***E.O. 12866 Review

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– Do Not Cite, Quote, or Release During Review*** EO12866_Mercury Emissions from Mercury Cell Chlor ‐Alkali Plants 2060‐AN99 NPRM Draft Preamble and Rule_20 100702 6560

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- P **ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part**  **63 [**  **EPA -**  **HQ -**  **OAR -**  **2002 -**  **0017 ; FRL**  **-** ] **RIN 2060 -**  **AN99 National Emission Standards for Hazardous Air Pollutants**  **:**

**Mercury Emissions from Mercury Cell Chlor -**  **Alkali Plants**

**AGENCY:** Environmental Protection Agency (EPA).
**ACTION:** Supplemental p roposed rule
. **SUMMARY:** This action proposes amendments to the national emission standards for hazardous air pollutants (NESHAP) for mercury emissions from mercury cell chlor

- alkali plants
. On June 11, 2008, EPA proposed amendments to this NESHAP in response to a petit ion for reconsideration filed by the Natural Resources Defense Council (NRDC). This action is a supplement to the June 11, 2008, proposal , and revises certain aspects of the 2008 proposal while maintaining other s . This action proposes to amend the NESHAP to prohibit emissions of mercury from mercury cell chlor

- alkali production process es within three years from promulgation of the final rule . F acilities could
meet these limits by either convert ing to nonmercury technology

or by ceasing their chlorine production operations . F or all mercury recovery units , the proposed rule also prohibit s mercury***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 2 of 78 emissions within three years from promulgation of the final rule
. If promulgated, this supplemental proposed rule would eliminate approximately 640 p ounds of annual mercury emissions, and result in reduced energy demand of around 350,000 m egawatt hours per year , which is approximately equivalent to the energy produced in one year by a 40 m egawatt power plant
. In addition, this action proposes to amend the provisions of the existing NESHAP that apply to periods of startup, shutdown, and malfunction. Two amendments proposed on June 11, 2008 to correct compliance errors in the rule are being retained. Specifically, these two amendments are related to the detection limit for continuous mercury analyzers and the frequency of determining compliance with the emissions standard for mercury recovery units.
**DATES:** Comments
. Comments must be received on or before [INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER ]
. Public Hearing
. If anyone contacts EPA by [INSERT DATE 15
DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER ] requesting to speak at a public hearing , a hearing will be held on [INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER ]
. **ADDRESSES:** You may submit comments, identified by Docket ID No.
EPA

- HQ

- OAR

- 200 2

- 0017 , by any of the following methods:***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 3 of 78

• Federal eRulemaking Portal: http:// www.regulations.gov : Follow the instructions for submitting comments.

• Agency Web Site: http://www.epa.gov/oar/docket.html
. Follow the instructions for submitting comments on the EPA Air and Radiation Docket Web site.

• E

- mail: a - and

- r - docket@epa.gov
. Include Docket ID
No. EPA

- HQ

- OAR

- 2002

- 0017 in the subject line of the
message .

• Fax: (202) 566

- 9744
.

• Mail: National Emission Standards for Hazardous A ir Pollutants for Mercury Cell Chlor

- alkali Plants Docket , Environmental Protection Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket, Mail Code 2822T, 1200 Pennsylvania Ave., NW, Washington, DC 20460. Please include a total of two copies. In addition, please m ail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn : Desk Officer for EPA, 725 17 th St., NW., Washington, DC 20503.

• Han d Delivery: EPA Docket Center, Public Reading Room, EPA West, Room 3334 , 1301 Constitution Ave., NW, Washington, DC 20460. Such deliveries are only***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 4 of 78 accepted during the Docket’s normal hours of operation, and special arrangements should be made for d elive ries of boxed information. Instructions : Direct your comments to Docket ID No. EPA

HQ

- OAR

- 2002 **-** 0017 . EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be confidential business information (CBI ) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e - mail. The www.regulations.gov W eb site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e

- mail comment directly to EPA without going
t hrough www.regulations.gov , your e - mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD

- ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, E PA may not be able to***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 5 of 78 consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket : All documents in the docket are listed in the www.regulations.gov index . Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the National Emission St andards for Hazardous Air Pollutants for Mercury Cell Chlor

- alkali Plants Docket , EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566

- 1744, and the telephone number for the Air Docket is (202) 566

- 1742. **FOR FURTHER INFORMATION CONTACT:** Dr. Donna Lee Jones, S ector Policies and Programs Division , Office of Air Qualit y Planning and Standards (D 243

- 02 ) , Environmental Protection Agency , Research Triangle Park, North Carolina 27711, telephone number: (919) 541

- 52 51 ; fax number : (9 19) 541

- 3207 ; e - mail address: jones.donnalee@ep a.gov .***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 6 of 78 **SUPPLEMENTARY INFORMATION: I. General Information** 
A. Does this action apply to me? The regulated categories and entities poten tially affected by this proposed action include:
Category NAICS code 1 Examples of regulated e ntities Industry. . . . . 325181 Alkalis and Chlorine Manufacturing Federal government
. . . . Not affected. State/local/tribal government . . . . Not affected.

1 North American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. To determine whether your facility would be regulated by this action, you should examine the applicabi lity criteria in 40 CFR 63.7682 of subpart I IIII , N ational E mission S tandards for H azardous A ir P ollutants ( NESHAP ) : Mercury Emissions from Mercury Cell Chlor

- Alkali (hereafter called the “2003 Mercury Cell MACT”)
. If you have any questions regarding the applicability of this action to a particula r entity, consult either the air permit ting authority for the entity or your EPA regional representative as listed in 40 CFR 63.13 of subpart A (General Provisions).
B. What should I consider as I prepare my comments to EPA?***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 7 of 78 Do not submit information containing CBI to EPA through www.regulations.gov or e - mail. Send or deliver information identified as CBI only to the following address: Roberto Morales, OAQPS Document Control Officer ( C404

- 02), E nvironmental Protection Agency , Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina 27711, Attention Docket
ID EPA

- HQ

- OAR

- 2002

- 0017 . Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with
proce dures set forth in 40 CFR part 2.
C. Where can I get a copy of this document? In addition to being available in the docket, an electronic copy of th is proposed action will also be available on the Worldwide Web (WWW) through the Technology Transfer Netw ork (TTN). Following signature , a copy of th is proposed action will be posted on the TTN’s policy and guidance page for newly proposed or promulgated rules at the following address:***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 8 of 78 http://www.epa.gov/ttn/oarpg / . The TTN provides information and technology exchange in various areas of air pollution control.
D. When would a public hearing occur ? If anyone contacts EPA requesting to speak at a public hearing concerning the proposed amendments by [INSERT DATE 10
DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER ] , we will hold a public hearing on [ INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER ]
. If you are interested in attending the public hearing, contact Ms. Pamela Garrett at (919) 541

- 7966 to

ve r ify that a hearing will be held. If a public hearing is held, it will be held at 10 a.m. at the EPA’s Environmental Research Center Auditorium, Research Triangle Park, NC, or an alternate site nearby.
E. How is this document organized ? The supplementary information in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments to EPA? C. Where can I get a copy of this document? D. When would a public h earing occur? E. How is this document organized? II. Background Information III . Summary of Proposed Amendments A. What are the proposed amendments? B. How do these proposed amendments relate to the amendments proposed on June 11, 2008? IV. Rationale for Proposed Amendments A. What is the basis for the proposed zero mercury standard ? 1. Technical information and analyses 2. Rationale for selection of the zero mercury standard***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 9 of 78 B. What is the basis for the proposed rule changes related to startup, shutdown, and malfunction? C . What is the basis for the proposed rule corrections? D . What is our rationale for doing a supplemental proposal? V. Impacts of Proposed Amendments A. What are the cost and economic impacts of this proposal? 1. Cost impacts 2. Economic impacts B. What are the environmental and energy impacts of this proposal? V I . Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility A ct D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks H. Executive Order 13211 : Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low

Income Populations **II. Background Information**  On December 19, 2003, EPA promulgated the 2003 Mercury Cell
M ACT (40 CFR part 63, subpart IIIII, 68 FR 70904 ) . This rule for mercury cell chlor

- alkali plants implement s section 112(d) of the Clean Air Act (CAA) , which require s all categories and subcategories of major sources listed under section 112 (c) to meet hazardous air pollutant emission standards reflecting the application of the maximum achievable control technol ogy (MACT). Mercury cell chlor

- alkali plants are a subcategory of the chlorine production source category listed under the authority***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 10 of 78 of section 112 (c) (1) of the CAA. In addition, mercury cell chlor

- alkali plants a re listed as an area source category unde r section 112 (c) (3) and (k)(3)(B) of the CAA. The 2003 Mercury Cell MACT satisfied our requirement to issue 112(d) regulations under each of these listings (for mercury). The 2003 Mercury Cell MACT required both existing major and area sources to meet

me rcury emission limits on stack emission sources from both chlorine production and from the recovery of mercury from wastes and other scrap in mercury thermal recovery units
. The 2003 Mercury Cell MACT also required the facilities to monitor and minimize fugitive mercury emissions from the cell room by conducting either daily work practices or work practices performed in response to high levels of mercury emissions determined from continuous mercury monitoring. The 2003 rule requir ed facilities to comply with applicable emission limitations and work practice requirements at all times, except during periods of startup, shutdown, and malfunction. Finally,
t he 2003 Mercury Cell MACT prohibited mercury emissions from new and reconstruc ted facilities. On February 17, 2004, the Natural Resource s Defense Council (NRDC) submitted an administrative petition to EPA asking us to reconsider several aspects of the 2003 Mercury Cell MACT under
CAA section 307(d)(7)(B)
. In the administrative pet ition, t he
NRDC requested that EPA reconsider : (1) the decision to develop***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 11 of 78 a set of work practice requirements under CAA section 112(h) in lieu of a numeric emission limitation for cell rooms; (2) the decision to make the promulgated work practices optiona l for sources that choose to undertake continuous monitoring; (3) the decision to not require existing facilities to convert to a
mercury - free chlorine manufacturing process; (4) the elimination of the previously applicable part 61 rule’s 2,300 gram s /day plant

