March 5, 2012

Administrator Lisa Jackson

Office of the Administrator

U.S. Environmental Protection Agency

Room 3000

Ariel Rios Building

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

(Jackson.Lisa@epa.gov)

Associate General Counsel for the Air and Radiation Law Office

Office of General Counsel

Mail Code 2344A

U.S. EPA

1200 Pennsylvania Ave., NW

Washington, DC 20460

Nathan Topham

Office of Air Quality Planning and Standards

Sector Policies and Programs Division

U.S. EPA

Research Triangle Park, NC 27711

(Topham.Nathan@epa.gov)

BY FIRST CLASS MAIL AND EMAIL

Re: Petition for Reconsideration of National Emissions Standards for Hazardous Air 

Pollutant Emissions From Secondary Lead Smelting, 77 Fed. Reg. 556 (Jan. 5, 2012), 

Dkt. ID No. EPA-HQ-OAR-2011-0344

Dear Administrator Jackson and Assistant Administrator McCarthy:

This is a petition for reconsideration under Clean Air Act § 307(d)(7)(B), 42 U.S.C. § 

7607(d)(7)(B). The parties submitting this petition are Sierra Club (85 Second Street, Second 

Floor, San Francisco, California 94105; Telephone: (415) 977-5500), California Communities 

Against Toxics (P.O. Box 845, Rosamond, CA 93560); Frisco Unleaded (P.O. Box 5661, Frisco, 

TX, 75035); Missouri Coalition for the Environment Foundation (6267 Delmar Blvd., Suite 2E, St. 

Louis, Missouri 63130; Telephone: (314) 727-0600), and Natural Resources Defense Council (40 

West 20th Street, New York, NY 10011; Telephone: (415) 875-6100). By this petition, these 
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Petitioners respectfully request that EPA reconsider certain aspects of the final action taken at 77 

Fed. Reg. 556 (Jan. 5, 2012), and entitled National Emissions Standards for Hazardous Air 

Pollutant Emissions From Secondary Lead Smelting; Final Rule. 

EPA changed important elements of this rule from the proposal to final stage and 

provided new explanations for its methodology in the response to comments. Petitioners 

submit this petition to raise objections to certain substantive rule changes and to EPA’s new 

explanations which were impracticable to raise before the comment period closed and which 

are of central relevance to the final rule. Petitioners urge EPA to take action on reconsideration 

that strengthens protection for the people most exposed to and most affected by the toxic air 

pollution from this source category.

TABLE OF CONTENTS

I. EPA MUST RECONSIDER THE RESIDUAL RISK STANDARDS FOR PROCESS 

VENTS AND SET STRONGER STANDARDS BY SATISFYING SECTION 112(F) 

RATHER THAN JUST RELYING ON THE NAAQS FOR LEAD. ........................... 3

A. Background.......................................................................................................... 3

B. Grounds for Objection........................................................................................ 4

1. EPA’s reliance on the NAAQS alone to set residual risk emission 

standards for lead fails to satisfy section 112(f)(2). ........................... 5

i. EPA has failed to justify its decision to use the NAAQS 

alone to achieve ‚acceptable‛ risk from lead........................ 5

ii. EPA has failed to rationally justify its decision not to 

require greater protection for health than is provided by 

the NAAQS at the ‚ample margin‛ stage. .......................... 12

2. EPA failed to provide an ‚ample margin of safety to protect public 

health‛ from the combined impact of all pollutants emitted by this 

source category..................................................................................... 16

II. EPA MUST RECONSIDER THE EXEMPTIONS FROM THE ENCLOSURE 

STANDARDS. ................................................................................................................ 18

A. Background........................................................................................................ 18

B. Grounds for Objection...................................................................................... 19
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1. The enclosure exemptions are unlawful under section 112(f)(2). . 19

2. The enclosure exemptions are unlawful under section 112(d)(6). 20

3. The enclosure exemptions are unlawful because they cause the 

process vent standards not to be ‚continuous,‛ as required......... 21

III. EPA MUST RECONSIDER THE MONITORING EXEMPTIONS. ......................... 21

A. Background........................................................................................................ 21

B. Grounds for Objection...................................................................................... 22

IV. EPA MUST RECONSIDER THE CHANGES MADE TO THE PROPOSED WORK 

PRACTICE STANDARDS AND SET STRONGER STANDARDS. ........................ 24

A. Background........................................................................................................ 24

B. Grounds for Objection...................................................................................... 24

1. Accidental release standards.............................................................. 24

2. Requirement to inspect and move broken batteries. ...................... 25

3. Paved-road exemption........................................................................ 26

4. Transport enclosure............................................................................. 26

V. EPA MUST RECONSIDER THE AUTOMOTIVE BATTERIES-ONLY 

STANDARD. .................................................................................................................. 26

CONCLUSION......................................................................................................................................... 27

* * *

I. EPA MUST RECONSIDER THE RESIDUAL RISK STANDARDS FOR PROCESS VENTS 

AND SET STRONGER STANDARDS BY SATISFYING SECTION 112(F) RATHER 

THAN JUST RELYING ON THE NAAQS FOR LEAD.

