring specifications giv en in the current NE SHAP at 40 C.F.R. § 63.547(e)(2). Moreover, EPA’s propos ed 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 pressure54 would not be maintained and the pressure dr op 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 result s 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 regulat ory 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 incl udes no information demonstrating any actual buildup of lead-bearing dust on r oofs in the secondary lead sm elting industry, nor does EPA explain why such hypothetical dust em issions would be predicted to become airborne and enter t he ambient air beyond the property line. Even SCAQMD Rule 1420.1, which requires roof washing, exem pts sources from cl eaning 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 t he 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 not es 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 else where in the country, where more typical precipitation patterns coul d 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, elimin ating concerns about fugitive build-up on the roof. Further, roof cleaning requi res 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 demonstrat ion 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 abando n this aspect of its proposal. f. EPA Should Abandon The Wet Washing Requirement EPA should abandon the proposed regulat ory language at 40 C.F.R. § 545(c)(2)(i) requiring that if a water-flush ing 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 ac hieving ambient monitor results below 0.15 ug/m 3 on a three-month-rolling average, esti mates that its road scrubber applies approximately 0.05-gallons/squar e yard (an order of magnit ude less than that proposed as a minimum). In fact, there is no evidence that equipment currently used could56 achieve a water application rate of 0.48-gal lons/square yard, which is typically not designed for such high application rates. Second, EPA provides no justificati on, nor does the record contain any documentation, supporting this minimum water app lication rate or what level of efficacy it is supposed to represent. Particularly for sources which receive significant precipitation, pavement washi ng would largely be irrelevant for reducing fugitives. Third, EPA provides no environment al benefit analysis for this proposed measure. In specifying a very particular ra te of water application to facility roadways, EPA is mandating a certain level of water co nsumption (and subsequent treatment and discharge) in order to address a perceived sour ce of potential air emissions. That is, EPA is requiring a potentially adverse environm ental impact (water resource treatment and consumption) without provid ing any analysis as to how the proposed environmental benefits outweigh the environmental bur den 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 rele vant, their permitting authorities. EPA should further exempt pavement cleaning “on days when natural precipitation makes cleaning unnecessary or when sand or a similar mate rial has been spread on plant roadways to57 provide traction on ice or snow.” g. EPA’s Requirements For Maintenance Activities Are Overly Prescriptive EPA’s proposed requirement s to prevent fugitive dust emissions during maintenance activities, when combined with the Proposed Rule’s expansive definition of “maintenance activities,” are overly prescr iptive 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 re vised 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 bes t response is to promptly patch, close, and repair the leak. A prompt response woul d prevent far more emissions than would the requirements of the Proposed Rule, which would allow the emission of fugitives until the source had installe d a partial or temporary enclosure and/or mobilized water supply

or vacuums. The wide variety of specific facilit y configurations and potential maintenance scenarios (both planned and unplanne d) call for far less prescr iptive requirements. As with the example scenario de scribed above and others, facilit ies should be allowed to58 exercise judgment in implement ing maintenance practices that best reduce emissions. Facilities should not be required to fo llow the requirements of proposed section 63.545(c)(7), if the delay in conducting the maintenance to allow mobilization and implementation of the requi rements would reasonably be expected to lead to more emissions than would be prevented by the pr escribed control measures. Finally, EPA should clarify that once an item (inc luding 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 emi ssions benefits of the proposed work practice requirements (proposed to be codi fied at 40 C.F.R. § 63.545(c)(1)-(8)). See 76 Fed. Reg. at 29,060, 29,073. Although EPA says such measur es 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 enclo sures, 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 specif ically 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 estima ted in Table 5-1 of the Draft59 Development of the RTR Emissions Datase t for the Secondary Lead Source Category April 1, 2011 (“ RTR Emissions Dataset ”), EPA-HQ-OAR-2011-0038. Accordingly, the ABR assumes that the underly ing 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 es timate 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 incorre ct 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, Texa s secondary lead smelter. As explained in detail in Part III.C.2, EPA’s estimates of fugi tive 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 dus t from roofs, accidental releases, or maintenance activities. Accordingly, EPA lacks a reasonable basis to assert that the work practice requirements designed to contro l emissions