- wide emission limitation; and (5) the decision to create a subcategory of mercury cell chlor

- alkali plants within the chlorine production category. On the same day as the administrative petition , NRDC and the Sierra Club also filed a petition f or judicial review of the 2003 Mercury Cell MACT in the U.S. Court of Appeals for the D.C. Circuit (Civ. No. 04

- 1048). By a letter dated April 8, 2004, Jeffrey Holmstead, then

EPA Assistant Administrator for the Office of Air and Radiation, notified the NRDC that EPA had granted NRDC’s petition for reconsideration of the 2003 Mercury Cell MACT
. On July 20, 2004, the Court granted EPA’s motion to hold the case for judicial review in abeyance pending EPA’s action on the reconsideration of the 2003 Mercury Cell MACT. On June 11, 2008 (73 FR 33257), EPA proposed amendments in response to NRDC’s petition for reconsideration. Comments received on the 2008 proposed amendments were reviewed and considered by EPA
.***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 12 of 78 One commenter provided detailed comments on our proposed decision to not require existing facilities to convert to a
mercury - free chlorine manufacturing process. In addition to
comments on the EPA cost analysis described in our 2008
propos al , the commenter provided a report to support its
comments. We reviewed these comments, examined the commenter’s report , and concluded that our cost analysis could be improved. Therefore, we incorporated some aspects of the commenter’s cost analysis, and gathered additional cost information. In addition, w e considered the policy and legal comments made by the commenter regarding the benefits of nonmercury technology to produce chlorine
. Today’s notice summarizes the comments received on th e s e issue s , along with this supplemental proposal that reflects our consideration of these comments. There is also U.S. legislation , both recently enacted and proposed, that has or will have an impact on these mercury chlor

- alkali facilities . On October 14, 2008, President Bush signed the Mercury Export Ban Act of 2008 in to law. This law bans U.S. export of elemental mercury (effective in 2013 ) , requires the Department of Energy (DOE) to designate and manage a long

- term storage facility for elemental mercury , and prohibits the transfer of elemental mercury by federal agen cies
. Both houses of Congre ss are currently considering legislation that , if enacted, w ould affect this industry ( S.1428***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 13 of 78 and H.R. 2190 ). Th e s e bill s would amend the Toxic Substances Control Act to prohibit the use of mercury at chlor

- alkali facilities. The House bill would require the facilities to cease using mercury by 2013 if the plant chooses to close or by 2015 if the plant chooses to convert to no n mercury. If this legislation passes Congress and is signed by the President into law , we will evaluate the appropriate action for EPA in light of the scope and impact of th e law. **III. Summary of Proposed Amendments**
A. What are the proposed amendments? Today we are proposing to amend the 2003 Mercury Cell MACT by prohibit ing mercury emissions from existing mercury cell chlor

- alkali plants. This would make the standard for existing sources the same as the current standard for new and reconstructed sources, which is codified at 40 CFR 63.8190(a)(1). Since we believe it is imp ossible to operate a mercury cell chlor

- alkali plant with zero mercury emissions, this proposal would effectively require existing mercury cell chlor

- alkali plants either to convert to a nonmercury technology
or to cease production of chlorine with their c urrent mercury cell production methods
. If promulgated, this supplemental proposed rule would eliminate approximately 640 pounds of annual mercury emissions, and result in reduced energy demand of around***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 14 of 78 350,000 m egawatt hours per year , which is approxima tely equivalent to the energy produced by a 40 m egawatt power plant
. The pr oposed rule would provide a three

- year period from the date the final rule is published in the Federal Register to achieve zero mercury emissions from mercury cell chlor

- alkali

m anufacturing and from mercury recovery units
. To demonstrate compliance, each owner or operator would have to submit a report certifying that all mercury

- emitting processes have ceased operation permanently. This report would have to be submitted

no later than 120 days following the applicable compliance date. In addition, this proposed action would amend the provisions of the existing NESHAP that apply to periods of startup, shutdown, and malfunction. The revisions of these provisions is the result of a Court decision that invalidated certain regulations related to startup, shutdown, and malfunction in the General Pr ovisions of 40 CF R part 63 ( Sierra Club v. EPA , 551 F. 3d 1019 (D.C. Cir. 2008)). Consequently, the proposed revised rule would requir e that affected sources comply with the emission limitations and work practices at all times, including during periods of startup, shutdown, and malfunction. These changes would go into effect upon the effective date of promulgation of the final rule
. Fi nally, t h is proposed rule would correct errors and improve the compliance provisions of the rule . These changes,***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 15 of 78 which are described below, were included in the June 2008 proposal (73 FR 33275).

**•** The detection limit for continuous mercury monitor analyzers would be changed to a capability to detect a mercury concentration at or below 0.5 times the mercury concentr ation measured during the test or 0.1 μg/m3; and

**•** The frequency of determining continuous compliance with the emissions standard for mercury recovery units would be corrected to specify a daily average (rather than hourly) i n paragraph (b) of §63.8246 “How do I demonstrate continuous compliance with the e mission limitations and work practice standards?” in the 2003 Mercury Cell MACT.
B. How do these proposed amendments relate to the amendments
propose d on June 11, 2008? On June 11, 2008 (73 FR 33257), we published the results of our reconsideration of th e 2003 Mercury Cell MACT. One result of this re - consideration was that we proposed modifications to the work practice standards that apply to fugitive emissions, primarily those fugitive emissions from cell rooms. The proposed modifications to these work practices included requiring m ercury m onitorin g in the cell room for all facilities, along with daily work practices , with weekly certification of the performance of these work practices
. Establish ment of the “ a ction l eve l ” for investigating and***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 16 of 78 correcting high mercury concentration levels revealed by the continuous monitors would be done for a minimum of 14 days and up to 30 days, at least every six months , and t he a ction l evel would be set at the 90th percentile of the data acquired during the r e - setting time period(s). We also proposed to require mercury thermal recovery units that continue to operate at closed or converted plants to remain subject to the applicable requirements as long as they are in operation
. Finally, we proposed to correct typographical errors and to make technical corrections in the rule related to the compliance requirements. Five comments were received on the proposed amendments. These commenters represent one environmental organization, one industry trade organization, and two companies that own and operate mercury cell chlor

- alkali plants. The fifth comment was anonymously submitted in support of environmental organization s . We have reviewed and considered these comments. As discussed in section IV of this preamble , the consideration of

one of the issue s raised in the comments has caused us to publish this supplemental proposal today. If, after consideration of comments on this proposal, we decide to promulgate the amendments proposed in today’s notice prohibit ing m ercury emissions, we would not finalize the amendments proposed on June 11, 2008 , related to cell room operation , since th e 2008 proposed amendments presupposed that***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 17 of 78 mercury cell chlorine production processes would continue to be permitted to emit mercury and would become moot if we promulgate today’s proposed amendments
. As noted above, two minor amendments which were proposed on June 11, 2008, are repeated in this proposal. In addition, amendments are being proposed related to the requirements which app ly during startup, shutdown, and malfunction events. I f comments received on this proposal result in the withdrawal of the proposed prohibition of mercury emissions, we then might promulgate the amendments to the rule proposed on June 11, 2008 , and may incorporat e additional changes to the rule based on public comments. We may also promulgate the amendments proposed today related to startup, shutdown, and malfunction , even if this proposal is withdrawn
. **IV. Rationale for Proposed Amendments**
A. What is the basis for the proposed zero mercury standard ? 1. Technical information and analyses.

a . Background on the 2008 propos al and costs analysis Section 112(d)(2) of the CAA provides that emission standards for new or existing sources of hazardous air pollutants (HAP) shall require the maximum degree of reduction in emissions (including a prohibition on such emissions, where achievable) that EPA, taking into consideration the cost of achieving such emission reduction, and any non

- air quality***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 18 of 78 health and environmental impacts and energy requirements, determines is achievable through application of measures, processes, methods, systems or techniques. These may include, but are n ot limited to, measures which (A) reduce the volume of or eliminate emissions through process changes, substitution of materials or other modifications; (B) enclose systems or processes to eliminate emissions; (C) collect, capture or treat such pollutants when released from a process, stack, storage or fugitive emission point; (D) are design, equipment, work
pra c ti c e, or operational standards ; or (E) are a combination of the above. One of the claims presented in NRDC’s petition for reconsideration o f the 2003 Mercury Cell MACT was that E PA had not adequately considered nonmercury technology as a “ beyond

the

- floor ” MACT control measure for existing sources in the original rulemaking for the Mercury Cell MACT
. Further, NRDC claimed that the cost

- effe ctiveness of such a requirement, in terms of the annualized costs of control per pound of mercury eliminated, would be less than the $9,000 per pound of mercury emission reduction that EPA indicated was warranted for mercury emissions from this source cate gory in the original 2002 proposal (67 FR 44683, July 3, 2002)
. In response to this comment , we performed an analysis in 2008 to determine the capital and annual costs of requiring***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 19 of 78 nonmercury technology (Docket Item EPA

- HQ

- OAR

- 2002

- 0017

- 0088 ) ,
a s a beyond

- the

- floor MACT control determination
. Specifically, this analysis estimated the cost s and the cost

- effectiveness of converting the existing mercury cell chlor

- alkali plants to membrane cells. In a chlor

- alkali process, an electric current is passed through a salt solution or brine (sodium chloride or potassium chloride), causing the di ssociation of salt to produce chlorine gas and an alkaline solution (sodium hydroxide or potassium hydroxide). Hydrogen gas is also produced as a by

- product. This dissociation occurs in chlor

- alkali “cells,” where the chloride ions stripped from the brin e flow to the anode to form the chlorine product , and the sodium/potassium ions flow to the cathode, where they form the hydroxide product and hydrogen . In a mercury cell, the cathode is a flowing layer of liquid mercury. The sodium/potassium ions form an amalgam with the
mercury, w hich is routed to a decomposer. In the decomposer, the amalgam is reacted with water to form the hydroxide product and hydrogen. The mercury is then recycled. In the membrane process, the chlori de ions (at the anode) and th e hydrogen (at the cathode) are kept apart by a selective polymer membrane that allows the sodium ions to pass into the cathodic compartment and react to form the hydroxide
.***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 20 of 78 Conversion from mercury cells to membrane cells is technically possible at all ex isting mercury cell chlor

