Federal Register / Vol. 77, No. 157 / Tuesday, August 14, 2012 / Rules and Regulations 48433 

(b) Regulated Area. All waters on the 

Pamlico and Tar Rivers within a 300 

yard radius of the launch site on land 

at position latitude 35°32′25′′ N, 

longitude 077°03′42′′ W. All geographic 

coordinates are North American Datum 

1983 (NAD 83). 

(c) Regulations. The general safety 

zone regulations contained in 33 CFR 

165.23 of this part apply to the area 

described in paragraph (b) of this 

section. 

(1) Persons or vessels requiring entry 

into or passage through any portion of 

the safety zone must first request 

authorization from the Captain of the 

Port, or a designated representative, 

unless the Captain of the Port 

previously announced via Marine Safety 

Radio Broadcast on VHF Marine Band 

Radio channel 22 (157.1 MHz) that this 

regulation will not be enforced in that 

portion of the safety zone. The Captain 

of the Port can be contacted at telephone 

number (910) 343–3882 or by radio on 

VHF Marine Band Radio, channels 13 

and 16. 

(d) Enforcement. The U.S. Coast 

Guard may be assisted in the patrol and 

enforcement of the zone by Federal, 

State, and local agencies. 

(e) Enforcement period. This section 

will be enforced from 8 p.m. to 10 p.m. 

on September 22, 2012 unless cancelled 

earlier by the Captain of the Port. 

Dated: July 30, 2012. 

A. Popiel, 

Captain, U.S. Coast Guard, Captain of the 

Port North Carolina. 

[FR Doc. 2012–19841 Filed 8–13–12; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[EPA–HQ–OAR–2010–0750; FRL–9667–3] 

RIN 2060–AQ10 

New Source Performance Standards 

Review for Nitric Acid Plants 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is finalizing the new 

source performance standards (NSPS) 

for nitric acid plants. Nitric acid plants 

include one or more nitric acid 

production units (NAPUs). These 

revisions include a change to the 

nitrogen oxides (NOX) emission limit, 

which applies to each NAPU 

commencing construction, modification, 

or reconstruction after October 14, 2011. 

These revisions also include additional 

testing and monitoring requirements. 

DATES: This final rule is effective on 

August 14, 2012. The incorporation by 

reference of certain publications listed 

in this rule is approved by the Director 

of the Federal Register as of August 14, 

2012. 

ADDRESSES: Docket: The docket for this 

action is identified by Docket ID No. 

EPA–HQ–OAR–2010–0750. 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, 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 EPA Docket Center, Public Reading 

Room, 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: For 

questions about these standards for 

nitric acid plants, contact Mr. Nathan 

Topham, Sector Policies and Program 

Division, Office of Air Quality Planning 

and Standards (D243–02), 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711, telephone number (919) 541– 

0483; fax number (919) 541–3207, email 

address: topham.nathan@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information presented in this preamble 

is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this 

document? 

C. Judicial Review 

II. Background Information 

A. What is the statutory authority for this 

final NSPS? 

B. History of the NSPS for Nitric Acid 

Plants 

III. Summary of the Final NSPS 

A. What source category is being regulated? 

B. What pollutants are emitted from these 

sources? 

C. What are the final requirements for new 

nitric acid production units? 

IV. Summary of Significant Changes Since 

Proposal 

A. How is the EPA revising the proposed 

emissions limit for affected facilities? 

B. How is the EPA revising the testing and 

monitoring requirements that were 

proposed for Subpart Ga of Part 60? 

C. How is the EPA revising the notification, 

reporting, and recordkeeping 

requirements that were proposed for 

Subpart Ga? 

V. Summary of Significant Comments and 

Responses to the Proposed NSPS 

VI. Summary of Cost, Environmental, Energy, 

and Economic Impacts of These 

Standards 

A. What are the impacts for Nitric Acid 

Production Units? 

B. What are the secondary impacts for 

Nitric Acid Production Units? 

C. What are the economic impacts for 

Nitric Acid Production Units? 

VII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act as Amended 

by the Small Business Regulatory 

Enforcement Fairness Act (RFA) of 1996 

(SBREFA), 5 U.S.C. 601 et seq. 

D. Unfunded Mandates Reform Act of 1995 

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 

K. Congressional Review Act 

I. General Information 

A. Does this action apply to me? 

Categories and entities potentially 

regulated by these revisions include: 

Category NAICS code 1 Examples of regulated entities 

Industry ................................................................................................................ 325311 Nitrogenous Fertilizer Manufacturing. 

Federal government ............................................................................................ ........................ Not affected. 

State/local/tribal government ............................................................................... ........................ Not affected. 

1 North American Industrial Classification System. 


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48434 Federal Register / Vol. 77, No. 157 / Tuesday, August 14, 2012 / Rules and Regulations 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. To determine 

whether your facility would be 

regulated by this action, you should 

examine the applicability criteria in 40 

CFR 60.70a. If you have any questions 

regarding the applicability of this final 

action to a particular entity, contact the 

person in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. Where can I get a copy of this 

document? 

In addition to being available in the 

docket, an electronic copy of the final 

action is available on the Worldwide 

Web (WWW) through the Technology 

Transfer Network (TTN) Web site. 

Following signature, EPA posted a copy 

of the final action on the TTN Web site’s 

policy and guidance page for newly 

proposed or promulgated rules at 

www.epa.gov/ttn/oarpg. The TTN Web 

site provides information and 

technology exchange in various areas of 

air pollution control. 

C. Judicial Review 

Under CAA section 307(b)(1), judicial 

review of this final rule is available only 

by filing a petition for review in the U.S. 

Court of Appeals for the District of 

Columbia Circuit by October 15, 2012. 

Under CAA section 307(d)(7)(B), only 

an objection to this final rule that was 

raised with reasonable specificity 

during the period for public comment 

(including any public hearing) can be 

raised during judicial review. This 

section also provides a mechanism for 

the EPA to convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to the 

Administrator that it was impracticable 

to raise such objection within [the 

period for public comment] or if the 

grounds for such objection arose after 

the period for public comment (but 

within the time specified for judicial 

review) and if such objection is of 

central relevance to the outcome of the 

rule[.]’’ Any person seeking to make 

such a demonstration to us should 

submit a Petition for Reconsideration to 

the Office of the Administrator, 

Environmental Protection Agency, 

Room 3000, Ariel Rios Building, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20004, with a copy to the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section, and the 

Associate General Counsel for the Air 

and Radiation Law Office, Office of 

General Counsel (Mail Code 2344A), 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20004. Note, under CAA section 

307(b)(2), the requirements established 

by this final rule may not be challenged 

separately in any civil or criminal 

proceedings brought by EPA to enforce 

these requirements. 

II. Background Information 

A. What is the statutory authority for 

this final NSPS? 

New source performance standards 

(NSPS) implement Clean Air Act (CAA) 

section 111(b), and are issued for 

categories of sources which cause, or 

contribute significantly to, air pollution 

which may reasonably be anticipated to 

endanger public health or welfare. 

Section 111 of the CAA requires that 

NSPS reflect the application of the best 

system of emission reductions which 

(taking into consideration the cost of 

achieving such emission reductions, any 

nonair quality health and environmental 

impact and energy requirements) the 

Administrator determines has been 

adequately demonstrated. 

This level of control has sometimes 

been referred to as ‘‘best demonstrated 

technology’’ or BDT. In order to better 

reflect that, CAA section 111 was 

amended in 1990 to clarify that ‘‘best 

systems’’ may or may not be 

‘‘technology,’’ the EPA is now using the 

term ‘‘best system of emission 

reduction’’ or BSER. In assessing 

whether a standard is achievable, EPA 

must account for routine operating 

variability associated with performance 

of the system on whose performance the 

standard is based. See National Lime 

Ass’n v. EPA, 627 F. 2d 416, 431–33 (DC 

Cir. 1980). 

Common sources of information as to 

what constitutes a BSER, and for 

assessing that technology’s level of 

performance, include test data collected 

during development of proposed rules, 

best available control technology 

(BACT) determinations made as part of 

new source review (NSR), emissions 

limits that exist in state and federal 

permits for recently permitted sources, 

and emissions test data for 

demonstrated control technologies 

collected for compliance demonstration 

or other purposes. EPA compares permit 

limitations and BACT determination 

data with actual performance test data 

to identify any site-specific factors that 

could influence general applicability of 

this information. Also, as part of this 

review we evaluate if NOX emissions 

limits more stringent than those in 

Subpart G have been established, or if 

emissions limits have been developed 

for additional air pollutants. 

New source performance standards 

implement CAA section 111(b), and are 

issued for categories of sources which 

cause, or contribute significantly to, air 

pollution which may reasonably be 

anticipated to endanger public health or 

welfare. The primary purpose of the 

NSPS is to attain and maintain ambient 

air quality by ensuring that the best 

demonstrated emission control 

technologies are installed as the 

industrial infrastructure is modernized, 

when it is most cost effective to build 

in controls. Since 1970, the NSPS have 

been successful in achieving long-term 

emissions reductions in numerous 

industries by assuring that cost-effective 

controls are installed on new, 

reconstructed, or modified sources. 

Section 111(b)(1)(B) of the CAA requires 

EPA to periodically review and revise 

the standards of performance, as 

necessary, to reflect improvements in 

methods for reducing emissions. 

Existing affected NAPUs that are 

modified or reconstructed would also be 

subject to these revisions for affected 

facilities. Under CAA section 111(a)(4), 

‘‘modification’’ means any physical 

change in, or change in the method of 

operation of, a stationary source which 

increases the amount of any air 

pollutant emitted by such source or 

which results in the emission of any air 

pollutant not previously emitted. 

Changes to an existing NAPU that do 

not result in an increase in emissions 

are not considered modifications. 

Rebuilt affected NAPUs would 

become subject to the standards under 

the reconstruction provisions, regardless 

of changes in emission rate. 

Reconstruction means the replacement 

of components of an existing NAPU 

such that (1) the fixed capital cost of the 

new components exceeds 50 percent of 

the fixed capital cost that would be 

required to construct a comparable 

entirely new NAPU; and (2) it is 

technologically and economically 

feasible to meet the applicable standards 

(40 CFR 60.15). 

B. History of the NSPS for Nitric Acid 

Plants 

The NSPS for Nitric Acid Plants (40 

CFR part 60, Subpart G) were 

promulgated in the Federal Register on 

December 23, 1971 (36 FR 24881). The 

first review of the Nitric Acid Plants 

NSPS was completed on June 19, 1979 

(44 FR 35265). An additional review 

was completed on April 5, 1984 (49 FR 

13654). No changes were made to the 

NSPS as a result of those reviews. Minor 

testing and monitoring changes were 

made during three reviews since the 

original promulgation in 1971 (October 

6, 1975 (40 FR 46258), April 22, 1985 

(50 FR 15894), and February 14, 1989 

(54 FR 6666)). Subpart G applies to each 

NAPU constructed or modified after 


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August 17, 1971, and on or before 

October 14, 2011. Subpart G has an 

emissions limit of 3.0 lb of NOX per ton 

of 100 percent nitric acid produced 

(based on any 3-hour average) and a 10 

percent opacity standard as an 

additional method of demonstrating 

compliance with the NOX emission 

limit. Continuous NOX monitors are 

required as well as recording daily 

production rates. 

III. Summary of the Final NSPS 

A. What source category is being 

regulated? 

Today’s standards (Subpart Ga) apply 

to new NAPUs. The affected facility 

under the final NSPS is each NAPU. 

Nitric acid plants may include one or 

more NAPUs. A new NAPU is defined 

as a NAPU for which construction, 

modification, or reconstruction 

commences after October 14, 2011. 

For purposes of these final 

regulations, a NAPU is defined as any 

facility producing weak nitric acid by 

either the pressure or atmospheric 

pressure process. This definition has not 

changed from Subpart G. 

B. What pollutants are emitted from 

these sources? 

The pollutant to be regulated under 

section 111(b) in today’s action, for new 

NAPUs, is NOX, which undergoes 

reactions in the atmosphere to form 

particulate matter and ozone. Nitrogen 

oxides, particulate matter, and ozone are 

all criteria pollutants that are subject to 

national ambient air quality standards 

under section 109 of the Clean Air Act, 

based on their adverse effects to human 

health and welfare. 