from those activities would achieve any particular emissions reduction. For example, the pr oposed 40 C.F.R. § 63.545(c)(3) requirement for roof surface cl eaning has very definite costs and risks to60 workers, but we can find no data or analysis in the record showing that emissions of dust from facility roofs are actually occurri ng, much less quantified. EPA therefore has no basis to demonstrate the cost e ffectiveness of such measures. C. Alternative Design Standards 1. Legal Issues Related To Al ternative Design Standards In lieu of design standards requiring total enclosure of process fugitive emission sources, EPA proposed alternative design standar ds that do not require a full enclosure, but that instead require less stringent enclo sure 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 alternativ e design standards, EPA should revise the alternative design standards to better co mport with the Clean Air Act’s text and to resolve ambiguities contained in the proposal (specifical ly 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 F ed 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 EP A. 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 stat utory right to propose alter native 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 establis hes to the satisfaction of the61 Administrator that an alternative means of emissions limitation will achieve a reducti on in emissions of any air pollutant at least equivalent to the reduction in emissions of such pollutant achieved un der 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 clarif y that its proposed alternative design standards do not preclude a regu lated entity from offering alternative design standards that meet this criterion. Second, EPA need not require installati on of additional monitors to assess whether ambient air concentrations in t he vicinity of secondary lead smelters will register values below a 3-month rolling average value of 0.15 μg/m 3 , 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 i ssue, 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 additi onal monitors for NESHAP-compliance purposes, when this parallel monitoring network already exists. Third, EPA incorrectly suggests that t he alternative design standards it proposes could cause the lead NAAQS to be an emi ssion standard for certain secondary lead smelters. This position is predicated on the Propos ed 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 requi red 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 monito ring. CAA section 302(k). 76 Fed. Reg. at 29,056 n.26. But Clean Ai r 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 “e mission standards” expressly includes “any design, equipment, work practice or oper ational 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 standar d.” Clean Air Act § 112(h)(1). This provision would make no sense if design, eq uipment, or work practice standards were already “emission standards.” Additionally, the Proposed Rule recognize s 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 meas ured.”). Having concluded that fugitive dust emissions are not sufficient ly 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 em ission 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). By63 definition, a NAAQS may only be set for a cr iteria 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 contra st, 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 estab lishing the NAAQS as an emission standard under Clean Air Act § 112 is underscored by the fact that emissions from nonsecondary lead smelting industry sources c ould lead to NAAQS non-attainment events at sources that undertake alternative des ign standards, regardle ss of the standards “promulgate[d] . . . for [a] category or subcategory” under Clean Air Act § 112(f)(2). It would also be inappropriate to cons ider the lead NAAQS as an emission standard for the secondary lead smelting in dustry, 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 t he ambient values even at property line monitors. While monitored NAAQS values shoul d 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” betw een the Proposed Rule’s design standards and any alternative design standards contai ned 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 design64 standards, monitored NAAQS exc eedances 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 Propos ed Rule states that a faci lity that opts into the Agency’s alternative design standards must install compliance monitors on or near the plant property boundary, at loca tions 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/m 3 at each monitor . . . 76 Fed. Reg. at 29,073 (proposed to be codi fied 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 pr ovision that a source “ demonstrate that the lead concentration in air is at all times maintai ned below a three-month rolling average value of 0.15 μg/m 3 at each monitor” is not a requirement that a source which opts into the alternative design standards mu st 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 sele cts the alternative design standards must undertake in the ca se of an exceedance of the three-month rolling average value of 0.15 μg/m 3 . Given that exceedances registered by an ambient air monitor may be caused only by emi ssions 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 st ate 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 t hat a source that opts initia lly 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 fl exibility, 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 seco ndary lead smelters to propose alternative work practices and design standards, and whic h statutory right wo uld be restricted if EPA were not to allow sources to switch between the proposed and alternative design standards. 2. Proposed Regulatory Langua ge 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 t he alternative design standards: 19 (d) As an alternative to the requirement s 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 loca tions approved by the Administrator consistent with the relevant sitting cr iteria at 40 C.F. R. Part 58, to demonstrate that the l ead concentration in air is at all times maintained below a 3-month rolling average value of 0.15 μ g/m 3 at each monitor. This