- alkali plants, although the amount of significant changes will vary for each individual situation. There are parts of the mercury cell plant that could be re

- used after conversion to the membrane cells. It could be possible to u se the existing cell room building for the new membrane cells, provided that the building is in good condition. However, constructing a new membrane cell room building would reduce the production losses as the mercury cells could continue to operate longe r throughout the conversion
process . Other equipment and processes that possibly could be retained include the rectifiers, the hydrogen treatment system, and the chlorine compr ession and liquefaction process
. Obviously, the mercury cells themselves (and associated decomposers) would have to be replaced by membrane cells. Membrane cells need purer brine than mercury cells, so a completely new brine purification system would likely be needed. Other equipment that would commonly need to be totally replaced include the sodium/potassium hydroxide concentration unit and evaporation system, the chlorine gas drying and chlorine gas absorption units, the power supply unit (excluding the rectifiers), pumps, instruments, and much of the piping. In performing the c ost analysis, we used data from readily

ava ilable sources of information. In o ur 2008 proposal, we***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 21 of 78 estimated that the average cost

- effectiveness associated with conversion to nonmercury technology would be approximately $1 4 ,000 per pound of mercury emissions eliminated , as opposed to $9,000 per pound . Further, o ur 2008 analysis predicted the average capital cost of conversion for one mercury cell chlor

alkali facility in the U.S. to be approximately $ 68 million per plant. The average an nualized facility costs for this conversion were estimated to be approximately $ 7.5 million per plant. Nationwide, the capital cost was estimated to be nearly $340 million and the annual costs around $38 million for the five facilities in operation at the time
. We estimated that
t his cost impact would be approximately 11 percent of revenues. As a result of these analyses, we proposed in 2008 to reject conversion to nonmercury technology as a beyond

- the

- floor control requirement
. b . Summary of c omments r eceived on 2008 c ost a nalysis
One environmental commenter disagreed with both our technical analysis and resulting conclusions in the 2008
pr o posal , and claimed that the switch to nonmercury technology would be economical . The commenter maintained that conversion could save millions of dollars annually per plant , with the majority of these savings being related to energy costs alone. The commenter argued that our 2008 proposal failed to recognize or take advantage of th ese savings , instead allowing a sm all***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 22 of 78 number of plants to operate to the end of their useful lives while emitting mercury into the environment.
T he commenter said that EPA considered only the costs associated with the conversion, without considering the net cost or economic benefit. The commenter maintained that it is likely that any plant that converts will experience substantial benefits , including an increase in energy efficiency between 25 and 35 percent per ton of chlorine produced. The commenter claimed that this increased energy e fficiency could amount to savings of more than $98.6 million over five years. Furthermore, the commenter pointed out that membrane cells are smaller than mercury cells, which would allow plants to increase their chlorine capacity as much as 25 percent, le ading to increased sales and additional energy savings due to the additional capacity. The commenter submitted a report that it prepared which provided individualized cost analyses for each of the remaining mercury cell chlor

- alkali plants ( Docket Item EPA

HQ

- OAR

- 2002

- 0017

- 0094.3) . According to the commenter, its report proves that conversion would pay for the majority of it s cost in five years. T hus , the commenter concluded that EPA’s proposal was incorrect to suppose a “high cost impact” of conversion to nonmercury technology , and claimed that EPA should heed the evidence that conversion is not only economically***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 23 of 78 feasible b ut beneficial and mandate conversion to nonmercury technology as a beyond

- the

- floor control requirement.

c . Revised 2009 cost analys e s
In the second quarter of 2009, in anticipation of this supplemental proposal, we performed a revised beyond

- the

- floor cost analysis to address comments received on the 2008 proposed amendments described above
. While we agree with many of the comments in favor of a conversion to mercury

- free technology , the impacts, particularly the savings and benefits, of a forced

conve rsion to membrane cells might not be universally applicable since the conditions and benefits are not the same at every facility. We do agree , however, that the s e facilities would achieve some savings associated with lower electricity and the elimination of environmental compliance costs for water treatment, waste disposal, and mercury monitoring , and that
t hese items should be added to the EPA cost analyses
. Therefore, without assum ing that a uniform energy savings would

accrue to every f acility currently operating, we updated our analysis to consider the energy costs savings. We also amended our analysis to include savings fr om the elimination of waste treatment, waste disposal, and mercury monitoring. On June 5 , 2009, we developed a revised and updated analysis of conversion costs for the industry
. This analysis was posted as a***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 24 of 78 memorandum in the docket ( Docket Item EPA

- HQ

- OAR

- 2002

- 0017

- 0098 ). Subsequent to the posting of th e June 5, 2009, memorandum, i ndustry representatives provide d comments on the revised analysis ( Docket Items EPA

- HQ

- OAR

- 2002

- 0017

- 0 100, 0101, 0102, and 0103). One of t he major comment s raised by industry representatives on our revise d analysis regard ed t he 2006 mercury emission levels used to estimate the cost

- effectiveness of conversion to nonmercury technology. The industry representatives stated that these data we re considerably higher than their more recently reported emissions
. In addition, the industry representatives stated that the capital and annual
costs in our 2008 analysis we re underestimated
. The industry representatives also believe d that the annual energy savings were overstated because the se savings did not take into account the additional energy and fuel that would be needed to concentrate the caustic by

- product obtained using membrane cells , which is produced at 33 percent purity, to the 50 percent purity obtained using the mercury cell process . T he industry representatives also commented that the June 2009 cost analysis : (1) underestimated the mercury storage costs ; (2 ) used an interest rate that was in practicality too low for calculat in g the capital recovery factor ; (3) erroneously used information from a European study to estimate the savings due to the***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 25 of 78 elimination of the mercury process that were not applicable to the U.S.; and (4) did not consider decommissioning costs. Consequently, w e considered the industry comments and, in ins tances where specific relevant data were provided or available , we incorporated the information into a nother revised
cost analysis dated September 15, 2009, which was placed in the docket ( Docket Item EPA

- HQ

- OAR

- 2002

- 0017

- 0105 ). Th e September 2009 updated cost analysis for conversion to membrane technology estimate d that th e costs to convert the four remaining mercury cell plants to be nearly $ 336 million in total capital costs and almost $ 36 million per year in total annual costs, considering electricity and other savings. The cost

- effectiveness of conversion based on this September 2009 analysis was about $ 66,000 per pound of mercury
. In this analysis, we did not add certain highly variable
costs mentioned by the industry commenter that the commenter stated could potentially be incurred by a plant when making a change to nonmercury technolo gy. These variable costs include loss es in production , building replacement, plant decommissioning, and many others that are likely to be highly variable from facility to facility . We believe that the magnitude of these costs, although very likely to occur for most facilities , would depend on factors such as the condition of the existing buildings , available space on the facility site to***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 26 of 78 erect a new cell room building to avoid production losses , and possibly other unknown factors
. We a lso received comments from

an environmental group on the revised 2009 cost analys e s. T he complete comments can be found in the docket ( Docket EPA

- HQ

- OAR

2002

- 0017 ). The commenter stated that the capital costs estimated by EPA are too high and t he EPA analysis does n ot uniformly account for expansion during conversion . In addition, the comment er stated that t he regression formula of cost vs. capacity used to establish an equation is incorrect since there is no relationship between capital costs and capacity when

cons idering the full set of relevant data rather than just
recent U.S. facilities. Also, the commenter stated that the

c apital costs should be annualized over a longer period than the 15 years used in the analysis since 30 years is a more likely useful life. The commenter also made the following points : t he energy savings estimated by EPA are too low, since higher reductions in electricity consumption are common place ; t he EPA cost estimate for producing steam double

- counted the cost associ ated with concentrating caustic and did not account for the fact the steam could be obt ained on

- site without expense; the c ost savings for environmental compliance avoided are underestimated ; and the d ecommissioning costs are already included in estimates of***E.O. 12866 Review

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convers ion since many factories include the cost of dismantling and decommission in the reported cost of conversion. In addition, t he commenter recommended that in evaluating the costs, EPA should use the average sales per establishment instead of the average sal es per ton of chlorine capacity because the commenter believe s that the latter term grossly underestimates sales. The commenter also stated that s ocietal
costs of conversion to nonmercury technology could result in a savings of $4.6 billion in economic pr od uctivity and , within 30
years , could result in an average of $28 million in societal benefits from each facility. The commenter also believed that the industry

- supplied emission estimates are not reliable and

are likely underestimated , thus overestimating the costs per pound of mercury emissions prevented.
F inally, the commenter stated that EPA’s overall conclusion does not reflect the real world since over 100 plants have made the conversion globally and a t least five chlor

- alkali fa cilities expected or received a complete repayment from their investment within five years
. d . Cost A nalysi s for Supplemental Proposal Many of the comments we received on the September 2009 cost analysis were considered and used to estimate costs that represent the outcome of a potential conversion to nonmercury technology. The estimated costs for th is proposed rule,***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 28 of 78 assuming that all four currently operating mercury cell chlor

alkali plants convert to membrane cell technology , include tota l
U.S. capital costs of approximately $ 300 million dollars, with individual plant capital costs ranging from a low of $ 28 million
to a high of approximately $ 160 million. Our analysis does show that, in the hypothetical situation that a single plant could incur the lowest possib le costs while also realizing the highest possible energy and other savings, there could be an overall cost savings in the conversion from mercury cells to membrane cells. However, we do not believe that this scenario is realistic. Using more conservative assumptions, our best estimate is that the average annual costs would be between $ 800,000 and $ 6
. 6 million per year per plant. The total U.S. annual costs are estimated to be $ 13 million per year . Base d on these cost s and the es timate d mercury emissions for each facility , the cost