These NAPUs also emit another 

nitrogen compound known as nitrous 

oxide (N2O), which is considered a 

greenhouse gas (GHG). We are not 

taking final agency action with respect 

to a GHG emission standard in this 

action. The EPA is in the process of 

gathering and analyzing additional data 

on GHG emissions from NAPUs that 

will allow the Agency to continue 

working towards a proposal for GHG 

standards for nitric acid plants. 

C. What are the final requirements for 

new nitric acid production units? 

As proposed, and after consideration 

of the comments we received, we are 

reducing the NOX emissions limit from 

3.0 pounds of NOX (expressed as NO2) 

per ton of 100 percent nitric acid 

produced (lb NOX/ton acid) to 0.50 lb 

NOX/ton acid as a 30 operating day 

emission rate calculated each operating 

day based on the previous 30 operating 

days. 

The general provisions in 40 CFR part 

60 provide that emissions in excess of 

the level of the applicable emissions 

limit during periods of startup, 

shutdown, and malfunction shall not be 

considered a violation of the applicable 

emission limit unless otherwise 

specified in the applicable standard. See 

40 CFR 60.8(c). The general provisions, 

however, may be amended for 

individual subparts. See 40 CFR 60.8(h). 

In today’s action, the EPA is finalizing 

standards in Subpart Ga that apply at all 

times, including periods of startup or 

shutdown, and periods of malfunction. 

Periods of Startup or Shutdown. 

Consistent with Sierra Club v. EPA (551 

F.3d 1019 (DC Cir. 2008)), the EPA has 

established standards in this rule that 

apply at all times. In revising the 

standards in this rule, the EPA has taken 

into account startup and shutdown 

periods and, for the reasons explained 

below, has not established different 

standards for those periods. 

According to information received 

from industry in the section 114 ICR, 

NOX emissions during startup and 

shutdown are higher than during 

normal operations for some nitric acid 

plants. However, due to the relatively 

short duration of startup and shutdown 

events (generally a few hours per 

month) compared to normal steady-state 

operations, we conclude that a 30-day 

emission rate calculated based on 30 

operating days will allow affected 

facilities to meet the 0.50 lb NOX/ton 

acid at all times, including periods of 

startup and shutdown. 

If higher NOX emissions during 

periods of startup and shutdown are a 

concern, there are two types of 

equipment that can be used by affected 

facilities. These include startup heaters 

and hydrogen peroxide injection. 

Startup heaters are used to heat the SCR 

so that it can begin to reduce NOX

during startups. Hydrogen peroxide 

injection, which is not applicable in all 

situations, can also be used to decrease 

NOX emissions in the extended 

absorption column. 

Periods of Malfunction. As explained 

in the preamble to the proposed rule, 

periods of startup, normal operations, 

and shutdown are all predictable and 

routine aspects of a source’s operations. 

However, by contrast, malfunction is 

defined as a ‘‘sudden, infrequent, and 

not reasonably preventable failure of air 

pollution control equipment, process 

equipment or a process to operate in a 

normal or usual manner * * *’’ (40 CFR 

60.2). As explained in more detail in the 

proposed rule, EPA has determined that 

CAA section 111 does not require that 

emissions that occur during periods of 

malfunction be factored into 

development of CAA section 111 

standards. 

Further, accounting for malfunctions 

would be difficult, if not impossible, 

given the myriad different types of 

malfunctions that can occur across all 

sources in the category and given the 

difficulties associated with predicting or 

accounting for the frequency, degree, 

and duration of various malfunctions 

that might occur. As such, the 

performance of units that are 

malfunctioning is not ‘‘reasonably’’ 

foreseeable. See, e.g., Sierra Club v. 

EPA, 167 F. 3d 658, 662 (DC Cir. 1999) 

(‘‘[T]he EPA typically has wide latitude 

in determining the extent of datagathering necessary to solve a problem. 

We generally defer to an agency’s 

decision to proceed on the basis of 

imperfect scientific information, rather 

than to ‘invest the resources to conduct 

the perfect study.’ ’’). See also, 

Weyerhaeuser v. Costle, 590 F.2d 1011, 

1058 (DC Cir. 1978) (‘‘In the nature of 

things, no general limit, individual 

permit, or even any upset provision can 

anticipate all upset situations. After a 

certain point, the transgression of 

regulatory limits caused by 

‘uncontrollable acts of third parties,’ 

such as strikes, sabotage, operator 

intoxication or insanity, and a variety of 

other eventualities, must be a matter for 

the administrative exercise of case-bycase enforcement discretion, not for 

specification in advance by 

regulation.’’). In addition, accounting for 

malfunctions when setting standards of 

performance under section 111 which 

reflect the degree of emission limitation 

achievable through ‘‘the application of 

the best system of emission reduction’’ 

that the EPA determines is adequately 

demonstrated could lead to standards 

that are significantly less stringent than 

levels that are achieved by a wellperforming non-malfunctioning source. 

The EPA’s approach to malfunctions is 

consistent with section 111 and is a 

reasonable interpretation of the statute. 

In the event that a source fails to 

comply with the applicable CAA section 

111 standards as a result of a 

malfunction event, the 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 corrective 

actions, as well as root cause analyses 

to ascertain and rectify violations. The 

EPA would also consider whether the 

source’s failure to comply with the CAA 

section 111 standard was, in fact, 

‘‘sudden, infrequent, not reasonably 

preventable’’ and was not instead 

‘‘caused in part by poor maintenance or 


tkelley on DSK3SPTVN1PROD with RULES
48436 Federal Register / Vol. 77, No. 157 / Tuesday, August 14, 2012 / Rules and Regulations 

careless operation.’’ 40 CFR 60.2 

(definition of malfunction). 

Finally, the EPA recognizes that even 

equipment that is properly designed and 

maintained can sometimes fail and that 

such failure can sometimes cause a 

violation of the relevant emission 

standard. The EPA is therefore 

finalizing an affirmative defense to civil 

penalties for violations of emission 

standards that are caused by 

malfunctions. See 40 CFR 60.71a 

(defining ‘‘affirmative defense’’ to mean, 

in the context of an enforcement 

proceeding, a response or defense put 

forward by a defendant, regarding 

which the defendant has the burden of 

proof, and the merits of which are 

independently and objectively 

evaluated in a judicial or administrative 

proceeding.). We also have finalized 

other regulatory provisions to specify 

the elements that are necessary to 

establish this affirmative defense; the 

source must prove by a preponderance 

of the evidence that it has met all of the 

elements set forth in 60.74a. (See 40 

CFR 22.24). The criteria ensure that the 

affirmative defense is available only 

where the event that causes a violation 

of the emission standard meets the 

narrow definition of malfunction in 40 

CFR 60.2 (sudden, infrequent, not 

reasonable preventable and not caused 

by poor maintenance and or careless 

operation). For example, to successfully 

assert the affirmative defense, the source 

must prove by a preponderance of the 

evidence that the violation ‘‘[w]as 

caused by a sudden, infrequent, and 

unavoidable failure of air pollution 

control equipment, process equipment, 

or a process to operate in a normal or 

usual manner * * *.’’ The criteria also 

are designed to ensure that steps are 

taken to correct the malfunction, to 

minimize emissions in accordance with 

section 60.72a(b) and to prevent future 

malfunctions. For example, the source 

must prove by a preponderance of the 

evidence that ‘‘[r]epairs were made as 

expeditiously as possible when a 

violation occurred * * * ’’ and that 

‘‘[a]ll possible steps were taken to 

minimize the impact of the violation on 

ambient air quality, the environment 

and human health * * *.’’ In any 

judicial or administrative proceeding, 

the Administrator may challenge the 

assertion of the affirmative defense and, 

if the respondent has not met its burden 

of proving all of the requirements in the 

affirmative defense, appropriate 

penalties may be assessed in accordance 

with Section 113 of the Clean Air Act 

(see also 40 CFR 22.27). 

The EPA proposed and is now 

finalizing an affirmative defense in this 

rule in an attempt to balance a tension, 

inherent in many types of air 

regulations, to ensure adequate 

compliance while simultaneously 

recognizing that despite the most 

diligent of efforts, emission standards 

may be violated under circumstances 

beyond the control of the source. The 

EPA must establish emission standards 

that ‘‘limit the quantity, rate, or 

concentration of emissions of air 

pollutants on a continuous basis.’’ 42 

U.S.C. § 7602(k) (defining ‘‘emission 

limitation and emission standard’’). See 

generally Sierra Club v. EPA, 551 F.3d 

1019, 1021 (D.C. Cir. 2008). Thus, the 

EPA is required to ensure that Section 

111 emissions standards are continuous. 

The affirmative defense for malfunction 

events meets this requirement by 

ensuring that even where there is a 

malfunction, the emission standard is 

still enforceable through injunctive 

relief. While ‘‘continuous’’ standards, 

on the one hand, are required, there is 

also caselaw indicating that in many 

situations it is appropriate for the EPA 

to account for the practical realities of 

technology. For example, in Essex 

Chemical v. Ruckelshaus, 486 F.2d 427, 

433 (D.C. Cir. 1973), the D.C. Circuit 

acknowledged that in setting standards 

under CAA section 111 ‘‘variant 

provisions’’ such as provisions allowing 

for upsets during startup, shutdown and 

equipment malfunction ‘‘appear 

necessary to preserve the reasonableness 

of the standards as a whole and that the 

record does not support the ‘never to be 

exceeded’ standard currently in force.’’ 

See also, Portland Cement Association 

v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 

1973). Though intervening caselaw such 

as Sierra Club v. EPA and the CAA 1977 

amendments calls into question the 

relevance of these cases today, they 

support the EPA’s view that a system 

that incorporates some level of 

flexibility is reasonable. The affirmative 

defense simply provides for a defense to 

civil penalties for violations that are 

proven to be beyond the control of the 

source. By incorporating an affirmative 

defense, the EPA has formalized its 

approach to upset events. In a Clean 

Water Act setting, the Ninth Circuit 

required this type of formalized 

approach when regulating ‘‘upsets 

beyond the control of the permit 

holder.’’ Marathon Oil Co. v. EPA, 564 

F.2d 1253, 1272–73 (9th Cir. 1977). See 

also, Mont. Sulphur & Chem. Co. v. 

United States EPA, 2012 U.S. App. 

LEXIS 1056 (Jan 19, 2012) (rejecting 

industry argument that reliance on the 

affirmative defense was not adequate). 

But see, Weyerhaeuser Co. v. Costle, 590 

F.2d 1011, 1057–58 (D.C. Cir. 1978) 

(holding that an informal approach is 

adequate). The affirmative defense 

provisions give the EPA the flexibility to 

both ensure that its emission standards 

are ‘‘continuous’’ as required by 42 

U.S.C. 7602(k), and account for 

unplanned upsets and thus support the 

reasonableness of the standard as a 

whole. 

IV. Summary of Significant Changes 

Since Proposal 

A. How is the EPA revising the proposed 

emissions limit for affected facilities? 

For affected facilities constructed, 

modified, or reconstructed after October 

14, 2011, we proposed to reduce the 

NOX emissions limit from 3.0 lb NOX/ 

ton acid to 0.50 lb NOX/ton acid as a 30- 

day emission rate calculated each 

operating day based on the previous 30 

consecutive operating days. See 76 FR 

63878 (October 14, 2011). For these final 

standards, we are promulgating the 

proposed NOX emissions limit of 0.50 lb 

NOX/ton acid as a 30 operating day 

emission rate calculated each operating 

day based on the previous 30 operating 

days. In response to commenters’ 

concerns related to how the 30 day 

emission rate is calculated, we have 

revised the equation used to calculate 

the 30 day emission rate. This revision 

prevents days with very few operating 

hours from having an artificially large 

influence on the calculated 30 day 

emission rate. See Section V of this 

preamble, Statistical Evaluation of 

CEMS Data to Determine the NOX

Emission Standard (Updated Memo for 

Final Standard), and the Response to 

Comment Document for more 

information on calculation of the 30 day 

emission rates. The two documents 

mentioned above are available in the 

docket for this final rule. 