18 As a practical matter, sources are unlikel y 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 el sewhere 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 St ate, local or Tribal authority) of any exceedances of t he 3-month rolling average value of 0.15 μ g/m 3 at any monitor installed an d operated pursuantto paragraph (d)(1)(ii) of this section. (2) You must control the process f ugitive emission sources listed in paragraphs (d)(2)(i) through (d)(2)(vi) of this section in accordance with the equipment and operational standar ds presented in paragraphs (d)(3) through (d)(8) of this section. (i) Smelting furnace and dryer char ging 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 sour ces 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 transiti on pieces must be ventilated to maintain a face velocity of at leas t 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 applic able requirements of § 63.543. (4) As an alternative to paragraph (d)(3)( iii) of this section, you may elect to control the process fugitive emi ssions from dryer transition pieces by67 installing and operating pressuriz ed dryer breaching seals at each transition piece. (5) For the battery breaking area, parti al enclosure of storage piles, wet suppression applied to storage pile s with sufficient frequency and quantity to prevent the formation of dus t, 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 handl ing area, partial enclosure of storage piles, wet suppression appl ied to storage piles with sufficient frequency and quantity to preven t the formation of dust. (e)(1) As an alternative to the requi rements 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 deter mination pursuant to the requirements of (e)(1) of this section may do so by demonstrating that measures taken at and design features of the s ource, including without limitation its current or pr oposed Standard Operat ing Procedures, will not cause any monitor establis hed by the Administrator (or delegated State, local, or Tribal authority) near the source to exceed the 3-month rolling average value of 0.15 μ g/m 3

. (f)(1) Any source that opts to de monstrate compliance by meeting the requirements of (d)(1) thr ough (d)(4) of this section may, after notifying the Administrator (or delegated St ate, local, or Tribal aut hority), choose to meet the requirements specified in paragraphs (a ) through (c) of this section. (2) Any source that meets the requ irements specified in paragraphs (a) through (c) of this section may el ect to demonstrate compliance by meeting the requirements of (d)(1) through (d)(4) of this section in accordance with the require ments 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 smelting68 industry. See 76 Fed. Reg. at 29,051. Such requirements are unnecessary and infeasible. Moreover, the ABR does not believe that the data it s ubmitted to EPA during the ICR testing process reliably confirm that merc ury is actually emitted by the secondary lead smelting industry. Mercur y 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 “oper ate a process to separate plastic battery casing materials prior to introducing feed into a blast furnace.” See 76 Fed. Reg. at 29,072 (p roposed 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 separ ation 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 material s generally. Instead, the members’ existing facilities operate a separation process at their battery breakers to separate polypropylene battery case material as a va luable recyclable commodity. Not all spent lead acid batteries are amenable to separati on, however. Most of the ABR members process certain battery types, such as sm all sealed-lead-acid batteries and certain69 industrial lead-acid batteries, which are fed in tact 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 t oo 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 over states the risk of the pollu tants 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 ar e overstated, and even when overstated, do not provide a measurable increment in risk ov er 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 U se 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 do cket, 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 Specificati on for lead CEM. There is no way for the ABR or any other stakeholder to meaningfu lly assess such systems and their potential70 applicability to the secondary lead smel ting industry absent such Performance Specification. If EPA were, at some later date, to finalize an appropriate Performance Specification for CEM technology to moni tor 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 subjec t 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 te chnology 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 seco ndary 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 t hough 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 feasibilit y 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 em ission standards. This rationale is not sufficient to support a CEM requirement, par ticularly because an inaccurate monitor could suggest that ABR’s members are potenti ally liable for significant penalties for allegedly violating a Clean Air Act § 112 em