- effectiveness , in terms of annual ized costs per pound of mercury eliminated , is approximately $ 20 , 0 00 per pound for the industry, with a range of around $ 13,000 to $ 31 ,000 per pound for the individual facilities. This is within the range of cost

- effectiveness impacts that we have previously found to be reasonable. In addition to cost analys e s, we also conducted an economic analysis of the impacts of the zero mercury beyond

- the

- floor option. An impact analysis that compared annual costs to sales***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 29 of 78 showed that the one small entity’s cost

- to

- sales ratio (CSR) would range from 1 to 2 percent, which suggests a significant economic impact. The CSRs for the three other parent companies are below 1 pe rcent. A profitability effects analysis suggested that the conversion costs could reduce the margins by 10 to 20 percent. Each of the four facilities could elect to c lose rather than convert to non mercury technology. Since 2003, six mercury cell facilit ies have ceased operation. Three of these plants have elected to close, and three have elected to convert. Although EPA does not have sufficient data to definitively determine whether individual companies would choose to convert or close the affected pla nts, the data suggest that plant closure may be the owner’s preferred alternative to meet the requirements of the proposed rule
. If all four plants elected to close rather than convert, w e estimate that over 1,000 jobs providing over $50 million in wages could be directly affected by closure of all four plants. Details of the economic analysis are discussed below in section V.A. 2

e . Effects of mercury Mercury is a naturally occurring element that is found in air, water, and soil in various forms. In ge neral, industrial sources emit different combinations of three different species: elemental mercury, inorganic mercury compounds (e.g., mercuric chloride) , and particulate mercury. The deposition of these***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 30 of 78 emissions could, under circumstances described below, lead to formation of an organic form, methylmercury. The majority of mercury emitted from mercury cell chlor

alkali plants is elemental, with a small fraction being inorganic mercury. In general, for elemental mercury, inhalation is the primary direct exposure route of potential concern. Effects on the nervous system appear to be the most sensitive toxicological endpoint and can include tremors, nervousness, insomnia, neuromuscular changes (such as we akness, muscle atrophy, and muscle twitching), headaches, polyneuropathy, and memory loss. In general, for inorganic mercury compounds , both i nhalation and ingestion exposure routes are of potential interest. Effects associated with h igh exposures to i norganic
mercury compounds include damage to the gastrointestinal tract, the nervous system, and the kidneys. The most sensitive general systemic adverse effect due to exposure to inorganic mercury compounds is the formation of autoimmune glomerulonephriti s (that is, inflammation of the kidney). Specific s ymptoms of high exposures to inorganic mercury can include skin rashes and dermatitis; mood swings; memory loss; mental disturbances; and muscle weakness. Mercury that is emitted can be atmospherically transport ed different distances depending on the species. While inorganic***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 31 of 78 mercury is generally transported relatively short distances before depositing, elemental mercury, barring any topographical interferences, can enter the global pool and remain in ci rculation up to 12 months prior to deposition. Once deposited, natural processes , particularly in water bodies, can transform some of the mercury into methylmercury, which is a highly toxic, more bioavailable form that bioaccumulates in organisms and then biomagnifies in the aquatic food chain (such as in fish). Thus, the ingestion route via f ish consumption dominates the pathway for human and wildlife exposure to methyl mercury . S ymptoms of methylmercury poisoning may include : impairment of the periphera l vis ion; disturbances in sensations ; lack of coordination of movements; impairment of speech, hearing, walking; and muscle weakness. In general, w hile adults

can experience effects from high ingestion exposure to methylmercury , exposures to developing fet uses , infants, and children can pose the highest concerns. For fetuses, infants, and children, the primary health effect of methylmercury is impaired neurological development. Met hylmercury exposure in the womb can adversely affect a baby's growing brain and nervous system. Impacts on cognitive thinking, memory, attention, language, and fine motor and visual spatial skills , all of which can result in learning disabilities, have been seen in children exposed to m ethylmercury.***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 32 of 78 In general, avoidance of any potential for these severe health effects can result from reducing the amount of mercury released to the air, water, and other media. The four existing mercury cell chlor

- alkali plants emit around 640 pounds of mercury each year to the air , based on recent estimates
. They also release a total of just under 1 ton of mercury per year to other media, including around 50 pounds per year to water. The proposed amendments would result in the elimination of these rel eases in the future , and therefore could have beneficial non

air quality health and environmental impacts
. In addition, mercury cell chlor

- alkali plants are commonly identified as contaminated sites and designated for correction action under the EPA Super fund or Resource Conservation and Recovery Act (RCRA) corrective action programs. In fact, three of the four currently operating mercury cell plants have been identified under the RCRA corrective action program
. The shutdown of the mercury cell processes would accelerate the clean

- up of these sites , again resulting in beneficial non

- air quality health and environmental impacts
. 2. Rationale for selection of the zero mercury standard While t he result s of th e s e add itional analys e s w ere that the costs and cost

- effectiveness values de creased from those estimated in our 2008 analysis , there is still some uncertainty regarding numerous facets of the cost analysis
. Since the low er***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 33 of 78 estimates of potential costs show that conversion to nonmercury technology may be a reasonable investment action in the long term, we are proposing this supplemental amendment to request a complete set of comments on the costs presented here in order to prepare a final cost analysis to support or not support a standard for zero mercury emissions. Once all comments are received, we will re - evaluate whether or not these costs constitute an unreasonably high cost impact given the benefits of zero mercury emissions to publ ic health , the environment , and to energy use . We gave serious consideration to the comments we received that stated the use of mercury in chlor

- alkali plants is
unnecessary since over 95 percent of the chlorine produced in the U.S. is already produced using mercury

- free technology. Forcing these plants to swi tch to mercury

- free technology w ould eliminate the approximately 0. 5 ton s of mercury release d per year . In the 2008 proposal, we rejected the conversion to nonmercury technolog y as a beyond

- the floor option because of the high cost impacts. The total annual costs estimated at that time were around $38 million, or around $7.5 million per facility on average for each of the five facilities operating at that time. The revised cos t analysis described above estimates total annual costs of around $13 million, which averages to just***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 34 of 78 over $3 million per facility. Therefore, the current estimated conversion costs are around 60 percent lower than those driving our decision in 2008. Wit h regard to cost

- effectiveness, we state d in the original proposal of the Mercury Cell MACT Standard in 2002 (67 FR 44683) that we considered the additional mercury emission reduction achieved by the beyond

- the

- floor option for hydrogen by

- product vents an d end

- box ventilation systems to be warranted at an incremental cost

- effectiveness of $9,000 per poun d of mercury emission reduction. We did not indicate that this cost

effectiveness level represented an upper end of acceptability , and in other contexts, such as the Clean Air Mercury Rule ( 70 Federal Register 28606 , 05/18/2005 ) , a

a On March 29, 2005 , EPA published a final rule ( 70 FR 15994 ) entitled ‘‘Revision of December 2000 Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units and the Removal of Coal

- and Oil

- Fired Electric Utility Steam Gen erating Units from the Section 112(c) List (Section 112(n) Revision Rule).” Following that final action, the Administrator received two petitions for reconsideration. In response to those petitions, EPA announced (Federal Register, Vol. 70, October 28, 20 05, p. 62200) the reconsideration of certain aspects of the Section 112(n) Revision Rule, but these aspects did not include costs related to mercury control or cost

- effectiveness. we have found even larger
cost

- effectiveness factors to be reasonable . Similarly, in our 2008 proposal of amendments, we did not conclude that a cost

effectiveness value of $14,0 00 per pound of mercury emission reduction was unacceptable, as this was one of several cost and***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 35 of 78 economic factors considered that led to our conclusion regarding the high cost impact of the beyond

- the

- floor option of forced conversion. Historically, EPA ha s not established a clear cost

effectiveness level for mercury reductions that are consider ed acceptable. In fact, we have rejected regulatory alternatives for mercury with cost

- effectiveness values of $5,000 per pound, and accepted regulatory strategie s with estimated cost

effectiveness values of $39,000 per pound , in the cas e of the Clean Air Mercury Rule
. b

We also recognize that the mercury cell technology is an outdated technology that has been largely phased out in the U.S. even without a zero mercury emissions requirement and even with the high costs of the conversion process
. While the economic analysis suggests significant adverse economic impacts could Obviously, when making decisions regarding regulatory approaches to achieve mercury reductions, we have looked at cost in conjunction with many other factors to assess the reasonableness of possible control strategies
.

b The costs of complying with CAMR as a whole are discussed briefly in the preamble to the final rule [Federal Register, Vol. 70, No. 95, May 18, 2005, pp. 28606

- 28700. Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units (40 CFR Parts 60, 72, and 75)], and in more detail in two items in the two air dockets for the CAMR rule: EPA Office of Research and Development’s White Papers ‘‘Control of Mercury Emissions from Coal Fired Electric Utility Boilers." Docket ID No. OAR

– 2002

– 0056 and Docket ID No. A

– 92

– 55.***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 36 of 78 occur if all four plants closed rather than convert to nonmercury technology , w e believe that it is possible that one potential outcome of this proposed rule is that some companies wi ll convert rather than close , if the recent incidence of conversion to nonmercury technology by the U.S. chlor

- alkali industry continue s . Therefore, the negative economic effects de scribed above would be mitigated if only some o f the four facilities close d
. We also believe that any near - term negative economic impacts are justified given the potential adverse health and environmental effects of mercury that will be reduced permanently in to the future. Therefore, w e are proposing this

a mendment to request comments on whether the benefits of achieving zero mercury emissions from this industry , as a beyond