The conclusion that selective catalytic 

reduction (SCR) is BSER has not 

changed from proposal. The justification 

includes the following reasons: (1) 

Based on the data available to the 

Agency, SCR achieves lower emissions 

than other control technologies; (2) SCR 

technology is less expensive and more 

cost effective than nonselective catalytic 

reduction (NSCR) for control of NOX

emissions; and (3) SCR produces 

minimal secondary environmental 

impacts. In addition, we note that SCR 

is the only known NOX control 

technology being installed in new 

NAPUs and SCR has been determined to 

be BACT in several recent BACT 

determinations. 

Although the limit of 0.50 lb NOX/ton 

acid is based on the data for SCR, NSPS 

do not require the use and installation 

of a specific control device. Whether 

NSCR can meet the levels achievable by 


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Federal Register / Vol. 77, No. 157 / Tuesday, August 14, 2012 / Rules and Regulations 48437 

SCR over a long term was an area of 

uncertainty at proposal. At proposal, the 

long term CEMS data from 2 NSCR 

plants (PCS Geismar Train 4 and 

Agrium Sacramento) indicated that 

neither plant was achieving the 0.50 lb 

NOX/ton limit. After proposal, we 

evaluated continuous NOX emission 

data from Dyno Nobel—St Helens 

(which uses NSCR) that showed a 

maximum 30 day emission rate of 0.21 

lb NOX/ton acid. Also, we had monthly 

data from JR Simplot (another nitric 

acid plant with NSCR) that ranged from 

0.15 to 0.36 lb NOX/ton acid. Although 

the data from JR Simplot are not directly 

comparable to continuous NOX

emission data (hour by hour), there is a 

strong probability that this source also 

could comply with 0.50 lb NOX/ton 

acid. Therefore, we conclude the 

standard of 0.50 lb NOX/ton acid limit 

is achievable for at least some NAPUs 

using NSCR. 

We conclude that new NAPUs will be 

able to meet the limit taking into 

consideration routine operating 

variability as well as variation due to 

weather and periods of startup and 

shutdown as the data analyzed included 

all of these periods. Based on the data 

available to the agency, the limit is 

demonstrated in practice and achievable 

for new, modified, or reconstructed 

sources. See Statistical Evaluation of 

CEMS Data to Determine the NOX

Emission Standard (Updated Memo for 

Final Standard), for more information. 

B. How is the EPA revising the testing 

and monitoring requirements that were 

proposed for Subpart Ga of Part 60? 

We are finalizing the testing and 

monitoring requirements that were 

proposed for Subpart Ga and adding the 

requirement of a dual span monitor for 

reasons explained in Section V of this 

preamble. 

C. How is the EPA revising the 

notification, reporting, and 

recordkeeping requirements that were 

proposed for Subpart Ga? 

The reporting and recordkeeping 

requirements that we proposed are 

being finalized as separate sections for 

Subpart Ga. Since proposal, there have 

been minor changes to the reporting 

language at § 60.77a(e) in relation to 

EPA’s Central Data Exchange (CDX), 

detailed below, but no other changes 

have been made to the electronic 

reporting requirements. 

The EPA must have performance test 

data to conduct effective reviews of 

CAA section 111 standards, as well as 

for many other purposes including 

compliance determinations, emission 

factor development, and annual 

emission rate determinations. In 

conducting these required reviews, the 

EPA has found it ineffective and time 

consuming, not only for us, but also for 

regulatory agencies and source owners 

and operators, to locate, collect, and 

submit performance test data because of 

varied locations for data storage and 

varied data storage methods. In recent 

years, though, stack testing firms have 

typically collected performance test data 

in electronic format, making it possible 

to move to an electronic data submittal 

system that would increase the ease and 

efficiency of data submittal and improve 

data accessibility. 

In this action, as a step to increase the 

ease and efficiency of data submittal 

and improve data accessibility, EPA is 

requiring the electronic submittal of 

select performance test data. 

Specifically, the EPA is requiring 

owners and operators of Nitric Acid 

facilities to submit electronic copies of 

performance test reports required under 

Subpart Ga of part 60 to the EPA’s 

WebFIRE database. The WebFIRE 

database was constructed to store 

performance test data for use in 

developing emission factors. A 

description of the WebFIRE database is 

available at http://cfpub.epa.gov/ 

oarweb/index.cfm?action=fire.main. 

As mentioned above, data entry will 

be through an electronic emissions test 

report structure called the Electronic 

Reporting Tool (ERT). The ERT will 

generate an electronic report which will 

be submitted using the Compliance and 

Emissions Data Reporting Interface 

(CEDRI). The submitted report is 

submitted through the EPA’s Central 

Data Exchange (CDX) network for 

storage in the WebFIRE database making 

submittal of data very straightforward 

and easy. A description of the ERT can 

be found at http://www.epa.gov/ttn/ 

chief/ert/index.html and CEDRI can be 

accessed through the CDX Web site 

(www.epa.gov/cdx). 

The requirement to submit 

performance test data electronically to 

the EPA does not create any additional 

performance testing and would apply 

only to those performance tests 

conducted using test methods that are 

supported by the ERT. The ERT 

contains a specific electronic data entry 

form for most of the commonly used 

EPA reference methods. A listing of the 

pollutants and test methods supported 

by the ERT is available at http:// 

www.epa.gov/ttn/chief/ert/index.html. 

We believe that industry will benefit 

from this new electronic data submittal 

requirement. Having these data, the EPA 

will be able to develop improved 

emission factors, make fewer 

information requests, and promulgate 

better regulations. The information to be 

reported is already required for the 

existing test methods and is necessary to 

evaluate the conformance to the test 

method. 

One major advantage of submitting 

performance test data through the ERT 

is a standardized method to compile 

and store much of the documentation 

required to be reported by this rule. 

Another advantage is that the ERT 

clearly states what testing information 

would be required. Another important 

benefit of submitting these data to the 

EPA at the time the source test is 

conducted is that it should substantially 

reduce the effort involved in data 

collection activities in the future. When 

the EPA has performance test data in 

hand, there will likely be fewer or less 

substantial data collection requests in 

conjunction with prospective 

technology reviews. This results in a 

reduced burden on both affected 

facilities (in terms of reduced manpower 

to respond to data collection requests) 

and the EPA (in terms of preparing and 

distributing data collection requests and 

assessing the results). 

State, local, and tribal agencies can 

also benefit from a more streamlined 

and accurate review of electronic data 

submitted to them. The ERT allows for 

an electronic review process rather than 

a manual data assessment making 

review and evaluation of the data and 

calculations easier and more efficient. 

Finally, another benefit of submitting 

data to WebFIRE electronically is that 

these data will greatly improve the 

overall quality of the existing and new 

emission factors by supplementing the 

pool of emissions test data for 

establishing emissions factors and by 

ensuring that the factors are more 

representative of current industry 

operational procedures. A common 

complaint heard from industry and 

regulators is that emission factors are 

outdated or not representative of a 

particular source category. With timely 

receipt and incorporation of data from 

most performance tests, the EPA will be 

able to ensure that emission factors, 

when updated, represent the most 

current range of operational practices. In 

summary, in addition to supporting 

regulation development, control strategy 

development, and other air pollution 

control activities, having an electronic 

database populated with performance 

test data will save industry, state, local, 

tribal agencies, and the EPA significant 

time, money, and effort while improving 

the quality of emission inventories and, 

as a result, air quality regulations. 

Several changes were made to the 

recordkeeping and reporting provisions 

related to the affirmative defense 


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provisions of the final rule. In addition 

to minor wording changes to improve 

clarity, the EPA added language to 

60.74a(a)(9) to clarify that the purpose 

of the root cause analysis is to 

determine, correct, and eliminate the 

primary cause of the malfunction. The 

root cause analysis itself does not 

necessarily require that the cause be 

determined, corrected or eliminated. 

However, in most cases, the EPA 

believes that a properly conducted root 

cause analysis will have such results. 

The EPA also eliminated the 2-day 

notification requirement in 60.74a 

because EPA will receive sufficient 

notification of malfunction events that 

result in violations in other required 

compliance reports, such as the reports 

required under 60.77a. In addition, EPA 

revised 60.74a(b) to state that ‘‘[t]he 

owner or operator seeking to assert an 

affirmative defense shall submit a 

written report to the Administrator with 

all necessary supporting documentation, 

that it has met the requirements set forth 

in paragraph (a) of this section. This 

affirmative defense report shall be 

included in the first periodic 

compliance, deviation report or excess 

emission report otherwise required after 

the initial occurrence of the violation of 

the relevant standard (which may be the 

end of any applicable averaging period). 

If such compliance, deviation report or 

excess emission report is due less than 

45 days after the initial occurrence of 

the violation, the affirmative defense 

report may be included in the second 

compliance, deviation report or excess 

emission report due after the initial 

occurrence of the violation of the 

relevant standard.’’ 

V. Summary of Significant Comments 

and Responses to the Proposed NSPS 

The EPA received comments on a 

number of issues during the public 

comment period. These issues include 

the level and time period of the NOX

standard, NOX monitoring requirements, 

issues related to startup and shutdown, 

and regulation of GHGs from nitric acid 

plants. Summaries of the major 

comments and EPA responses are 

presented in the following paragraphs. 

Summaries of comments on these and 

other issues that are not presented in the 

preamble, as well as the EPA’s 

responses to those comments, can be 

found in the Response to Comment 

Document. The Response to Comment 

Document is available in the docket for 

this final rule, EPA–HQ–OAR–2010– 

0750. 

Comment: Multiple commenters 

supported the EPA’s decision to tighten 

the standard for NOX emissions. One 

commenter stated that the revisions to 

the standard are warranted given the 

low emissions achieved by well 

controlled facilities across the industry, 

as shown in the ICR data, and the 

lengthy delay in reviewing the NSPS. 

The commenter asks that the EPA 

consider the myriad health effects 

related to NOX emissions when 

determining the standard for the final 

rule. The commenter notes that these 

effects include direct effects from NOX

exposure as well as effects of secondary 

pollutants, such as ozone and fine 

particulate matter, for which NOX is a 

precursor. 

One commenter agrees that the EPA 

has clearly demonstrated that its 

proposed NOX standard of 0.50 lb/ton 

based on a 30-day rolling emission rate 

is not only ‘‘achievable’’ and 

‘‘adequately demonstrated,’’ it is already 

routinely being achieved at multiple 

facilities within the industry. Given the 

technology-forcing nature of Section 

111’s BDT standard, the commenter 

believes that EPA could establish a 

standard more stringent than its current 

proposal. Nevertheless, the commenter 

believes that the proposed emission 

limit is within the range of what is 

reasonable for purposes of the NSPS 

program. 

Another commenter stated that the 

standard should be more stringent than 

what was proposed based on the fact 

that some facilities are achieving lower 

emissions than the proposed limit. The 

commenter further stated that the EPA 

failed to justify why a standard more 

stringent than 0.50 lb/ton was not 

proposed. The commenter states that the 

EPA appeared to accommodate current 

industry practice rather than comply 

with the ‘‘technology forcing’’ mandate 

of CAA section 111. One commenter 

suggested that the EPA should set a 

tighter limit than the proposed standard 

because ‘‘most control systems installed 

on future affected facilities would 

achieve emissions below the proposed 

emissions limit even in the absence of 

these proposed revisions.’’ 

Response: The EPA disagrees with 

commenters that the emission limit 

should be more stringent. The EPA 

believes that the rationale for proposing 

the standard of 0.50 lb NOX/ton acid 

was well supported by the emissions 

data and continues to be well supported 

for the final rule. The emissions data 

from the three ICR test plants that 

employ SCR (Agrium North Bend, PCS 

Geismar Train 5, and El Dorado 

Nitrogen) have no discernible 

differences in technology or process that 

would account for the differences in 

emission levels. Therefore we selected 

an emission limit that was achievable by 

all three of the units controlled by SCR. 