issions standard, and for the legal fees commensurate with defending agai nst such a claim. Moreover, the record contains no cost in formation for CEM, nor does it suggest71 that EPA has considered the cost of CEM. See, e.g. , EPA-HQ-OAR-2011-0040, EPAHQ-OAR-2011-0041 (EPA cost doc uments 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 info rmation 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 fo r 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 t hat 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 dramatic ally if EPA requires that sources use technology offered by only one company. This cost would be potentially imposed des pite 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 cu rrent NESHAP and the Proposed Rule require application of bag leak detec tion systems (“BLDS”) to provide assurance that stack emissions remain well controll ed between periodic stack tests. There is no indication in the record to indicate that this BLDS technol ogy is inadequate. This is particularly the case where EPA itself has concluded that fugi tive emissions are t he primary driver of72 risk from the industry, rather than process vent emissions. Finally, it would be arbitrary and c apricious for EPA to adopt the CEM requirement before the Perfo rmance Specification for its operation is determined. An agency must “articulate a satisfactory expl anation 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 c annot determine in advance whether or not a lead CEM would be effectiv e and would reliably monitor emissions as required under this rule until the Perf ormance Specification is finalized. The comments that Cooper has submi tted in support of EPA’s proposed CEM requirement are flawed and do not pr ovide 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 it s comments from CEM stack systems, the focus of EPA’s request for comment s. For example, Cooper pr ovides 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 wh ich the referenced data were collected or73 even whether the facility is in the United States. 20 Figure 1 is either erroneous or misleading. The highlighted “ outlying” data represents a c oncentration 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 rat her 300 times greater t han the Pb NAAQS. Figure 1 is, thus, irrelevant to secondary le ad smelters in the United States, which rarely, if ever, cause ambient conc entrations 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 indivi dual 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-mont h rolling average standard. Mo reover, Cooper’s suggestion that emissions near the1 mg / dscm stac k concentration limit would approach the NAAQS wholly ignores t he 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 conc entration limit would not inte rfere 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 (thr ough 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 fo r Figure 1 is that the data purportedly comes from a primary lead smelter. No su ch identifying information is provided for74 simply asserts that the concern over cost is simply that CEMs might have to be installed on multiple stacks. EPA-HQ-O AR-2011-0344-0081, p. 7. This claim is incorrect—ABR has concerns about the cost and cost-effectiv eness of even a single CE M in light of the fact that stack emissions ar e not the driver of risk from secondary lead smelters. Cooper’s claim that secondary lead smel ters 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 pr ovides no cost data for its claim that “the costs to duct emissions to a common sta ck 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 ev idence that re-routing emissions to fewer emission points is technologically feasible at any individual facilities, provides no evidence that doing so is consistent wit h good engineering practices, and fails to consider the permitting imp lications 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 smel ting 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 hi story of diligent compliance with its legal obligations. Even if circumvention were possible in so me industries by distributing emissions to additional emission points, it makes no sens e 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 l ead emission concentrations; it would just distribute the same concentration to more emission points. Finally, Cooper’s attempt to address conc erns about the lack of a Performance Specification for lead CEM is insufficien t. EPA-HQ-OAR-2011- 0344-0081, p. 8. Performance Specifications constitute legi slative rules and, as such, are properly promulgated through notice and comment rulema king processes. Cooper suggests that Other Test Method 16 (“OTM 16”) would be a ppropriate as a performance standard, but OTM 16 has not been validly promulgated for th is 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 pr oposed multi-metal CEM nor requested comment on their applicability. B. EPA Should Retain The Exem ption From Bag Leak Detection For Baghouses With Sec ondary HEPA Filters EPA should abandon its proposal to requi re 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 cu rrent NESHAP to exempt baghouses with secondary HEPA filtration fr om the BLDS requirement: The EPA acknowledges that some baghouses are equipped with HEPA filters, which act as a secondary filt er, and that these secondary filters may pr ovide 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 its76 position, or even recognizing that the A gency 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 re vised 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 aut hority to provide up to a three-year compliance period for any standar d or regulation for the cont rol of HAP from existing