- the

- floor control alternative , are warranted given the foregoing discussion
. B. What is the basis for the proposed rule changes related to startup, shutdown, and malfunction?
T he United States Court of Appeals for the District of Columbia Circuit vacated portions of two provisions in EPA’s CAA Section 112 General Provisions regulatio ns governing the emissions of HAP during periods of startup, shutdown, and malfunction (SSM). Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008). Specifically, the Court vacated the SSM exemption in 40***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 37 of 78 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1). When incorporated into CAA Section 112(d) regulations for specific source categories, these two provisions exempt ed sources from the requirement to comply with the otherwise applicable CAA section 112(d) emission standard during periods of SSM. The 2003 M ercury Cell MACT Subpart included a reference to 40 CFR 63.6(f)(1) , as well as regulatory text unique to the 2003 Mercury Cell MACT that exempted compliance with standards during SSM events . It did not include a reference to 40 CFR 63.6 (h)(1), since the rule does not have opacity and visible emission standards . In light of Sierra Club v. EPA, we are proposing to revise Table 10, which addresses the applicability of the Part 63 General Provisions to mercury cell chlor

- alkali plants, to state that 40 CFR 63 .6(f)(1) does not apply. As such, all emission standards and work practices would apply at all times. We are also proposing to remove other references in subpart IIIII and Table 10 related to SSM , including provisions that exempted compliance with standar ds during SSM periods
. First, regarding the references to the vacated portions of the General Provisions, EPA believes that deleting those references is a ministerial action that is compelled by the Court’s 2008 ruling in Sierra Club . Regarding the provis ions in the 2003 Mercury Cell MACT that independently (without merely referring to the vacated portions of the General Provisions) exempt compliance during SSM***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 38 of 78 periods, EPA does not believe it is appropriate to propose rule revisions that leave in place ex isting provisions that are inconsistent with the decision of the D.C. Circuit. Regarding startup and shutdown modes of operation at mercury cell plants, EPA does not consider emissions during these periods to be significantly different than emissions duri ng normal operation, and therefore is not proposing separate limits that would apply during these periods. We do not have any information that shows emissions at mercury cell plants would be significantly different during startup or shutdown than during n ormal operation. Nor do we have information suggesting that the emissions control measures required by the 2003 rule would be less effective during startup or shutdown periods. In addition, EPA does not view malfunction as a distinct operating mode and, therefore, any emissions that occur at such times do not need to be taken into account in setting CAA section 112(d) standards. Malfunctions are distinguishable from startup, shutdown and normal operations, which are all predictable and routine aspects of a source’s operations. By contrast, malfunction is defined as a “sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or useful manner [. . .] ” (40 CFR 63.2). We note that CAA section 112 uses the concept of “best performing”***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 39 of 78 sources to define MACT, the level of stringency that major source standards must meet. It is reasonable to interpret section 112(d) as not requiring EPA to account for ma lfunctions in setting emission standards. Applying the concept of “best performing” to a source that is malfunctioning presents difficulties. The goal of best performing sources is to avoid malfunctions of their units. Consequently, MACT should not be b ased on periods in which there is a failure to operate. Moreover, even if malfunctions were considered a distinct operating mode, we believe it would be impracticable to take into account malfunctions in setting CAA section 112(d) standards. As noted above, malfunctions are sudden and unexpected events, and it would be difficult to set a standard that takes into account the myriad different types of malfunctions that can occur across all sources. Moreover, malfunctions can vary in frequency, degree, a nd duration, further complicating standard setting. This approach will encourage shutdowns as soon as practicable when a malfunction that affects emissions occurs. In the event that a source fails to comply with the applicable
CAA section 112(d) standards as a result of a malfunction event, EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and***E.O. 12866 Review

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correc tive actions, as well as root cause analyses to ascertain and rectify excess emissions. EPA would also consider whether the source’s failure to comply with the CAA section 112(d) standard was, in fact, “sudden, infrequent, not reasonably preventable” and was not instead “caused in part by poor maintenance or careless operation.” 40 CFR 63.2 (definition of malfunction).
C
. What is the basis for the proposed rule corrections ? 1. Detection limit for mercury monitor analyzers. Paragraph (a)(2) of §63.82 42, “ What are the installation, operation, and maintenance requirements for my continuous monitoring systems? ” requires that mercury continuous monitor analyzers have a detector with the capability to detect a mercury concentration at or below 0.5 times th e mercury concentration level measured during the performance test. Since promulgation of the 2003 Mercury Cell MACT , we determined that setting the analyzer detection capability in reference to the concentration level during the performance test could be problematic. We realized that a concentration of 0.5 times the mercury concentration could, in cases of low mercury concentrations , be infeasible for the monitoring devices on the market. I nformation available to us at this time shows that 0.1 μg/m3 is the detection limit of commonly commercially available analyzers. We believe that analyzers with detection limits at***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 41 of 78 this level are more than sufficient to determine compliance with the limitations in the 2003 Mercury Cell MACT . Therefore, we are proposi ng to revise this paragraph to require a detector with the capability to detect a mercury concentration at or below 0.5 times the mercury concentr ation measured during the
test or 0.1 μg/m3. 2. Averaging period for mercury recovery unit compliance. The 2003 Mercury Cell MACT is inconsistent as to whether the rule requires a daily average or an hourly average to determine continuous compliance with the emissions standard for mercury recovery units found at §63.8190(a)(3) of § 63.8190 “ What emission limitati ons must I meet? ” Paragraph (b) of § 63.8243

“ What equations and procedures must I use to demonstrate continuous compliance? ” clearly indicates that this averaging period is daily : “you must calculate the daily average mercury concentration using Equation 2 . . . ” However, paragraph (b) of § 63.8246 “ How do I demonstrate continuous compliance with the emission limitations and work practice standards? ” states that for each mercury thermal recovery unit vent, “you must demonstrate continuous compliance with the applicable emission limit specified in §63.8190(a)(3) by maintaining the outlet
mercury hourly

- average concentration no higher than the applicable limit.”***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 42 of 78 It was our intention for compliance to be based on a daily
average, as detailed below, and the inclusion of “ hourly ” in paragraph (b) of § 63.8246 “ How do I demonstrate continuous compliance with the emission limitations and work practice standards? ” was a drafting error. Therefore, we are proposing
to cor rect this error by replacing “ hourly ” in §63.8246(b) with

“ daily .” I n the proposal Federal Register notice for the 2003 Mercury cell MACT (67 FR 44678, July 3, 2002) , we clearly stated our intention whe n we summarized the requirements as follows :

“ To continuously comply with the emission limit for each by

- product hydrogen stream, end

- box ventilation system vent, and mercury thermal recovery unit, we are proposing that each owner and operator would continuously monitor outlet elemental mercury concentra tion and compare the daily average results with a mercury concentration operating limit for the vent . . . .”

“ Continuous compliance would be demonstrated by collecting outlet elemental mercury concentration data using continuous mercury vapor monitor, ca lculating daily averages, and documenting that the calculated daily average values are no higher than established operating limits. Each daily average vent elemental mercury concentration greater than the established operating limit would be considered a d eviation.
D . What is our rationale for doing a supplemental proposal? The prohibition of mercury emission requirement that we are proposing today is a result of comments received on the amendments proposed on June 11, 2008
. W e will examine and analy ze all comments received on today’s proposal and then we will take final action that may either: (1) promulgate today’s proposed prohibition of mercury emissions, (2) promulgate th e***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 43 of 78 amendments proposed on June 11, 2008 , or (3) respond to comments we receiv e and promulgate other amendments that are supported by the data
. However, t he compliance errors that we proposed to
correct in our 2008 amendments likely will be promulgated in either pathway since the facilities will n e ed to comply with the Mercury Chlor

- alkali MACT for at least a few more years even if we promulgate a beyond

- floor zero mercury standard
. The amendments to SSM provisions will also likely be promulgated under either pathway. We also will likely require mercury thermal recovery units that continue to operate at closed or converted plants to remain subject to the applicable requirements of the Mercury Cell MACT as long as they are in operation
. **V. Impacts of Proposed Amendments**
A. What are the cost and economic impacts of this proposal? 1. Cost Impacts
T he estimated costs for the proposed rule, assuming that all four currently operating mercury cell chlor

- alkali plants convert to membrane cell technology , include total U.S. capital
costs of approximately $ 300 million dollars, with individual plant capital costs ranging from a low of $ 28 million to a high of approximately $ 160 million. The total U.S. annual costs are estimated to be around $ 13 million per year, ranging from a low of $ 800,000 per plant per year to almost $ 7 million per plant.***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 44 of 78 Based on these cost s and the reported mercury emissions for 2008 for each facility, c

2. Economic Impacts the cost

- effectiveness, in terms of annualized costs per pound of mercury eliminated, is estimated to be approximately $ 20 ,000 per pound , which is less than the $39,000 per pound level we found reasonable in the Clean Air Mercury Rule
. A memorandum that documents the details of this cost analysis can be found in t he docket
. We are specifically requesting comment on our analysis, along wi th facility

- specific data , to allow a refinement of the analysis for this proposed rule.