Emissions during some short periods 

(e.g. startup and shutdown) can be 

higher than during steady state 

operations at some nitric acid plants. At 

proposal, we estimated these periods to 

occur on average about 3 to 4 hours per 

month. However, as the result of public 

comments, we have learned that these 

periods can occur more frequently for 

some facilities. These periods still make 

up an extremely small fraction of total 

operating time (i.e. about 1 percent or 

less). In response to public comments, 

the final rule contains a revised method 

for calculating NOX emissions. The 

calculation method used at proposal 

assumed that each operating day was 

weighted equally, regardless of the 

numbers of operating hours during that 

day. The proposed method could 

hypothetically lead to a day with only 

a few operating hours contributing 1/ 

30th of the calculated rolling emission 

rate. The calculation method used for 

the final rule has been established such 

that every hourly NOX concentration 

monitored during each 30 unit operating 

day period is weighted equally. The 

adjusted calculation calculates each 

hourly emission rate and divides by the 

total operating hours. This adjustment 

prevents infrequent and short duration 

events from having an 

unrepresentatively large impact on the 

30 day rolling emission rate. Using the 

adjusted calculation method, the 

maximum 30 day rolling emission rate 

for any of the three ICR test plants with 

SCR is 0.41 lb NOX/ton acid at Agrium 

North Bend. 

The EPA also reanalyzed the CEMS 

data using the assumption that the 

number of periods of startup and 

shutdown could be higher for some 

facilities compared to the number of 

periods reported for Agrium North 

Bend. EPA compared the number of 

startup/shutdown periods for Agrium 

North Bend to the highest number of 

startup/shutdown periods reported 

through the Section 114 request. 

According to the information received 

in response to the Section 114 request, 

the highest number of hourly startup/ 

shutdown (SS) periods per year was 

reported as 95 by Coffeyville. 

Information received after publication of 

the proposed rule indicates there are 

reasons that other facilities may startup 

and shutdown more frequently than the 

Agrium North Bend facility. 

To look at the impact of more frequent 

start up and shutdown periods, we 

doubled the 67 hourly SS periods 

reported by Agrium North Bend to 134 

hourly SS periods, which would place 

them above the highest number of SS 

periods from any of our Section 114 

respondents. Then, we analyzed the 


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CEMS data for Agrium North Bend by 

assuming that the number of SS periods 

is doubled. The resulting maximum 30 

operating day emission rate is 0.47 lb 

NOX/ton acid. This example 

demonstrates that the limit promulgated 

in this final rule is achievable by 

affected facilities that experience more 

periods of startup and shutdown than 

the Agrium North Bend plant. See 

Agrium North Bend Analyses, and 

Statistical Evaluation of CEMS Data to 

Determine the NOX Emission Standard 

(Updated Memo for Final Standard), 

available in docket ID: EPA–HQ–OAR– 

2010–0750. Thus, we conclude that a 

limit of 0.50 lb NOX/ton acid is 

appropriate. 

The EPA disagrees with the 

commenter that stated ‘‘the proposed 

standard appears to simply 

accommodate current industry practice 

rather than properly comply with the 

EPA’s technology-forcing mandate 

under CAA § 111.’’ The EPA maintains 

that SCR is the ‘‘best system of emission 

reduction’’ even though it is not a new 

technology. It is unclear what 

technologies the commenter suggests 

would work more effectively for 

controlling NOX emissions than those 

evaluated during this rulemaking (SCR 

and NSCR). Though the CAA is 

intended to be ‘‘technology-forcing,’’ 

NSPS must be set based on ‘‘substantial 

evidence that such improvements are 

feasible and will produce the improved 

performance necessary to meet the 

standard.’’ Sierra Club v. Costle, 657 

F.2d 298, 364 (D.C. Cir. 1981). As one 

court stated, ‘‘[t]he statutory standard is 

one of achievability, given costs.’’ 

National Lime Assn. v. EPA, 627 F.2d 

416, 431 n.46 (D.C. Cir. 1980). Further, 

in assessing whether a standard is 

achievable, the EPA must account for 

routine operating variability associated 

with performance of the system on 

whose performance the standard is 

based. See National Lime Ass’n, 627 F. 

2d at 431–33. While NSPS are based on 

the effectiveness of one or more specific 

technological systems of emissions 

control, unless certain conditions are 

met, the CAA does not authorize the 

EPA to prescribe a particular 

technological system that must be used 

to comply with a NSPS. See CAA 

section 111(b)(5). Rather, sources can 

select whatever combination of 

measures will achieve equivalent or 

greater control of emissions. 

Comment: Commenters stated that the 

EPA did not fulfill the requirements of 

CAA section 111 because the agency 

failed to consider the variable 

conditions present in the industry that 

impact that achievability of the 

proposed standard. Specifically, the 

commenters stated that the EPA failed 

to consider the costs of adding 

additional controls to modified or 

reconstructed facilities that are 

controlled with NSCR given that the 

EPA acknowledged that there was 

uncertainty at the time of the proposed 

rule that NSCR controlled plants could 

achieve the 0.50 lb/ton limit. 

Another commenter stated that the 

facilities used to develop the proposed 

standard are not representative of the 

industry as a whole because these three 

facilities use controls that are not in use 

or not available to all nitric acid plants. 

The commenter notes that two of the 

three plants (PCS Geismar and El 

Dorado Nitrogen) were designed with 

dual-pressure technology and other 

features that minimize emissions. 

According to the commenter, these 

technologies may not be available to 

smaller new plants or modified plants. 

The commenter also notes that El 

Dorado Nitrogen has high pressure 

steam that can be used to pre-heat the 

SCR and the Agrium North Bend facility 

uses hydrogen peroxide injection and 

extended absorption. According to the 

commenter, these control technologies 

may not be economically feasible for 

some facilities. The commenter further 

states that adding a SCR or NSCR may 

not be enough to meet the proposed 

limit for some existing mono-pressure 

facilities that trigger the NSPS. 

Response: The EPA agrees that further 

evaluation of the achievability of the 

standard by nitric acid plants that have 

been modified or reconstructed was 

warranted prior to issuing the final rule. 

The commenters identified a few nitric 

acid plants that fit those definitions, and 

we performed further evaluation of the 

NOX CEMS data for such plants. 

A BACT determination has been made 

on a modified source (Agrium North 

Bend) for which we have CEMS data. 

We note that the Agrium North Bend 

facility is a relatively small, 

monopressure, modified facility. As part 

of our evaluation, we analyzed the data 

for this plant to estimate emissions 

performance of this BACT facility and 

have determined this facility meets the 

NOX limit in this final rule. See memo 

entitled Agrium North Bend Analyses, 

which is available in the docket for this 

rulemaking: EPA–HQ–OAR–2010–0750. 

As a part of our analysis, we have 

evaluated the cost for controls required 

for the Agrium North Bend plant when 

this facility was modified. An SCR was 

installed at a capital cost of roughly 

$2,700,000 ($370,000 annualized cost, 

assuming a 20 year capital recovery 

period). This facility achieved emissions 

reductions of nearly 300 tons of NOX

per year. From these figures, we 

calculate the cost effectiveness for the 

addition of this control device as 

roughly $1,200 per ton of NOX. See the 

memo Impacts of Nitric acid NSPS 

Review-NOX (Updated Memo for Final 

NSPS). We conclude this cost 

effectiveness is reasonable and 

supported by NSPS for NOX for other 

source categories. See 77 FR 9303, 76 FR 

24976, 75 FR 51570, and 75 FR 55009. 

The EPA has decided to promulgate a 

limit of 0.50 lb NOX/ton calculated in a 

manner that is more appropriate than 

what was proposed. The calculation in 

the final rule uses each hourly NOX

emission rate during the 30 day period 

rather than creating 30 daily values. See 

Statistical Evaluation of CEMS Data to 

Determine the NOX Emission Standard 

(Updated Memo for Final Standard), 

and Agrium North Bend Analyses, for 

more information on the 30 day rolling 

emission rate calculations. We conclude 

that the modified monopressure Agrium 

North Bend plant would meet this 

emission limit of 0.50 lb NOX/ton acid, 

and that this level is appropriate for 

future modified and reconstructed 

sources as well as new sources. For a 

discussion of the data received from the 

American Chemistry Council after the 

proposed rule, see Analysis of Data 

Received Between Proposal and 

Promulgation of Part 60, Subpart Ga, 

which is available in docket ID EPA– 

HQ–OAR–2010–0750. Also see 

Response to Comment Document 

section 7.1–7.3. 

At proposal, there was uncertainty as 

to whether units using NSCR could 

achieve the proposed limits. We have 

evaluated CEMS data for two additional 

plants using NSCR and these facilities 

do meet the final emission limit. We 

evaluated continuous NOX emission 

data from Dyno Nobel St. Helens. This 

analysis shows a maximum 30 operating 

day emission rate of 0.21 lb NOX/ton 

acid. Also, we had monthly data from JR 

Simplot, a nitric acid plant controlled 

by NSCR, which ranged from 0.15 lb 

NOX/ton acid to 0.36 lb NOX/ton acid. 

Although monthly data are not directly 

comparable to continuous hourly NOX

emission data, there is a strong 

probability that this source controlled 

by NSCR could comply with 0.50 lb 

NOX/ton acid. Therefore, based on our 

evaluation of this technical information, 

we conclude the standard of 0.50 lb 

NOX/ton acid limit is achievable for at 

least some nitric acid production units 

using NSCR. 

The conclusion that selective catalytic 

reduction (SCR) is BSER has not 

changed from proposal. The justification 

includes the following reasons: (1) 

Based on the data available to the 

Agency, SCR achieves lower emissions 


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than other control technologies; (2) SCR 

technology is less expensive and more 

cost effective than nonselective catalytic 

reduction (NSCR) for control of NOX

emissions; and (3) SCR produces 

minimal secondary environmental 

impacts. In addition, we note that SCR 

is the only known NOX control 

technology being installed in new 

NAPUs and SCR has been determined to 

be BACT in several recent BACT 

determinations. 

If higher NOX emissions during 

periods of startup and shutdown are a 

concern, there are two types of 

equipment that can be used by affected 

facilities. These include startup heaters 

and hydrogen peroxide injection. 

Startup heaters are used to heat the SCR 

to the appropriate operating temperature 

so that the SCR can be operational 

during startups, thereby reducing NOX

emissions during startup. Hydrogen 

peroxide injection, which is not 

applicable in all situations, can also be 

used in the extended absorption column 

to decrease NOX emissions. Affected 

facilities could also employ extended 

absorption to increase the yield of nitric 

acid; thus reducing the amount of NOX

emitted from the absorption unit. We 

recognize that there may be 

circumstances where one or more of 

these specific types of equipment or 

measures may not be feasible. However, 

based on all of the data and information 

that we have gathered and analyzed, we 

conclude any facility (including mono 

pressure units) that chooses to modify 

or reconstruct will be able to achieve a 

limit of 0.50 lb/ton at a reasonable costs 

by adding controls (e.g., SCR) and or by 

making other changes such as those 

described above. Additionally, because 

the standard is based on 30-day 

emission rates, even if these 

technologies are not employed, 

emissions during brief periods of startup 

or shutdown should not have 

substantial impacts on the source’s 

ability to meet the standard. 

Comment: Several commenters 

supported the EPA’s decision not to take 

final agency action with respect to 

greenhouse gases in today’s rule. The 

commenters stated that the EPA is not 

obligated to develop standards for GHG 

as a part of the 8 year review of the 

NSPS and that the EPA has broad 

discretion to decide whether and how to 

regulate greenhouse gases. 

Alternatively, some commenters state 

that the EPA’s discretion to develop 

standards for pollutants not previously 

subject to NSPS is limited by the 

language of the statute. The commenters 

state that the clearest reading of CAA 

sections 111(a) and 111(b) require the 

EPA to regulate any pollutant emitted 

from a listed source category when it is 

cost effective to do so. 

Multiple commenters assert that 

Congress intended for the EPA to 

regulate the full scope of air pollution 

emitted by a source category when 

developing the initial NSPS because the 

language of CAA section 111 repeatedly 

refers to ‘‘any’’ air pollutant emitted by 

source categories subject to regulation 

under this section. The commenter 

asserts that the use of the word ‘‘any’’ 

as a modifier for ‘‘air pollutant’’ limits 

the EPA’s discretion to decline to set 

NSPS for pollutants emitted from a 

listed source category. Although ‘‘any’’ 

is not included as a modifier for ‘‘air 

pollutant’’ in Section 111(a)(1)’s 

definition of ‘‘standard of performance,’’ 

the commenter notes that it is included 

in the definitions of the term 

‘‘modification.’’ According to the 

commenter, under Section 111(b), NSPS 

standards apply to facilities constructed 

or modified after standards have been 

set. The commenter notes that if an 

existing facility undergoes a 

modification, a physical change that 

increases the emission of ‘‘any’’ air 

pollutant, it is a structure now subject 

to NSPS. The commenter asserts that 

reading Section 111 to allow for 

unlimited agency discretion on which 

pollutants require performance 

standards could lead to the peculiarity 

that a facility could become subject to 

NSPS regulation by increasing its 

emissions of a pollutant for which EPA 

has chosen not to set standards. 