sources: After the effective date of any emissions standard, limitation or regulation prom ulgated under this section and applicable to a source, no person may operate such source in violation of such st andard, limitation or regulation, except, in the case of an exis ting source, the Administrator shall establish a compliance dat e or dates for each category or subcategory of existing sour ces, which shall provide for compliance as expeditiously as practicable, but in no event later than 3 years after the e ffective date of the standard, except as provided in subpar agraph (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 ru le 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 extensi on 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 pr oposed two years for compliance as a matter of course77 because the Agency “is already fully awar e of the steps needed for each source to comply with the proposed standards and to reas onably 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 tw o 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 emis sions standard, limitation or regulation promulgated under secti on”) 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 Ac t § 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 pa rt 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 desi gn 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 fur naces) and dioxins and furans are wholly new standards set pursuant to Clean Air Act § 112(d)(3), without c onsideration 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 com porting with this reading of the Clean Air Act. That subsection allows “ext ension[s]” for a source that is “unable to comply with a relevant standard established under this part pursuant to section 112(f) of78 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 insufficien t 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 milli on for a number facilities. See EPA-HQ-OAR-2011- 0344-0040. The ABR believes this figure understat es the actual cost of compliance, but even if it is correct, expenditures of this magnitude are subst antial 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 si mply a matter of “throwing up a building” over the involved processes. Designs must consider efficient movement of material between processing steps and, most importa ntly, the indoor work environment both from a lead concentration and he at standard. Only after this is done can facilities estimate construction costs, receive appr oval for capital ex penditures, and obtain financing. Construction must also be care fully staged around the process equipment. It is likely that large enclosures could onl y be constructed duri ng scheduled periodic maintenance downtime for at least some of the involved processes. These are often scheduled at least six months apart. Accordingl y, it is not realistic to assume that facilities will be able to comply with t he new rule during a two-year compliance schedule. Most secondary lead smelting industry sour ces are also facing obligations to take79 additional measures to assure attainm ent of the 2008 lead NAAQS during the time period that overlaps with this NESHAP impl ementation. 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 appr oximately thirty different source categories roughly cont emporaneous with this rulemaking. These actions will increase the cost of complianc e by increasing the demand for construction services, and will also make certain limited and necessary resources, such as tower cranes and skilled workers, mo re 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 “modi fied 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 gen eral Part 63 regulations (which are incorporated in large part into the Rule) define the term “modifi ed source.” The term “modification” is defined in Clean Air Act §§ 112(a)(5), -112(g), but that definition would apply the “maximum achievable control te chnology emission limitation under this section for existing sources” to any major source that is modi fied. 42 U.S.C. § 7412(g)(2)(A). Were this defin ition applicable, it would be contrary to Clean Air Act §80 112, because it would impose a “new s ource” requirement like CEM on a modified source rather than appropriately imposing t he existing source provision that does not require installation of CEM. If E PA does not wholly abandon its proposed CEM requirement, the Agency should delete t he 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 sour ce” for purposes of the secondary lead NESHAP is all secondary lead smelter operati ons at a given faci lity, rather than individual pieces of equipm ent 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 sour ces within secondary lead smelters. For example, the Proposed Rule suggests that “ new sources” will be subj ect 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, fl ow-weighted average lead concentration limit of 0.20mg / dscm” and “a maximum lead concentrati on 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 ant icipate[s] “that the 14 sec ondary lead smelting facilities currently operating in t he United States will be affe cted by these proposed amendments.” 76 Fed. Reg. at 29,064. T he 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 s eparate 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 r equests that EPA confirm this understanding in the final rule, particularly given the exis ting 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 facilit y, thus triggering the lead CEM requirement for at least t hat new stack. In particular, the ABR anticipates that a number of new ventilati on 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. T hese new systems would provide additional capture and control of emissions from existing sources of process fugitive and/or fugitive dust emissions.