A n economic impact analysis (EIA) and small business screening analysis was performed for th is proposed rule that would amend the NESHAP to prohi bit emissions of mercury from the mercury cell chlor

- alkali process. A report that documents the EIA methods and results can be found in t he docket (EPA

- HQ

- OAR

2002

- 0017 ). Although individual plant information would be the best method to assess the true economic impacts of the rule, detailed information for this industry was not public ly available. As a result, we relied on parent company information provided in company annual reports (e.g., form 10

- K), local press and industry trade publications, and c ompany Web sites.

c For the purpos e of this analysis, we assumed that the mercury emissions from the ASHTA facility were 100 pounds per year.***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 45 of 78 T here are many aspects of th e cost estimate for conversion that are unknown or difficult to assess. While we believe that we have evaluated the conversion cost information available to us at the time of this action, the true costs may v ary considerably
. However, v ariation in engineering costs is not expected to cause a significant difference in the general conclusions of th e EIA.
We performed a n analysis that compared the annual conversion costs to sales. We estimate d that the CSR of AS H TA, the one small business in this industry, would range from one to
two percent using the costs presented in this proposal . The other three plants are owned by large parent companies with significant company

- wide sales. As a result, the CSRs for thes e large parent companies are below one percent. W hen single plant sales were considered, the CSRs for the mercury cell chlor

alkali plants owned by large parent companies ranged from 4 to 9 percent.
We also analyzed industry profitability effects by

c omparing the annual conversion costs to reported industry margins for a representative electrochemical unit (ECU). This analysis confirms the results of the sales comparisons that plant conversion costs will likely have an economically significant effect. C onversion costs could reduce the margins by 1 0 to 20 percent.***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 46 of 78 This proposed rule would force owners of mercury chlor

alkali plants to make an investment decision based on the costs of conversion as opposed to the futu re benefits of the conversion. This proposed rule could lead to plant shutdowns that would involve adjustment costs for people working at the affected plants. Affected plants may also have strong links with other firms or downstream markets; as a result, secondary consequences of the regul ation are important to consider. Many owners have converted from mercury cell chlor

- alkali technologies in Europe and the U.S. , while other mercury cell chlor

- alkali plant owners have concluded the investment decision was currently not in their company’s interest given their assessment of future economic conditions , and have shutdown their mercury cell chlor

- alkali plants instead
. Since 2003, three U.S. mercury cell chlor

- alkali facilities have closed and three have converted. Specifically, the Occident al Chemical mercury cell chlor

- alkali facilities in Delaware City, Delaware, Muscle Shoals, Alabama, and Deer Park, Texas , have closed; while the PPG facility in Lake Charles, Louisiana, the ERCO facility in Port Edwards, Wisconsin, and the Pioneer c hlor

- a lkali facility (now owned by Olin) in St. Gabriel, Louisiana , have converted to membrane cells. We do not have sufficient data to predict whether individual companies would choose to convert or close the***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 47 of 78 affected mercury cell chlor

- alkali plants . However, the data obtained in this study suggests that plant closure may be a preferred alternative to meet the requirements of the proposed rule for one or more of the mercury cell chlor

- alkali plants
. If all four plants elected to close rather than convert,
app roximately 1,000 jobs providing over $50 million in wages could be dir ectly affected
. Whether plants convert or close, however, there is the possibility of temporary jobs created for the conversion or decommissioning of the plants
. As noted above, individual plant information was not available to perform a refined analysis of whether these mercury cell pl ants would likely convert to non mercury technology or close. We are specifically requesting comment on our analysis, along with facility

- specific data , to allow a refinement of the analysis for this proposed rule
. B. What are the environmental and energy impacts of this proposal? We estimate that the total mercury emissions from the four mercury cell operating facilities to be around 64 0 pounds pe r year . This proposed rule would reduce mercury emissions by this
amount. T hese four facilities reported almost 2,000 additional pounds of on

- site and off

- site mercury releases to media other than air per year . These releases would be eliminated in the longer term , with consequential benefits for non

- air quality***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 48 of 78 related health and environmental values
. The potential problems associated with the handling and continuous management of over 1,200 tons of virgin mercury that is used in the cells at these fou r chlor

- alkali plants would also be eliminated. In addition, approximately two tons of this mercury was reported by the industry as “ unaccounted ” in 2008. This proposed rule would eliminate the unaccounted mercury as well. The membrane cell chlor

- alka li process requires less energy than the mercury cell process. Therefore, assuming that all four existing mercury cell chlor

- alkali plants convert to membrane cells, there would be a savings in energy. We estimate that this savings would be around 350 ,000 m egawatt hours per
year , which is approximately equivalent to the energy produced annually by a 40 m egawatt power plant
. I n the short term, the conversion of these facilities would result in the need to dispose of mercury - contaminated wastes. While there is considerable uncertainty in q u antify ing the amount of these wastes, we estimate that the re could be around 7,000 cubic meters of mercury contaminated waste generated that could contain around six tons of mercury. As stated above, o ver 1,200 to ns of virgin or process
mercury from the facilities would need to be dealt with whether the facilities close or convert to nonmercury technology
. T he Mercury Export Ban Act of 2008 , discussed earlier , would***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 49 of 78 prohibit this mercury from being exported. Ther efore, this
mercury would need to be stored or sold domestically. Since mercury is a hazardous substance, it cannot be stored without a permit; hence , DOE is planning to build a federal facility to accommodate the excess mercury that result s from the expo rt ban. We are specifically requesting comment on our analysis, along with any facility

- specific data , to allow a refinement of the analysis for this proposed rule.
**V I**  **. Statutory and Executive Order Reviews**
A. Executive Order 12866: Regulatory Planning and Review This action is a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 71735, October 3, 1993) because it may raise novel legal or policy issues
. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. In addition, EPA prepared an analysis of the potential costs and benefits associated with this action. A copy of the analysis is available in the docket for this action and the analysis is briefly summarized above in section V.A.
B. Paperwork Reduction Act The information collection requirements in this proposed rule , h ave been submitt ed for approval to OMB under the***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 50 of 78 Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information collection request (ICR) document prepared by EPA has been assigned an EPA ICR number 2046.06. The OMB has previously approved the information collection
req uirements in the existing regulation (40 CFR 63, subpart IIIII) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060

- 0542. The OMB control numbers for EPA’s regulations in 40 CFR are listed i n 40 CFR part 9. These proposed amendments result in changes to the information collection requirements in the regulation. This information is being collected to assure that mercury emissions have been eliminated . The required notifications, reports, an d records are essential in determining compliance, and are required of all affected facilities. The recordkeeping and reporting requirements in this proposed rule are based on the requirements in EPA’s NESHAP General Provisions (40 CFR part 63, subpart A)
. The recordkeeping and reporting requirements in the General Provisions are mandatory pursuant to section 114 of the CAA (42 U.S.C 7414). All information other than emissions data submitted to EPA pursuant to the information collection requirements for which a claim of confidentiality is made is safeguarded according to CAA section 114(c) and the Agency’s implementing regulations at 40 CFR part 2, subpart B.***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 51 of 78 The only information collection associated with the proposed amendments is a one

- time certificat ion that must be submitted 60 days after the compliance date. It is estimated that the burden for this information collection is 3 labor hours per response per facility, for a total of 12 labor hours for all four facilities. This burden will occur during the first year after promulgation, but t he annual burden for this information collection averaged over the three years following the compliance date of these amendments is estimated to be a total of 4 labor hours per year. Burden is defined at 5 CFR 1320.3(b). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA ’ s regulations in 40 CFR are listed in 40 CF R part 9. To comment on the Agency’s need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, EPA has established a public docket for this action, which includes this ICR, under Docket ID number EPA

- HQ

- OAR

- 200 2

- 0017. Submit any comments related to the ICR for this proposed rules to EPA and OMB. See “Addresses” section at the beginning of this notice for where to submit comments to EPA. Send comments to OMB at the Office of***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 52 of 78 Info rmation and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after [INSERT DATE OF
PUBLICATIO N IN THE FEDERAL REGISTER], a comment to OMB is best assured of having its full effect if OMB receives it by [INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]. The final rule will respond to any OMB or public comments on the information coll ection requirements contained in these proposed amendments.
C. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requir ements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not

- for

- pro fit enterprises, and small governmental jurisdictions. For the purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) a small business that meets the Small Business Administration size standards for sm all businesses, as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 53 of 78 small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 5 0,000; and (3) a small organization that is any not

- for

- profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this proposed rule on small entities, I certify that this actio n will not have a significant economic impact on a substantial number of small entities. This proposed rule is estimated to impact a total of four source s, w ith one of the four facilities estimated to be a small entity. We have estimated that small entit y compliance costs, as assessed by the facilities’ CSR , are expected to be just over 1 percent of revenues. New sources are already prohibited from using the mercury technology in the chlor

- alkali production pr o cess by virtue of the 2003 Mercury Cell MACT’s provisions; consequently, we did not estimate any impacts for

new sources since this rulemaking would not impose any new requirements on them
. T his proposed rule will not have a significant economic impact on a substantial number of small entities, since there is only one small entity in the group of four facilities and compliance costs for this small entity are expected to be just over 1 percent of revenues. However, w e continue to be interested in the potent ial impacts of this proposed action on***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 54 of 78 small entities and welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act This action contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates
Re form Act of 1995 ( UMRA) , 2 U.S.C. 1531

- 1538 for State, local, or tribal governments or the private sector. The action imposes no enforceable duty on any State, local or tribal governments or the private sector. (Note: The term “enforceable duty” does not include duties and conditions in voluntary federal contracts for goods and services.) Therefore , this action is not subject to the requirements of sections 202 and 205 of the UMRA. This action also is not subject to the requirements of section 203 of
UM RA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255, August 10, 1999 ) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in t he Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 55 of 78 distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various le vels of government, as specified in Executive Order 13132. This proposed rule does not impose any requirements on State and local governments. Thus, Executive Order 13132 does not apply to this action
. In the spirit of Executive Order 13132, and consi stent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.
F. Executive Order 13175: Consultation and Coordination with Indian Triba l Governments This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000) . This proposed rule imposes no requirements on tribal governments. Thus, Executive Order 13175 does not apply to this rule. EPA specifically solicits additional comment on this proposed rule from tribal officials.
G. Executive Order 13045: Protection of Children fro m Environmental Health and Safety Risks***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 56 of 78 EPA interprets Executive Order 13045 (62 F.R. 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety ri s ks, such that the analysis required under section 5

- 501 of the Order has the potential to influence the regulation. This action is not subject to E xecutive O rder 13045 because it is based solely on technology performance
. H. Executive Order 13211 : Actions Concerning Regulations That Significantly Affect Energy Supply, Distri bution, or Use This action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to hav e a significant adverse effect on the supply, distribution, or use of energy. We have concluded that this action is not likely to have any adverse energy effects because no additional requirements are contained in this proposed rule that consume
energy.
I . National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104

- 113 (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory act ivities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g.,***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 57 of 78 materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. Th is proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low

- Income Populations Executive Order 12898 (5 9 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by ident ifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low

- income populations in the U.S. EPA has determined that this proposed rule will not have disproportionately hi gh and adverse human health or environmental effects on minority or low

- income populations because it increases the level of environmental protection for***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 58 of 78 all affected populations without having any disproportionately high and adverse human health or enviro nmental effects on any***E.O. 12866 Review

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– Do Not Cite, Quote, or Release During Review*** **National Emission Standards for Hazardous Air Pollutants :** 

**Mercury Emissions from Mercury Cell Chlor -**  **Alkali Plants Page 58 of 7**  **7**
population, including any minority or low

- income population. The nationwide standards would eliminate mercury emissions and thus decrease the amount of emissions to which all affected populations are exposed. **List of Subjects in 4 0 CFR Part 63**  Environmental protection, Air pollution control, Hazardous substances, Incorporation by reference, Reporting and recordkeeping requirements.