According to one commenter, the 

emissions of GHGs from nitric acid 

plants would warrant listing the nitric 

acid plant source category, even in the 

absence of NOX emissions. The 

commenter asserts that the EPA is 

obligated to set standards for GHGs from 

nitric acid plants to avoid a situation in 

which a facility could become subject to 

NSPS for increased emissions of a 

pollutant that is not subject to a 

standard. The commenters say that the 

same scope that applies when the EPA 

develops new NSPS exists when the 

EPA reviews an existing NSPS and 

requires the EPA to review and update 

(or develop) the performance standard 

for all emitted air pollutants. 

One commenter states that the EPA 

must regulate GHGs in this rulemaking 

action based on the decision by the U.S. 

Supreme Court in Massachusetts v. 

EPA, which held that GHGs fall within 

the CAA definition of ‘‘air pollutant’’. 

The commenter states that since GHGs 

are defined as ‘‘air pollutants’’ and 

Section 111 of the CAA creates a general 

duty for the EPA to regulate such 

emissions, it would be unlawful for the 

EPA to choose not to regulate GHGs in 

this action. The commenter states that 

the EPA has failed to provide an 

adequate explanation for its failure to 

regulate nitrous oxide and other 

greenhouse gas emissions from nitric 

acid plants. According to the 

commenter, the only way the EPA could 

legitimately avoid establishing 

standards for nitrous oxide and other 

greenhouse gas emissions from nitric 

acid plants would be if it developed a 

record clearly demonstrating that such 

regulations would not be appropriate 

based on relevant and lawful 

considerations. The commenter notes 

that the EPA has made no effort to make 

such a showing with respect to nitric 

acid plants. 

Response: While the CAA permits the 

EPA, under appropriate circumstances, 

to add new standards of performance for 

additional pollutants, the EPA is not 

taking final agency action with regard to 

standards for GHG at this time. 

The EPA has promulgated new 

performance standards for pollutants 

not previously covered concurrent with 

some previous 8-year review 

rulemakings. See 52 FR 24672, 24710 

(July 1, 1987) (considering PM10

controls in future rulemakings); 71 FR 

9866 (February 27, 2006) (new PM 

standards for boilers). Additionally, as 

commenters correctly point out, the 

EPA is promulgating a new standard of 

performance for NOX emissions from 

certain affected facilities at nitric acid 

plants in this rulemaking. The EPA does 

not yet have adequate information 

regarding emissions of GHGs from nitric 

acid plants, the cost and secondary 

impacts of controlling NOX and GHGs, 

and the level of emissions achieved 

through simultaneous control of GHGs 

and NOX. However, because the Agency 

is in the process of gathering 

information and reviewing controls for 

this industry to continue working 

towards a proposal for GHG standards 

for nitric acid plants, the EPA is not 

taking any final action in today’s rule 

with respect to a GHG standard for 

nitric acid plants. 

Comment: Multiple commenters state 

that the EPA must promulgate section 

111(d) standards for existing facilities 

within the nitric acid sector. One 

commenter states that promulgation of a 

performance standard for greenhouse 

gas emissions from newer nitric acid 

plants will enable (and compel) EPA to 

issue emission guidelines and to require 

states to submit implementation plans 

demonstrating how they will control 

greenhouse gas emissions from existing 

nitric acid plants. The commenter notes 

that Section 111(d) was meant to be a 

gap-filling provision intended to 

regulate this third category, and EPA’s 


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main focus was on pollutants rather 

than source categories. Here, according 

to the commenter, nitrous oxide and 

other greenhouse gases are pollutants 

that endanger public health welfare, and 

existing nitric acid plants are significant 

sources of such pollution. According to 

the commenter, existing nitric acid 

plants account for the vast majority of 

the industry’s nitrous oxide emissions, 

and they will continue to do so for some 

time until older plants eventually retire 

and are replaced with newer plants. 

Another commenter recommends that 

the EPA update section 111(d) standards 

as soon as possible because these 

standards are long overdue and 

technology exists that is capable of 

reducing emissions. 

One commenter states that the EPA 

should develop emission guidelines for 

existing sources to prevent 

‘‘grandfathering’’ of existing sources that 

can occur when section 111(b) is used 

without concurrent use of section 

111(d). The commenter states that the 

absence of emission guidelines for 

existing sources creates a disincentive to 

build new, more environmentally 

friendly sources. The commenter asserts 

that there is existing technology to limit 

emissions from existing sources that is 

likely cost-effective. Another 

commenter states that the EPA should 

develop standards for GHGs from 

existing nitric acid plants through the 

collaborative, iterative process of setting 

section 111(d) emission guidelines 

given the importance of GHG emissions 

from existing nitric acid plants. 

Response: Emission guidelines for 

existing sources are developed 

concurrently or after standards of 

performance for new, modified, or 

reconstructed sources. See 40 CFR 

60.22(a) (‘‘Concurrently upon or after 

proposal of standards of performance for 

the control of a designated pollutant 

from affected facilities, the 

Administrator will publish a draft 

guideline document containing 

information pertinent to control of the 

designated pollutant from designated 

facilities.’’). See also CAA section 

111(d)(1) (emission guidelines are 

developed for existing sources in a 

source category for a pollutant ‘‘to 

which a standard of performance under 

this section would apply if such existing 

source were a new source’’). Under the 

NSPS program, the Agency only 

develops section 111(d) existing source 

emission guidelines for non-criteria 

pollutants and non-HAPs. 

In this action, we are reviewing and 

revising the NOX standard for new, 

modified, or reconstructed sources 

under section 111(b). As noted above, 

Section 111(d) does not provide 

authority to the Agency to set emission 

guidelines for existing sources for 

criteria pollutants, such as NOX. 

With respect to emissions guidelines 

for existing sources of GHGs, we are not 

taking final action with respect to GHG 

emissions from new, modified, or 

reconstructed sources in today’s rule. As 

noted above, emissions guidelines for 

existing sources are set concurrently 

with or after standards for new, 

modified or reconstructed sources, and 

so we are also not taking any final 

action to develop emissions guidelines 

for existing sources of GHGs. 

VI. Summary of Cost, Environmental, 

Energy, and Economic Impacts of These 

Standards 

In setting standards, the CAA requires 

us to consider alternative emission 

control approaches, taking into account 

the estimated costs as well as impacts 

on energy, solid waste, and other effects. 

A. What are the impacts for nitric acid 

production units? 

We are presenting estimates of the 

impacts for 40 CFR part 60, Subpart Ga, 

the performance standards for new 

NAPUs constructed or reconstructed 

after October 14, 2011. The cost, 

environmental, and economic impacts 

presented in this section are expressed 

as incremental differences between the 

impacts of NAPUs complying with 

Subpart Ga and the current NSPS 

requirements of Subpart G (i.e., 

baseline). The impacts are presented for 

future NAPUs that commence 

construction, reconstruction, or 

modification over the five years 

following promulgation of the revised 

NSPS. To account for variation in the 

value of money over time, all 

annualized costs have been scaled to the 

2nd quarter of 2010 using the Marshall 

and Swift Index. The analyses and the 

documents referenced below can be 

found in Docket ID No. EPA–HQ–OAR– 

2010–0750. 

In order to determine the incremental 

impacts of this rule, we first estimated 

the number of new NAPUs that would 

become subject to regulation during the 

five year period after promulgation of 

Subpart Ga. Based on existing NAPUs 

and estimated future growth rates, six 

NAPUs are expected to trigger Subpart 

Ga NSPS in that five year period. In 

response to concerns from commenters, 

we have included five new NAPUs and 

one modified or reconstructed NAPU in 

the impact analysis for the final rule. 

For further detail on the methodology of 

these calculations, see memorandum 

Impacts of Nitric Acid NSPS Review— 

NOX (Updated Memo for Final NSPS), 

in Docket ID No. EPA–HQ–OAR–2010– 

0750. 

The Subpart Ga NOX emission limit 

being promulgated in this action reflects 

the control technology currently in use 

by the industry. The Subpart G NSPS 

NOX emissions limit can be achieved 

using a number of control techniques 

including NSCR, SCR and HPI. We 

expect most new facilities to employ 

SCR to comply with Subpart Ga. Since 

we expect new units will apply the 

same control technology to comply with 

the revised limit being promulgated in 

today’s action as they would have 

applied to meet the current limit, there 

is no increase in control costs of 

meeting the emission limit of 0.50 lb 

NOX/ton acid for new NAPUs. 

There are differences in notification, 

testing, monitoring, reporting, and 

recordkeeping (MRR) between Subpart 

G and the new Subpart Ga that result in 

increased costs for new and modified 

NAPUs. These will include the capital 

cost of installing an air flow monitor 

and a dual span NOX concentration 

monitor ($39,000 per NAPU and 

$23,000 per NAPU, respectively). These 

costs represent annualized costs of 

$15,000 per NAPU and $9,000 per 

NAPU, respectively. Annual costs will 

also be incurred for reporting, 

recordkeeping, and stack testing and 

total $72,000 for all six NAPUs. The 

incremental stack testing costs are due 

to the Appendix F requirements for 

annual rather than one-time testing for 

CEMS certification. They were 

inadvertently omitted from the cost 

analysis in the proposed rule. These 

increased costs are the only increased 

costs that will be incurred by new 

facilities as a result of the revised 

standards being promulgated in today’s 

action. They are shown in Table 2. 

The industry-wide cost estimate has 

been changed from the proposal. In the 

proposal we estimated that there would 

be six new sources during the first five 

years of the new Subpart Ga. We now 

estimate that there will be one modified 

source and five new sources during 

those five years. We estimate that the 

modified source would install an SCR 

system at a capital cost of $2.7 million 

and a total annualized cost of $370,000. 

The costs for the modified source are 

shown in Table 3. 

The potential nationwide emission 

reduction associated with lowering the 

NOX limit from 3.0 to 0.50 lb NOX/ton 

acid (100 percent acid basis) is 

estimated to be about 2100 tons per year 

(tpy) NOX. 

At proposal, the estimated capital 

costs and annualized costs for Subpart 

Ga were $234,000, and $90,000, 

respectively. The cost effectiveness was 


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estimated at $45 per ton of NOX. Based 

on the revised costs estimates discussed 

above, we currently estimate the final 

capital costs and annualized costs to be 

$3.1 million and $585,000, respectively, 

for all six of the production units 

projected to become subject to subpart 

Ga between 2012 and 2017. These costs 

result in a cost effectiveness of about 

$280 per ton of NOX. 

The estimated nationwide 

incremental 5-year NOX emissions 

reductions and cost impacts for these 

revisions are summarized in Table 4 of 

this preamble. The methodology is 

detailed in the memorandum Impacts of 

Nitric Acid NSPS Review—NOX

(Updated Memo for Final NSPS). 

Further discussion of this cost 

effectiveness is available in the Section 

V of this preamble. As discussed in 

Section V, the cost effectiveness in this 

NSPS is reasonable and supported by 

previous NSPS for NOX. 

TABLE 2—NATIONAL INCREMENTAL NOX EMISSION REDUCTIONS AND COST IMPACTS FOR NEW NITRIC ACID PRODUCTION

UNITS SUBJECT TO STANDARDS UNDER 40 CFR PART 60, SUBPART Ga (FIFTH YEAR AFTER PROMULGATION) 

Revisions for future affected facilities Total capital cost 

[$1,000] 

Total annualized 

cost 

[$1,000/yr] 

Estimated annual 

NOX emission 

reductions 

[tons NOX/yr] 

Estimated cost 

effectiveness 

[$/ton NOX] 

Revisions to NOX emission limit ...................................................... $0 $0 1806 ............................

Revisions to MRR requirements ...................................................... 310 180 ............................ ............................

Total .......................................................................................... 310 180 1806 100 

TABLE 3—NATIONAL INCREMENTAL NOX EMISSION REDUCTIONS AND COST IMPACTS FOR MODIFIED OR RECONSTRUCTED

NITRIC ACID PRODUCTION UNITS SUBJECT TO STANDARDS UNDER 40 CFR PART 60, SUBPART Ga (FIFTH YEAR

AFTER PROMULGATION) 

Revisions for future affected facilities Total capital cost 

[$1,000] 

Total annualized 

cost 

[$1,000/yr] 

Estimated annual 

NOX emission 

reductions 

[tons NOX/yr] 

Estimated cost 

effectiveness 

[$/ton NOX] 

Revisions to NOX emission limit ...................................................... $2,700 $370 299 $1,200 

Revisions to MRR requirements ...................................................... 62 36 ............................ ............................

Total .......................................................................................... 2,762 406 299 1,360 

TABLE 4—NATIONAL INCREMENTAL NOX EMISSION REDUCTIONS AND COST IMPACTS FOR ALL NITRIC ACID PRODUCTION

UNITS SUBJECT TO STANDARDS UNDER 40 CFR PART 60, SUBPART Ga (FIFTH YEAR AFTER PROMULGATION) * 

Revisions for future affected facilities Total capital cost 

[$1,000] 

Total annualized 

cost 

[$1,000/yr] 

Estimated annual 

NOX emission 

reductions [tons 

NOX/yr] 

Estimated cost 

effectiveness 

[$/ton NOX] 

Revisions to NOX emission limit ...................................................... $2,700 $370 2,104 $176 

Revisions to MRR requirements ...................................................... 372 215 ............................ ............................

Total .......................................................................................... 3,072 585 2,104 278 

* Any small discrepancies between Tables 2, 3, and 4 are due to rounding. 

B. What are the secondary impacts for 

nitric acid production units? 

Indirect or secondary air quality 

impacts are impacts that would result 

from the increased electricity usage 

associated with the operation of control 

devices (i.e., increased secondary 

emissions of criteria pollutants from 

power plants). Energy impacts consist of 

the electricity and steam needed to 

operate control devices and other 

equipment that would be required 

under this final rule. The five new 

sources would likely install the same 

control systems to comply with the 

current Subpart G NOX emission limit 

or this Subpart Ga NOX emission limit. 

The revisions being finalized in today’s 

rule require the addition of exhaust gas 

flow monitors and dual span NOX

concentration monitors, which would 

result in minimal secondary air impacts 

or increase in overall energy demand. 

For the one modification expected to 

take place over the next five years, the 

installation of an SCR is expected. This 

addition will result in secondary air 

impacts and/or an increase in overall 

energy demand. However, the 

reductions in NOX emissions achieved 

through installation of this control 

equipment will greatly outweigh any 

secondary air impacts associated with 

increased electricity use. See Secondary 

Impact Analysis—SCR. 

C. What are the economic impacts for 

nitric acid production units? 

We performed an economic impact 

analysis that estimates changes in prices 

and output for NAPUs nationally using 

the annual compliance costs estimated 

for this rule. All estimates are for the 

fifth year after promulgation since this 

is the year for which the compliance 

cost impacts are estimated. The impacts 

to producers and consumers affected by 

this rule are slightly higher product 

prices and slightly lower outputs. Prices 

for products (nitric acid) from affected 

plants should increase by less than 0.36 

percent for the fifth year. The output of 

nitric acid should decrease by less than 

1.20 percent for the fifth year. Hence, 

the overall economic impact of this 


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NSPS should be low on the affected 

industries and their consumers. For 

more information, please refer to the 

Economic Impact Analysis for this 

rulemaking in the public docket. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

The information collection 

requirements in this final rule have been 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

requirements are not enforceable until 

OMB approves them. 

These revisions to the existing new 

source performance standards for 

NAPUs add monitoring requirements for 

future affected facilities. We have 

revised the ICR for the existing rule. 

These revisions to the new source 

performance standards for NAPUs for 

future affected facilities include a 

change to the emission limit and 

additional continuous monitoring 

requirements. The monitoring 

requirements include installing a 

continuous flow monitor and a dual 

span NOX concentration monitor, and 

monitoring the nitric acid production 

rate and concentration. These 

monitoring requirements are in addition 

to a CEMS for NOX concentration which 

is required under the current Subpart G. 

These requirements are based on 

specific requirements in Subpart Ga 

which are mandatory for all operators 

subject to NSPS. These recordkeeping 

and reporting requirements are 

specifically authorized by section 114 of 

the CAA (42 U.S.C. 7414). All 

information submitted to the EPA 

pursuant to the recordkeeping and 

reporting requirements for which a 

claim of confidentiality is made is 

safeguarded according to the EPA 

policies set forth in 40 CFR part 2, 

subpart B. 

When a malfunction occurs, sources 

must report them according to the 

applicable reporting requirements of 40 

CFR part 60, subpart Ga. An affirmative 

defense to civil penalties for violations 

of emission standard that are caused by 

malfunctions is available to a source if 

it can demonstrate that certain criteria 

and requirements are satisfied. The 

criteria ensure that the affirmative 

defense is available only where the 

event that causes a violation of the 

emission standard meets the narrow 

definition of malfunction in 40 CFR 60.2 

(sudden, infrequent, not reasonable 

preventable, and not caused by poor 

maintenance and or careless operation) 

and where the source took necessary 

actions to minimize emissions. In 

addition, the source must meet certain 

notification and reporting requirements. 

For example, the source must prepare a 

written root cause analysis and submit 

a written report to the Administrator 

documenting that it has met the 

conditions and requirements for 

assertion of the affirmative defense. 

For this rule, EPA is adding 

affirmative defense to the estimate of 

burden in the ICR. To provide the 

public with an estimate of the relative 

magnitude of the burden associated 

with an assertion of the affirmative 

defense position adopted by a source, 

the EPA has provided administrative 

adjustments to this ICR that shows what 

the notification, recordkeeping, and 

reporting requirements associated with 

the assertion of the affirmative defense 

might entail. The EPA’s estimate for the 

required notification, reports, and 

records, including the root cause 

analysis, associated with a single 

incident totals approximately $3,141, 

and is based on the time and effort 

required of a source to review relevant 

data, interview plant employees, and 

document the events surrounding a 

malfunction that has caused a violation 

of an emission standard. The estimate 

also includes time to produce and retain 

the record and reports for submission to 

the EPA. 

The EPA provides this illustrative 

estimate of this burden because these 

costs are only incurred if there has been 

a violation and a source chooses to take 

advantage of the affirmative defense. 

Given the variety of circumstances 

under which malfunctions could occur, 

as well as differences among sources’ 

operation and maintenance practices, 

we cannot reliably predict the severity 

and frequency of malfunction-related 

excess emissions events for a particular 

source. It is important to note that the 

EPA has no basis currently for 

estimating the number of malfunctions 

that would qualify for an affirmative 

defense. Current historical records 

would be an inappropriate basis, as 

source owners or operators previously 

operated their facilities in recognition 

that they were exempt from the 

requirement to comply with emissions 

standards during malfunctions. Of the 

number of violation events reported by 

source operators, only a small number 

would be expected to result from a 

malfunction (based on the definition 

above), and only a subset of violations 

caused by malfunctions would result in 

the source choosing to assert the 

affirmative defense. Thus, we believe 

the number of instances in which source 

operators might be expected to avail 

themselves of the affirmative defense 

will be extremely small. 

For this reason, we estimate no more 

than 2 such occurrences for all sources 

subject to 40 CFR part 60, subpart Ga 

over the 3-year period covered by this 

ICR. We expect to gather information on 

such events in the future, and will 

revise this estimate as better information 

becomes available. 

The annual burden for this 

information collection averaged over the 

first 3 years of this ICR is estimated to 

total 968 labor-hours per year at a cost 

of $91,800 per year. The annualized 

capital costs are estimated at $19,300 

per year. The annualized operation and 

maintenance (O&M) costs are $23,500. 

The total annualized capital and O&M 

costs are $42,800 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 the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act (RFA) as 

Amended by the Small Business 

Regulatory Enforcement Fairness Act 

(RFA) of 1996 (SBREFA), 5 U.S.C. 601 

et seq. 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s regulations at 13 CFR 

121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 


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enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this rule on small entities, I 

certify that this action will not have a 

significant economic impact on a 

substantial number of small entities. 

This certification is based on the 

economic impact of this action to all 

affected small entities. Only four small 

entities may be impacted by this rule. 

This is an estimate that may overstate 

small entity impacts in that we assume 

each existing small entity will have a 

new source subject to this rule, which 

is unlikely. We estimate that all affected 

small entities will have annualized costs 

of less than 0.2 percent of their sales. 

For more information on the small 

entity impacts associated with this rule, 

please refer to the Economic Impact and 

Small Business Analyses in the public 

docket. Although this rule would not 

have a significant economic impact on 

a substantial number of small entities, 

the EPA nonetheless tried to reduce the 

impact of this rule on small entities. 

When developing the revised standards, 

the EPA took special steps to ensure that 

the burdens imposed on small entities 

were minimal. The EPA conducted 

several meetings with industry trade 

associations to discuss regulatory 

options and the corresponding burden 

on industry, such as recordkeeping and 

reporting. 

D. Unfunded Mandates Reform Act 

This rule does not contain a federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments, in the aggregate, 

or to the private sector in any one year. 

This rule is not expected to impact state, 

local, or tribal governments. The 

nationwide annualized cost of this rule 

for affected industrial sources is 

$585,000/yr. Thus, this rule is not 

subject to the requirements of sections 

202 and 205 of the Unfunded Mandates 

Reform Act (UMRA). 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

rule will not apply to such governments 

and will not impose any obligations 

upon them. 

E. Executive Order 13132, Federalism 

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 

levels of government, as specified in 

Executive Order 13132. Nitric acid 

plants are privately owned companies 

and there will be no direct impact on 

states and other federal offices. Thus, 

Executive Order 13132 does not apply 

to this rule. In the spirit of Executive 

Order 13132, and consistent with the 

EPA policy to promote communications 

between the EPA and state and local 

governments, the EPA specifically 

solicited comment on this rule from 

state and local officials. 

F. Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It will not have substantial direct 

effects on tribal governments, on the 

relationship between the federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the federal 

government and Indian tribes, as 

specified in Executive Order 13175. 

This rule imposes requirements on 

owners and operators of NAPUs and not 

tribal governments. We do not know of 

any NAPUs owned or operated by 

Indian tribal governments. However, if 

there are any, the effect of this rule on 

communities of tribal governments 

would not be unique or 

disproportionate to the effect on other 

communities. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 (62 F.R. 19885, April 22, 1997) as 

applying to those regulatory actions that 

concern health or safety risks, such that 

the analysis required under section 5– 

501 of the Executive Order has the 

potential to influence the regulation. 

This action is not subject to Executive 

Order 13045 because it is based solely 

on technology performance. 

Nevertheless, this action will result in 

reductions in NOX emissions which will 

provide some increased protection of 

health for people of all ages including 

children. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not likely to have 

a significant adverse energy effect on the 

supply, distribution, or use of energy. 

This action will not create any new 

requirements for sources in the energy 

supply, distribution, or use sectors. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113 (15 U.S.C. 272 note), directs 

the EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, business practices) that are 

developed or adopted by voluntary 

consensus standards bodies. NTTAA 

directs the EPA to provide Congress, 

through OMB, explanations when the 

Agency decides not to use available and 

applicable VCS. 

This final rulemaking involves 

technical standards. The EPA is using 

the following: ASTM D6348–03, 

Standard Test Method for Determination 

of Gaseous Compounds by Extractive 

Direct Interface Fourier Transform 

Infrared (FTIR) Spectroscopy, and 

ASTM E1584–11, Standard Test Method 

for Assay of Nitric Acid, which have 

been incorporated by reference. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 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 identifying 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 United States. 

The EPA has determined that this 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. The 

EPA has also determined that a 

proximity-based demographic study 

comparing populations in closest 

proximity to the regulated sources to the 


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general population is not appropriate for 

this rulemaking due to lack of pollutants 

with localized effects. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801, et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that, before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this final rule 

and other required information to the 

United States Senate, the United States 

House of Representatives, and the 

Comptroller General of the United 

States prior to publication of the final 

rule in the Federal Register. A major 

rule cannot take effect until 60 days 

after it is published in the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). The 

final rules will be effective on August 

14, 2012. 