Dated:

Lisa P. Jackson , Administrator.***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 60 of 78

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 63

- [Amended] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401, et s eq . Subpart IIIII

- [Amended] 2 . Section 63.8184 is amended by revising paragraphs (a) and (c) to read as follows: **§ 63.8184 What parts of my plant does this subpart cover?**  (a) This subpart applies to two types of affected sources at a mercury cell chl or - alkali plant: the mercury cell chlor

alkali production facility, as defined in paragraph (a)(1) of this section and § 63.8266; and the mercury recovery facility, as defined in paragraph (a)(2) of this section and § 63.8266. (1) The mercury cell chlor

- alkali production facility affected source consist s of all cell rooms and ancillary operations used in the manufacture of product chlorine, product caustic, and by

- product hydrogen at a mercury cell chlor

- alkali plant. This subpart covers mercury emissio ns from by

- product hydrogen streams, end box ventilation system vents, and fugitive emission sources associated with cell rooms, hydrogen systems,***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 61 of 78 caustic systems, and storage areas for mercury

- containing
wastes. (2) The mercury recovery facility affected source consist s of all processes and associated operations needed for mercury
recovery of wastes generated from a mercury cell chlor

- alkali plant. This subpart covers mercury emissions from mercury thermal recovery unit vents and fugitive emission source s associated with storage areas for mercury

- containing wastes.
* * * * * (c) A mercury recovery facility is a new affected source if you commence construction or reconstruction of the affected source after the dates specified in § 63.8186( c ) and ( d )
. An affected source is reconstructed if it meets the definition of a reconstruction in § 63.2. 3 . Section 63.8186 is revised to read as follows: **§ 63.8186 When do I have to comply with this subpart?**  (a) Compliance date for the emission limitations in § 63.8190(a)(2), the work practices in § 63.8192, and all the associated requirements for existing mercury cell chlor

- alkali production facility and mercury recovery facility affected sources. If you have an existing mercury cell chlor

- alkali production fac ility or mercury recovery facility affected source, you must comply with the applicable emission limitations in § 63.8190(a)(2), work practices in § 63.8192, and all the***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 62 of 78 associated requirements no later than December 19, 2006. (b) Compliance date for emis sion limitation in § 63.8190(b) and all the associated requirements for existing mercury cell chlor

- alkali production facility and mercury recovery facility affected sources. If you have an existing mercury cell chlor

- alkali production facility or mercur y recovery facility affected source, you must comply with § 63.8190(b) by three years after the date that the final rule is published in the Federal Register . Prior to compliance with § 63.8190(b), you must comply with the applicable emission limitations in § 63.8190(a)(2), work practices in § 63.8192, and all the associated requirements. After you have demonstrated compliance with § 63.8190(b) and have submitted the certification of com pliance in accordance with § 63.8252(f), you

are only subject to § 63.8 246 ( d ) of this subpart. (c) Compliance date for the emission limitations in § 63.8190(a) ( 3), the work practices in § 63.8192, and all the associated requirements for new or reconstructed mercury recovery facility affected sources. If you commenced construction or reconstruction of your mercury recovery facility after July 3, 2002, and before **[INSERT DATE OF PUBLICATION OF**  **THIS PROPOSAL IN THE FEDERAL REGISTER]**  , you must comply with the applicable emission limitation in § 63.8190(a)(3), work practices in § 63.8192, and all the associated requirements by***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 63 of 78 either December 19, 2003, or upon initial startup, whichever is later
. (d) Compliance date for the emission limitation under § 63.8190(b) and all the associated requirements for new or reconstructed mercury recovery facility affected sources. (1) If you commenced construction or reconstruction of your mercury recovery fa cility after July 3, 2002, and before **[INSERT DATE OF PUBLICATION OF THIS PROPOSAL**  **IN THE FEDERAL REGISTER]**  , you must comply with the emission limitation in § 63.8190(b) and all the associated requirements by three years after the date that the final rule is published in the Federal Register . Prior to compliance with § 63.8190(b), you must comply with the applicable emission limitation in § 63.8190(a)(3), work practices in § 63.8192, and all the associated requirements. After you have demonstrated complia nce with § 63.8190(b) and have submitted the certification of compliance in accordance with § 63.8252(f), you are you are only subject to § 63.8 246 ( d ) of this subpart
. (2) If you commenced construction or reconstruction of your mercury recovery facility after **[INSERT DATE OF PUBLICATION**
**OF THIS PROPOSAL IN THE FEDERAL REGISTER]**  , you must comply with the emission limitation in § 63.8190(b) and all the associated requirem ents by the date that the final rule is published in the Federal Register **,** or upon initial startup, whichever is later.***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 64 of 78 4 . Section 63.8190 is amended as follows:

a . Revising paragraph (a)(2) introductory text; b . Revising paragraph (a)(3) introductory text; and

c . Add ing paragraph (b); The revisions read as follows: **§ 63.8190 What emission limitations must I meet?**  (a) * * * (2) Emission limits which apply to existing mercury cell chlor

- alkali production facilities prior to achieving compliance with § 63.8190(b). During any consecutive 52

- week period, you must not discharge to the atmosphere total mercury emissions in excess of the applicable limit in paragraph (a)(2)(i) or (ii) of this section calculated using the procedures in § 63.8243(a). * * * * * (3) Emission limits which apply to existing mercury recovery facilities and to new or reconstructed mercury recovery facilities that commenced construction or reconstruction after July 3, 2002, and before **[INSERT DATE OF PUBLICATION**  **OF THIS**  **PROPOSAL IN THE FEDERAL REGISTER]**  prior to achieving compliance with paragraph (b) of this section . You must not discharge to the atmosphere mercury emissions in excess of the applicable limit in paragraph (a)(3)(i) or (ii) of this section. * * * * * (b) Emission limit which applies to each mercury cell***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 65 of 78 ch lor

- alkali production facility and each mercury recovery facility after the applicable compliance date specified in paragraph § 63.8186(b) or (d)
. Emissions of mercury are prohibited from each existing mercury cell chlor

- alkali production facility and from each existing, new, or reconstructed mercury recovery facility. You must demonstrate compliance with this prohibition in accordance with the
pr ovisions in § 63.8236(e) and § 63.8246(d) and submit the certification of compliance required by § 63.8252(f). 5 . Section 63.8192 is amended as follows: a. Revising the introductory text; b. Revising paragraph (g)(2)(i); and c. Revising paragraph (g) (3). The revisions read as follows: **§ 6**  **3.8192 What work practice standards must I meet?** Prior to achieving compliance with § 63.8190(b), you must meet the work practice requirements specified in paragraphs (a) through (f) of this section. As an alternative to the requirements specified in paragraphs (a) through (d) of this section, you may choose to comply with paragraph (g) of this section.
* * * * * (g) * * * (2) * * ****E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 66 of 78 (i) Beginning on the compliance date specified for your affected source in § 63.8186(a) , measure and record the mercury concentration for at least 30 days using a system that meets the requirements of paragraph (g)(1) of this section. * * * * * (3) Beginning on the compliance date specified for your affected source in § 63.8186(a) , you must continuously monitor the mercury concentration in the cell room. Failure to monitor and record the data according to § 63.8256(c)(4)(ii) for 75 percent of the time in any 6

- month period constitutes a deviation. * * * * * 6
. Section 63.8226 is revised to read as follows: **§ 63.8226 What are my general requirements for complying with**  **this subpart?** (a) You must be in compliance with the applicable emission limitations in § 63.8190 at all times. Prior to achieving compliance with § 63.8 190 ( b ) , y ou must be in compliance with the applicable work practice standards in § 63.8192 at all times. (b) At all times you must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. The genera l duty to minimize emissions does not***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 67 of 78 require you to make any further efforts to reduce emissions if levels required by this standard have been achieved. Determination of whether such operation and maintenance procedures are being used will be based on inf ormation available to the Administrator which may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records, and inspection of the source.
7 . Section 63.8230 is revis ed to read as follows: **§ 63.8230 By what date must I conduct performance tests or**  **other initial compliance demonstrations?** (a) You must conduct a performance test no later than the compliance date that is specified in § 63.8186(a) for your affected source to demonstrate initial compliance with the applicable emission limit in § 63.8190(a)(2) for by

- product hydrogen streams and end box ventilation system vents and the applicable emission limit in § 63.8190(a)(3) for mercury thermal recovery unit vents. (b) For the applicable work practice standards in § 63.8192 you must demonstrate initial compliance within 30 calendar days after the compliance date that is specified for your affected source in § 63.8186(a)
. 8 . Section 63.8232 is amended by re moving and reserving paragraph (a) to read as follows:***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 68 of 78 **§ 63.8232**  **[Amended]** (a) [ Reserved. ] 9 . Section 63.8236 is amended by adding paragraph (e) to read as follows: **§ 63.8236 How do I demonstrate initial compliance with the**  **emission limit ations and work practice standards?** 
* * * * * (e) For each affected source, you have demonstrated initial compliance with the emission limit in § 63.8190(b) if you have eliminated mercury emissions and you have submitted the compliance certification required by § 63.8252(f). 1 0 . Section 63.8242 is amended by revising paragraph (a)(2) to read as follows: **§ 63.8242 What are the installation, operat**  **ion, and maintenance requirements for my continuous monitoring systems?**  (a) * * * (2) Each mercury continuous emissions monitor analyzer must have a detector with the capability to detect a mercury concentration of either 0.5 times the mercury concentr ation level measured during the performance test conducted according
to § 63.8232 or 0.1 μg/m 3