List of Subjects in 40 CFR Part 60 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Incorporation by 

reference, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

Dated: May 14, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is amended as 

follows: 

PART 60—[AMENDED] 

■ 1. The authority citation for part 60 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart A—[Amended] 

■ 2. Section 60.17 is amended by 

revising paragraph (a)(82), adding and 

reserving paragraphs (a)(97) and (a)(98), 

and adding paragraph (a)(99) to read as 

follows: 

§ 60.17 Incorporations by reference. 

* * * * * 

(a) * * * 

(82) ASTM D6348–03, Standard Test 

Method for Determination of Gaseous 

Compounds by Extractive Direct 

Interface Fourier Transform Infrared 

(FTIR) Spectroscopy, approved October 

1, 2003, IBR approved for § 60.73a(b) of 

subpart Ga of this part, table 7 of 

subpart IIII of this part, and table 2 of 

subpart JJJJ of this part. 

* * * * * 

(99) ASTM E1584–11, Standard Test 

Method for Assay of Nitric Acid, 

approved August 1, 2011, IBR approved 

for § 60.73a(c) of subpart Ga of this part. 

* * * * * 

■ 3. Section 60.70 is amended by 

revising paragraph (b) to read as follows: 

§ 60.70 Applicability and designation of 

affected facility. 

* * * * * 

(b) Any facility under paragraph (a) of 

this section that commences 

construction or modification after 

August 17, 1971, and on or before 

October 14, 2011 is subject to the 

requirements of this subpart. Any 

facility that commences construction or 

modification after October 14, 2011 is 

subject to subpart Ga of this part. 

■ 4. Add Subpart Ga to read as follows: 

Subpart Ga—Standards of Performance for 

Nitric Acid Plants for Which Construction, 

Reconstruction, or Modification 

Commenced After October 14, 2011 

Sec. 

60.70a Applicability and designation of 

affected facility. 

60.71a Definitions. 

60.72a Standards. 

60.73a Emissions testing and monitoring. 

60.74a Affirmative defense for violations of 

emission standards during malfunction. 

60.75a Calculations. 

60.76a Recordkeeping. 

60.77a Reporting. 

Subpart Ga—Standards of 

Performance for Nitric Acid Plants for 

Which Construction, Reconstruction, 

or Modification Commenced After 

October 14, 2011 

§ 60.70a Applicability and designation of 

affected facility. 

(a) The provisions of this subpart are 

applicable to each nitric acid 

production unit, which is the affected 

facility. 

(b) This subpart applies to any nitric 

acid production unit that commences 

construction or modification after 

October 14, 2011. 

§ 60.71a Definitions. 

As used in this subpart, all terms not 

defined herein shall have the meaning 

given them in the Act and in subpart A 

of this part. 

Affirmative defense means, in the 

context of an enforcement proceeding, a 

response or defense put forward by a 

defendant, regarding which the 

defendant has the burden of proof, and 

the merits of which are independently 

and objectively evaluated in a judicial 

or administrative proceeding. 

Monitoring system malfunction means 

a sudden, infrequent, not reasonably 

preventable failure of the monitoring 

system to provide valid data. 

Monitoring system failures that are 

caused in part by poor maintenance or 

careless operation are not malfunctions. 

You are required to implement 

monitoring system repairs in response 

to monitoring system malfunctions or 

out-of-control periods, and to return the 

monitoring system to operation as 

expeditiously as practicable. 

Nitric acid production unit means any 

facility producing weak nitric acid by 

either the pressure or atmospheric 

pressure process. 

Operating day means a 24-hour 

period beginning at 12:00 a.m. during 

which the nitric acid production unit 

operated at any time during this period. 

Weak nitric acid means acid which is 

30 to 70 percent in strength. 

§ 60.72a Standards. 

Nitrogen oxides. On and after the date 

on which the performance test required 

to be conducted by § 60.73a(e) is 

completed, you may not discharge into 

the atmosphere from any affected 

facility any gases which contain NOX, 

expressed as NO2, in excess of 0.50 

pounds (lb) per ton of nitric acid 

produced, as a 30-day emission rate 

calculated based on 30 consecutive 

operating days, the production being 

expressed as 100 percent nitric acid. 

The emission standard applies at all 

times. 

§ 60.73a Emissions testing and 

monitoring. 

(a) General emissions monitoring 

requirements. You must install and 

operate a NOX concentration (ppmv) 

continuous emissions monitoring 

system (CEMS). You must also install 

and operate a stack gas flow rate 

monitoring system. With measurements 

of stack gas NOX concentration and 

stack gas flow rate, you will determine 

hourly NOX emissions rate (e.g., lb/hr) 

and with measured data of the hourly 

nitric acid production (tons), calculate 

emissions in units of the applicable 

emissions limit (lb/ton of 100 percent 

acid produced). You must operate the 

monitoring system and report emissions 

during all operating periods including 

unit startup and shutdown, and 

malfunction. 

(b) Nitrogen oxides concentration 

continuous emissions monitoring 

system. (1) You must install, calibrate, 

maintain, and operate a CEMS for 

measuring and recording the 

concentration of NOX emissions in 

accordance with the provisions of 

§ 60.13 and Performance Specification 2 


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of Appendix B and Procedure 1 of 

Appendix F of this part. You must use 

cylinder gas audits to fulfill the 

quarterly auditing requirement at 

section 5.1 of Procedure 1 of Appendix 

F of this part for the NOX concentration 

CEMS. 

(2) For the NOX concentration CEMS, 

use a span value, as defined in 

Performance Specification 2, section 

3.11, of Appendix B of this part, of 500 

ppmv (as NO2). If you emit NOX at 

concentrations higher than 600 ppmv 

(e.g., during startup or shutdown 

periods), you must apply a second 

CEMS or dual range CEMS and a second 

span value equal to 125 percent of the 

maximum estimated NOX emission 

concentration to apply to the second 

CEMS or to the higher of the dual 

analyzer ranges during such periods. 

(3) For conducting the relative 

accuracy test audits, per Performance 

Specification 2, section 8.4, of 

Appendix B of this part and Procedure 

1, section 5.1.1, of Appendix F of this 

part, use either EPA Reference Method 

7, 7A, 7C, 7D, or 7E of Appendix A–4 

of this part; EPA Reference Method 320 

of Appendix A of part 63 of this chapter; 

or ASTM D6348–03 (incorporated by 

reference, see § 60.17). To verify the 

operation of the second CEMS or the 

higher range of a dual analyzer CEMS 

described in paragraph (b)(2) of this 

section, you need not conduct a relative 

accuracy test audit but only the 

calibration drift test initially (found in 

Performance Specification 2, section 

8.3.1, of Appendix B of this part) and 

the cylinder gas audit thereafter (found 

in Procedure 1, section 5.1.2, of 

Appendix F of this part). 

(4) If you use EPA Reference Method 

7E of Appendix A–4 of this part, you 

must mitigate loss of NO2 in water 

according to the requirements in 

paragraphs (b)(4)(i), (ii), or (iii) of this 

section and verify performance by 

conducting the system bias checks 

required in EPA Reference Method 7E, 

section 8, of Appendix A–4 of this part 

according to (b)(4)(iv) of this section, or 

follow the dynamic spike procedure 

according to paragraph (b)(4)(v) of this 

section. 

(i) For a wet-basis measurement 

system, you must measure and report 

temperature of sample line and 

components (up to analyzer inlet) to 

demonstrate that the temperatures 

remain above the sample gas dew point 

at all times during the sampling. 

(ii) You may use a dilution probe to 

reduce the dew point of the sample gas. 

(iii) You may use a refrigerated-type 

condenser or similar device (e.g., 

permeation dryer) to remove condensate 

continuously from sample gas while 

maintaining minimal contact between 

condensate and sample gas. 

(iv) If your analyzer measures nitric 

oxide (NO) and nitrogen dioxide (NO2) 

separately, you must use both NO and 

NO2 calibration gases. Otherwise, you 

must substitute NO2 calibration gas for 

NO calibration gas in the performance of 

system bias checks. 

(v) You must conduct dynamic 

spiking according to EPA Reference 

Method 7E, section 16.1, of Appendix 

A–4 of this part using NO2 as the spike 

gas. 

(5) Instead of a NOX concentration 

CEMS meeting Performance 

Specification 2, you may apply an FTIR 

CEMS meeting the requirements of 

Performance Specification 15 of 

Appendix B of this part to measure NOX

concentrations. Should you use an FTIR 

CEMS, you must replace the Relative 

Accuracy Test Audit requirements of 

Procedure 1 of appendix F of this part 

with the validation requirements and 

criteria of Performance Specification 15, 

sections 11.1.1 and 12.0, of Appendix B 

of this part. 

(c) Determining NOX mass emissions 

rate values. You must use the NOX

concentration CEMS, acid production, 

gas flow rate monitor and other 

monitoring data to calculate emissions 

data in units of the applicable limit (lb 

NOX/ton of acid produced expressed as 

100 percent nitric acid). 

(1) You must install, calibrate, 

maintain, and operate a CEMS for 

measuring and recording the stack gas 

flow rates to use in combination with 

data from the CEMS for measuring 

emissions concentrations of NOX to 

produce data in units of mass rate (e.g., 

lb/hr) of NOX on an hourly basis. You 

will operate and certify the continuous 

emissions rate monitoring system 

(CERMS) in accordance with the 

provisions of § 60.13 and Performance 

Specification 6 of Appendix B of this 

part. You must comply with the 

following provisions in (c)(1)(i) through 

(iii) of this section. 

(i) You must use a stack gas flow rate 

sensor with a full scale output of at least 

125 percent of the maximum expected 

exhaust volumetric flow rate (see 

Performance Specification 6, section 8, 

of Appendix B of this part). 

(ii) For conducting the relative 

accuracy test audits, per Performance 

Specification 6, section 8.2 of Appendix 

B of this part and Procedure 1, section 

5.1.1, of Appendix F of this part, you 

must use either EPA Reference Method 

2, 2F, or 2G of Appendix A–4 of this 

part. You may also apply Method 2H in 

conjunction with other velocity 

measurements. 

(iii) You must verify that the CERMS 

complies with the quality assurance 

requirements in Procedure 1 of 

Appendix F of this part. You must 

conduct relative accuracy testing to 

provide for calculating the relative 

accuracy for RATA and RAA 

determinations in units of lb/hour. 

(2) You must determine the nitric acid 

production parameters (production rate 

and concentration) by installing, 

calibrating, maintaining, and operating a 

permanent monitoring system (e.g., 

weigh scale, volume flow meter, mass 

flow meter, tank volume) to measure 

and record the weight rates of nitric acid 

produced in tons per hour. If your nitric 

acid production rate measurements are 

for periods longer than hourly (e.g., 

daily values), you will determine 

average hourly production values, tons 

acid/hr, by dividing the total acid 

production by the number of hours of 

process operation for the subject 

measurement period. You must comply 

with the following provisions in (c)(2)(i) 

through (iv) of this section. 

(i) You must verify that each 

component of the monitoring system 

has an accuracy and precision of no 

more than ±5 percent of full scale. 

(ii) You must analyze product 

concentration via titration or by 

determining the temperature and 

specific gravity of the nitric acid. You 

may also use ASTM E1584–11 

(incorporated by reference, see § 60.17), 

for determining the concentration of 

nitric acid in percent. You must 

determine product concentration daily. 

(iii) You must use the acid 

concentration to express the nitric acid 

production as 100 percent nitric acid. 

(iv) You must record the nitric acid 

production, expressed as 100 percent 

nitric acid, and the hours of operation. 

(3) You must calculate hourly NOX

emissions rates in units of the standard 

(lb/ton acid) for each hour of process 

operation. For process operating periods 

for which there is little or no acid 

production (e.g., startup or shutdown), 

you must use the average hourly acid 

production rate determined from the 

data collected over the previous 30 days 

of normal acid production periods (see 

§ 60.75a). 

(d) Continuous monitoring system. 

For each continuous monitoring system, 

including NOX concentration 

measurement, volumetric flow rate 

measurement, and nitric acid 

production measurement equipment, 

you must meet the requirements in 

paragraphs (d)(1) through (3) of this 

section. 

(1) You must operate the monitoring 

system and collect data at all required 

intervals at all times the affected facility 


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is operating except for periods of 

monitoring system malfunctions or outof-control periods as defined in 

Appendix F, sections 4 and 5, of this 

part, repairs associated with monitoring 

system malfunctions or out-of-control 

periods, and required monitoring 

system quality assurance or quality 

control activities including, as 

applicable, calibration checks and 

required zero and span adjustments. 

(2) You may not use data recorded 

during monitoring system malfunctions 

or out-of-control periods, repairs 

associated with monitoring system 

malfunctions or out-of-control periods, 

or required monitoring system quality 

assurance or control activities in 

calculations used to report emissions or 

operating levels. You must use all the 

data collected during all other periods 

in calculating emissions and the status 

of compliance with the applicable 

emissions limit in accordance with 

§ 60.72a(a). 

(e) Initial performance testing. You 

must conduct an initial performance test 

to demonstrate compliance with the 

NOX emissions limit under § 60.72a(a) 

beginning in the calendar month 

following initial certification of the NOX

and flow rate monitoring CEMS. The 

initial performance test consists of 

collection of hourly NOX average 

concentration, mass flow rate recorded 

with the certified NOX concentration 

and flow rate CEMS and the 

corresponding acid generation (tons) 

data for all of the hours of operation for 

the first 30 days beginning on the first 

day of the first month following 

completion of the CEMS installation 

and certification as described above. 

You must assure that the CERMS meets 

all of the data quality assurance 

requirements as per § 60.13 and 

Appendix F, Procedure 1, of this part 

and you must use the data from the 

CERMS for this compliance 

determination. 

§ 60.74a Affirmative defense for violations 

of emission standards during malfunction. 

In response to an action to enforce the 

standards set forth in § 60.72a, you may 

assert an affirmative defense to a claim 

for civil penalties for violations of such 

standards that are caused by 

malfunction, as defined at 40 CFR 60.2. 

Appropriate penalties may be assessed, 

however, if you fail to meet your burden 

of proving all of the requirements in the 

affirmative defense. The affirmative 

defense shall not be available for claims 

for injunctive relief. 

(a) To establish the affirmative 

defense in any action to enforce such a 

standard, you must timely meet the 

reporting requirements in paragraph (b) 

of this section, and must prove by a 

preponderance of evidence that: 

(1) The violation: 

(i) Was caused by a sudden, 

infrequent, and unavoidable failure of 

air pollution control equipment, process 

equipment, or a process to operate in a 

normal or usual manner; and 

(ii) Could not have been prevented 

through careful planning, proper design 

or better operation and maintenance 

practices; and 

(iii) Did not stem from any activity or 

event that could have been foreseen and 

avoided, or planned for; and 

(iv) Was not part of a recurring pattern 

indicative of inadequate design, 

operation, or maintenance; and 

(2) Repairs were made as 

expeditiously as possible when a 

violation occurred. Off-shift and 

overtime labor were used, to the extent 

practicable to make these repairs; and 

(3) The frequency, amount, and 

duration of the violation (including any 

bypass) were minimized to the 

maximum extent practicable; and 

(4) If the violation resulted from a 

bypass of control equipment or a 

process, then the bypass was 

unavoidable to prevent loss of life, 

personal injury, or severe property 

damage; and 

(5) All possible steps were taken to 

minimize the impact of the violation on 

ambient air quality, the environment, 

and human health; and 

(6) All emissions monitoring and 

control systems were kept in operation 

if at all possible, consistent with safety 

and good air pollution control practices; 

and 

(7) All of the actions in response to 

the violation were documented by 

properly signed, contemporaneous 

operating logs; and 

(8) At all times, the affected facility 

was operated in a manner consistent 

with good practices for minimizing 

emissions; and 

(9) A written root cause analysis has 

been prepared, the purpose of which is 

to determine, correct, and eliminate the 

primary causes of the malfunction and 

the violation resulting from the 

malfunction event at issue. The analysis 

shall also specify, using best monitoring 

methods and engineering judgment, the 

amount of any emissions that were the 

result of the malfunction. 

(b) Report. The owner or operator 

seeking to assert an affirmative defense 

shall submit a written report to the 

Administrator with all necessary 

supporting documentation, that it has 

met the requirements set forth in 

paragraph (a) of this section. This 

affirmative defense report shall be 

included in the first periodic 

compliance, deviation report or excess 

emission report otherwise required after 

the initial occurrence of the violation of 

the relevant standard (which may be the 

end of any applicable averaging period). 

If such compliance, deviation report or 

excess emission report is due less than 

45 days after the initial occurrence of 

the violation, the affirmative defense 

report may be included in the second 

compliance, deviation report or excess 

emission report due after the initial 

occurrence of the violation of the 

relevant standard. 

§ 60.75a Calculations. 

(a) You must calculate the 30 

operating day rolling arithmetic average 

emissions rate in units of the applicable 

emissions standard (lb NOX/ton 100 

percent acid produced) at the end of 

each operating day using all of the 

quality assured hourly average CEMS 

data for the previous 30 operating days. 

(b) You must calculate the 30 

operating day average emissions rate 

according to Equation 1: 

Where: 

E30 = 30 operating day average emissions rate 

of NOX, lb NOX/ton of 100 percent 

HNO3; 

Ci = concentration of NOX for hour i, ppmv; 

Qi = volumetric flow rate of effluent gas for 

hour i, where Ci and Qi are on the same 

basis (either wet or dry), scf/hr; 

Pi = total acid produced during production 

hour i, tons 100 percent HNO3; 

k = conversion factor, 1.194 × 10–7 for NOX; 

and 

n = number of operating hours in the 30 

operating day period, i.e., n is between 

30 and 720. 

§ 60.76a Recordkeeping. 

(a) For the NOX emissions rate, you 

must keep records for and results of the 

performance evaluations of the 

continuous emissions monitoring 

systems. 

(b) You must maintain records of the 

following information for each 30 

operating day period: 

(1) Hours of operation. 

(2) Production rate of nitric acid, 

expressed as 100 percent nitric acid. 

(3) 30 operating day average NOX

emissions rate values. 

(c) You must maintain records of the 

following time periods: 

(1) Times when you were not in 

compliance with the emissions 

standards. 

(2) Times when the pollutant 

concentration exceeded full span of the 

NOX monitoring equipment. 

(3) Times when the volumetric flow 

rate exceeded the high value of the 


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volumetric flow rate monitoring 

equipment. 

(d) You must maintain records of the 

reasons for any periods of 

noncompliance and description of 

corrective actions taken. 

(e) You must maintain records of any 

modifications to CEMS which could 

affect the ability of the CEMS to comply 

with applicable performance 

specifications. 

(f) For each malfunction, you must 

maintain records of the following 

information: 

(1) Records of the occurrence and 

duration of each malfunction of 

operation (i.e., process equipment) or 

the air pollution control and monitoring 

equipment. 

(2) Records of actions taken during 

periods of malfunction to minimize 

emissions in accordance with § 60.11(d), 

including corrective actions to restore 

malfunctioning process and air 

pollution control and monitoring 

equipment to its normal or usual 

manner of operation. 

§ 60.77a Reporting. 

(a) The performance test data from the 

initial and subsequent performance tests 

and from the performance evaluations of 

the continuous monitors must be 

submitted to the Administrator at the 

appropriate address as shown in 40 CFR 

60.4. 

(b) The following information must be 

reported to the Administrator for each 

30 operating day period where you were 

not in compliance with the emissions 

standard: 

(1) Time period; 

(2) NOX emission rates (lb/ton of acid 

produced); 

(3) Reasons for noncompliance with 

the emissions standard; and 

(4) Description of corrective actions 

taken. 

(c) You must also report the following 

whenever they occur: 

(1) Times when the pollutant 

concentration exceeded full span of the 

NOX pollutant monitoring equipment. 

(2) Times when the volumetric flow 

rate exceeded the high value of the 

volumetric flow rate monitoring 

equipment. 

(d) You must report any modifications 

to CERMS which could affect the ability 

of the CERMS to comply with 

applicable performance specifications. 

(e) Within 60 days of completion of 

the relative accuracy test audit (RATA) 

required by this subpart, you must 

submit the data from that audit to EPA’s 

WebFIRE database by using the 

Compliance and Emissions Data 

Reporting Interface (CEDRI) that is 

accessed through EPA’s Central Data 

Exchange (CDX) (https://cdx.epa.gov/ 

SSL/cdx/EPA_Home.asp). You must 

submit performance test data in the file 

format generated through use of EPA’s 

Electronic Reporting Tool (ERT) 

(http://www.epa.gov/ttn/chief/ert/ 

index.html). Only data collected using 

test methods listed on the ERT Web site 

are subject to this requirement for 

submitting reports electronically to 

WebFIRE. Owners or operators who 

claim that some of the information being 

submitted for performance tests is 

confidential business information (CBI) 

must submit a complete ERT file 

including information claimed to be CBI 

on a compact disk or other commonly 

used electronic storage media 

(including, but not limited to, flash 

drives) by registered letter to EPA and 

the same ERT file with the CBI omitted 

to EPA via CDX as described earlier in 

this paragraph. Mark the compact disk 

or other commonly used electronic 

storage media clearly as CBI and mail to 

U.S. EPA/OAPQS/CORE CBI Office, 

Attention: WebFIRE Administrator, MD 

C404–02, 4930 Old Page Rd., Durham, 

NC 27703. At the discretion of the 

delegated authority, you must also 

submit these reports to the delegated 

authority in the format specified by the 

delegated authority. You must submit 

the other information as required in the 

performance evaluation as described in 

§ 60.2 and as required in this chapter. 

(f) If a malfunction occurred during 

the reporting period, you must submit a 

report that contains the following: 

(1) The number, duration, and a brief 

description for each type of malfunction 

which occurred during the reporting 

period and which caused or may have 

caused any applicable emission 

limitation to be exceeded. 

(2) A description of actions taken by 

an owner or operator during a 

malfunction of an affected facility to 

minimize emissions in accordance with 

§ 60.11(d), including actions taken to 

correct a malfunction. 

[FR Doc. 2012–19691 Filed 8–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 51 

[WC Docket Nos. 10–90, 07–135, 05–337, 

03–109; GN Docket No. 09–51; CC Docket 

Nos. 01–92, 96–45; WT Docket No. 10–208; 

DA 12–870] 

Connect America Fund; A National 

Broadband Plan for Our Future; 

Establishing Just and Reasonable 

Rates for Local Exchange Carriers; 

High-Cost Universal Service Support 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission revises 

and clarifies certain provisions of its 

rules relating to the transition of 

intrastate switched access rates and the 

operation of the transitional recovery 

mechanism that were adopted in the 

USF/ICC Transformation Order. The 

Commission also grants a number of 

limited waivers of the Commission’s 

rules to address administrative concerns 

and rule inconsistencies. 

DATES: Effective September 13, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Belinda Nixon, Wireline Competition 

Bureau, (202) 418–1520. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Wireline Competition 

Bureau’s Order in WC Docket Nos. 10– 

90, 07–135, 05–337, 03–109; GN Docket 

No. 09–51; CC Docket Nos. 01–92, 96– 

45; WT Docket No. 10–208; DA 12–870, 

released on June 5, 2012. The full text 

of this document is available for public 

inspection during regular business 

hours in the FCC Reference Center, 

Room CY–A257, 445 12th Street SW., 

Washington, DC 20554, and at the 

following Internet address: http:// 

transition.fcc.gov/Daily_Releases/ 

Daily_Business/2012/db0425/FCC-12- 

47A1.pdf. The complete text may be 

purchased from the Commission’s 

duplicating contractor, Best Copy and 

Printing, Inc. (BCPI), Portals II, 445 12th 

Street SW., Room CY–B402, 

Washington, DC 20554, (202) 488–5300, 

facsimile (202) 488–5563, or via email at 

fcc@bcpiweb.com. 

I. Introduction 

1. In the USF/ICC Transformation 

Order, the Commission delegated to the 

Wireline Competition Bureau (Bureau) 

the authority to revise and clarify rules 

as necessary to ensure that the reforms 

adopted in the USF/ICC Transformation 

Order are properly reflected in the rules. 

In this Order, the Bureau acts pursuant 

to this delegated authority to revise and 


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