. * * * * * 1 1 . Section 63.8243 is amended by revising paragraph s (a) introductory text and (a)(3) introductory text to read as***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 69 of 78 follows: **§ 63.8243 What equa**  **tions and procedures must I use to demonstrate continuous compliance?**  (a) By

- product hydrogen streams and end box ventilation system vents . For each consecutive 52

- week period, you must determine the g Hg/Mg Cl 2 produced from all by

- product hydrogen
stre ams and all end box ventilation system vents, if applicable, at a mercury cell chlor

- alkali production facility using the procedures in paragraphs (a)(1) through (3) of this section. You must begin collecting data on the compliance date that is specified in § 63.8186(a) for your affected source and calculate your first 52

- week average mercury emission rate at the end of the 52nd week after the compliance date. * * * * * (3) Beginning 52 weeks after the compliance date specified in § 63.8186(a) for your affected source , you must calculate the 52

- week average mercury emission rate from all by

- product hydrogen steam and all end box ventilation system vents, if applicable, using Equation 1 of this section as follows:
* * * * * 1 2 . Section 63.8246 is amended by revising paragraph (b)(1) introductory text , and adding paragraph (d) to read as follows: **§ 63.8246 How do I demonstrate continuous compliance with the** ***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 70 of 78 **emission limitations and work practice standards?**
* * * * * (b) * * * (1) For each mercury thermal recovery unit vent, you must demonstrate continuous compliance with the applicable emission limit specified in § 63.8190(a)(3) by maintaining the outlet mercury daily

- average concentration no higher than the applicable limit. To determine the outlet mercury concentration, you must monitor according to paragraphs (b)(1)(i) or (ii) of this section. * * * * * (d) You must demonstrate continuous compliance with the emission limitations in § 63.8190(b) by operating with zero mercury emissions. 1 3 . Section 63.8248 is amended as follows: a. Revising paragraph (a)(1); b. Revising paragraph (a)(2); and

c . Re moving and reserv ing paragraph (b). The revisions read as follows: **§ 63.8248 What other requirements must I meet?**  (a) * * * (1) You must report each instance in which you did not meet each emission limitation in § 63.8190 that applies to you. (2) You must report each instance in which you did not meet each work practice standard in § 63.8192 that applies to you***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 71 of 78 * * * * * (b) [ Reserved. ] 1 4 . Section 63.8252 is amended by adding paragraph (f) to read as follows: **§ 63.8252 What notifications must I submit and when?** 
* * * * * (f) You must submit a compliance certification no later than 60 days after the a pplicable compliance date specified in § 63.8186(b) or (d). This certification must state that you have eliminated all mercury emissions and will not use any process in the future that will emit mercury. The certification should also include a statement as to whether you eliminated mercury emissions through conver sion to a non mercury process for chlorine production or whether chlorine is no longer produced a t the site. 1 5 . Section 63.8254 is amended as follows: a. Revising paragraph (a)(1); b. Rev ising paragraph (a)(2);

c . Re moving and reserving paragraph (b)(4); d . Revising paragraph (b)(7) introductory text;

e . Revising paragraph (b)(8) introductory text; f . Revising paragraph (b)(8)(iv);
g . Revising paragraph (b)(8)(vi); h . Revising paragr aph (b)(9) introductory text;***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 72 of 78 i . Revising paragraph (b)(9)(ii); j . Revising paragraph (b)(9)(v i ); and k. Re moving and reserving paragraph (c). The revisions read as follows: **§ 63.8254 What reports must I submit and when?**  (a) * * * (1) The first compliance report must cover the period beginning on December 19, 2006, and ending on June 30, 2007. (2) The first compliance report must be postmarked or delivered no later than July 31 , 2007
. * * * * * (b) * * * (4) [ Reserved. ] * * * * * (7) For each deviation from the requirements for work practice standards in Tables 1 through 4 to this subpart that occurs at an affected source (including deviations where the response intervals were not adhered to as described in § 63.81 92(b)), the compliance report must contain the information in paragraphs (b)(1) through (4) of this section and the information in paragraphs (b)(7)(i) and (ii) of this section
. * * * * * (8) For each deviation from an emission limitation***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 73 of 78 occurring at an affected source where you are using a mercury continuous emission monitor, according to the site

- specific monitoring plan required in § 63.8242(a)(3), to comply with the emission limitation in this subpart, you must include the information in paragraphs (b)(1) through (4) of this section and the information in paragraphs (b)(8)(i) through (xii) of this section
. * * * * * (iv) The date and time that each deviation started and stopped. * * * * * (vi) A breakdown of the total duration of the deviations during the reporting period including those that are due to control equipment problems, process problems, other known causes, and other unknown causes. * * * * * (9) For each deviation from an operation and maintenance standard occurri ng at an affected source where you are using the periodic monitoring option specified in § 63.8240(b) and your final control device is not a nonregenerable carbon adsorber, the compliance report must include the information in paragraphs (b)(1) through (4) of this section and the information in paragraphs (b)(9)(i) through (x) of this section
. * * * * ****E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 74 of 78 (ii) Information on the number, duration, and cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken. * * * * * (vi) A breakdown of the total duration of the deviations during the reporting period including those that are due to process problems, other known causes, and other unknown causes. * * * * * (c) [ Reserved. ] * * * * * 1 6 . Se ctio n 63.8256 is amended by removing and reserving paragraph (a)(2) to read as follows: **§ 63.8256 What records must I keep?**  (a) * * * (2) [ Reserved. ] * * * * * 1 7 . Section 63.8266 is amended b y revising the definition s of “Deviation;” and “M ercury cell chlor

- alkali plant” to read as follows: **§ 63.8266 What definitions apply to this subpart?** 
* * * * * Deviation means any instance in which an affected source subject to this subpart, or an owner or operator of such a
source:***E.O. 12866 Review

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– Do N ot Cite, Quote, or Release During Review*** Page 75 of 78 (1) Fails to m eet any requirement or obligation established by this subpart including, but not limited to, any emission limitation (including any operating limit) or work practice standard; (2) Fails to meet any term or condition that is adopted to implement an applica ble requirement in this subpart and that is included in the title V operating permit for any affected source required to obtain such a permit; or (3) Fails to take corrective actions within 48 hours that result in parameter monitoring values being within range. * * * * * Mercury cell chlor

- alkali plant means all contiguous or adjoining property that is under common control, where a mercury cell chlor

- alkali production facility and/or a mercury recovery facility is located
. A property where only a merc ury recovery facility is operating is considered a mercury cell chlor

- alkali plant if a mercury cell chlor

- alkali production facility ha d operated on th at property at any time in the past
. * * * * * 18. Table 10 to Subpart IIIII of Part 63 is revised t o read as follows: **TABLE 10 TO SUBPART IIIII OF PART 63 --**  **APPLICABILITY OF GENERAL PROVISIONS TO SUBPART IIIII**  As stated in § 63.8262, you must comply with the applicable General Provisions requirements according to the following table:***E.O. 12866 Review

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**Citation Subject**  **Applies to**  **Subpart IIIII**  **Explanation**

§ 63.1 Applicability Yes § 63.2 Definitions Yes § 63.3 Units and Abbreviations Yes § 63.4 Prohibited Activities Yes § 63.5 Construction/ Reconstruction Yes

§ 63.6(a)

- (g), (i), (j), except for (e)(1)(i) and (ii), (e)(3), and (f)(1) Compliance with Standards and Maintenance Requirements Yes

§ 63.6(e)(1)(i) and (ii), (e)(3), and (f)(1) SSM Requirements No

§ 63.6(h) Compliance with Opacity and Visible Emission Standards No Subpart IIIII does not have opacity and visible emission standards.
§ 63.7(a)(1), (b)

- (h) , except (e)(1) Performance Testing Requirements Yes Subpart IIIII specifies additional requirements related to site

specific test plans and the conduct of performance tests. § 63.7( e )(1) Performance Testing Requirements Related to SSM No***E.O. 12866 Review

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§ 63.7(a)(2) Applicability and Performance Test Dates No Subpart IIIII requires the performance test to be performed on the compliance date.
§ 63.8(a)(1), (a)(3); (b); (c)(1)

- (4), (6)

- (8); (d); (e); and (f)(1)

- (5) Monitoring Requirements Yes

§ 63.8(a)(2) Continuous Monitoring System (CMS) Requirements No Subpart IIIII requires a site

specific monitoring plan in lieu of a promulgated performance specification for a mercury concentration CMS. § 63.8(a)(4) Additional Monitoring Requirements for Control Devices in ' 63.11 No Subpart IIIII does not requir e flares.
§ 63.8(c)(5) COMS Minimum Procedures No Subpart IIIII does not have opacity and visible emission standards.
§ 63.8(f)(6) Alternative to Relative Accuracy Test No Subpart IIIII does not require CEMS. § 63.8(g) Data Reduction No Subpart IIIII specifies mercury concentration CMS data reduction requirements.
§ 63.9(a)

- (e), Notification Yes***E.O. 12866 Review

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- (j) Requirements
§ 63.9(f) Notification of VE/Opacity Test No Subpart IIIII does not have opacity and visible emission standards.
§ 63.10(a); (b)(1); (b)(2)( v i)

- (xii), (xiv); (b)(3); (c); (d)(1)

- (2), (4); (e); (f) Recordkeeping/Reporting Yes

§ 6 3.10(b)(2) (i)

- (v) , (d)(5) Recordkeeping/ Reporting Associated with Startup, Shutdown, and Malfunctions No

§ 63.10(b)(2) (xiii) CMS Records for RATA Alternative No Subpart IIIII does not require CEMS. § 63.10(d)(3) Reporting Opacity or VE Observations No Subpart IIIII does not have opacity and visible emission standards.
§ 63.11 Flares No Subpart IIIII does not require flares.
§ 63.12 Delegation Yes § 63.13 Addresses Yes § 63.14 Incorporation by Reference Yes § 63.15 Availability of Information Yes