A. Background

EPA made significant changes from the proposal to the final rule. 76 Fed. Reg. 29,032, 

29,055-56 (May 19, 2011); 77 Fed. Reg. at 562-65; see Proposed to Final Rule Redline (Dkt). 
4

In taking this action, EPA also released a detailed ‚response to comments‛ document 

that provided new reasoning for its reliance on the NAAQS that EPA had not included in the 

proposed rule. Compare 76 Fed. Reg. at 29,041-42, with 77 Fed. Reg. at 565 and Summary of 

Public Comments and Responses at 66-74 (Nov. 4, 2011) (‚Summary‛). Although EPA 

appropriately explained in the proposal why exceedances of the NAAQS provide evidence of 

unacceptable risk, EPA did not provide a reasoned explanation of why the NAAQS could be 

treated as equivalent to ‚acceptable‛ risk, under section 112. At proposal, EPA simply repeated 

the arguments for why the agency had chosen the NAAQS to reflect an ‚adequate margin of 

safety to protect public health‛ under section 109 during the 2008 rulemaking. 76 Fed. Reg. at 

29,041-42, 29,055. At proposal, EPA gave no reasoned explanation for why it would achieve 

‚acceptable‛ risk to reduce lead emissions to the level of the NAAQS (which provides an 

‚adequate margin of safety‛), rather than going farther. EPA also gave no health-based 

explanation for why it could decide that simply achieving that ‚adequate margin‛ standard 

would provide an ‚ample margin of safety.‛ 

At proposal, EPA did not state that the Lead NAAQS is ‚the measure of risk 

acceptability for exposure to air-borne lead in this rule.‛ 77 Fed. Reg. at 563. It now states that 

it is only considering the NAAQS ‚in determining which lead risks from air-borne lead from 

secondary lead smelters are acceptable or unacceptable.‛ Summary at 73. This is a new 

argument. Compare with 76 Fed. Reg. at 29,055, 29,058. EPA also provided further new 

arguments on issues discussed below. See, e.g., Summary at 69, 71, 73. EPA concludes that it 

need do no more to control lead emissions from this source category because ‚we did not 

identify any additional controls beyond those that would need to be implemented to ensure an 

acceptable level of risk with an ample margin of safety,‛ and that the agency ‚disagrees . . . that 

section 112(f)(2) standards must be more stringent than a primary NAAQS as a matter of law.‛ 

Id.

Therefore, EPA provided new arguments for its decision to base standards on the 

NAAQS in its response to comments summary. Because of these changes, it was impracticable 

for Petitioners to raise each of the following objections during the comment period. Thus, 

section 307(d)(7)(B), 42 U.S.C. § 7607(d)(7)(B), requires EPA to grant reconsideration on this 

issue. 

B. Grounds for Objection

Under section 112(f), EPA must first assess the health risk created by toxic air emissions 

from a source category which remains once an existing MACT standard is in place and 

determine whether this risk is ‚acceptable‛ or not. NRDC v. EPA, 824 F.2d 1146, 1164 (D.C. Cir. 

1987) (vinyl chloride decision). If health risk is unacceptable, EPA must set a standard to 
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prevent unacceptable risk. Then, EPA is required to consider whether further health risk and 

emission reductions are needed to provide an additional, ‚ample margin of safety to protect 

public health,‛ in view of scientific uncertainty regarding its own risk assessment. Id. at 1165; 

42 U.S.C. § 7412(f)(2). 

EPA failed to satisfy section 112(f)(2) because it relied on the Lead NAAQS at both 

stages of this analysis to choose the level of the lead emissions standard. Summary at 73. As a 

result, EPA set process vent standards that (it predicts) will simply achieve compliance with the 

NAAQS. EPA did not assess whether it was necessary in terms of health to go beyond the 

NAAQS and set a more protective limit. Instead of making its decision regarding what lead 

emissions limit to set just based on the NAAQS, EPA is required to perform a full residual risk 

assessment and then satisfy the section 112(f)(2) test to ensure an ‚ample margin of safety to 

protect public health,‛ 42 U.S.C. § 7412(f)(2). EPA must perform a full risk assessment in order 

to compare and consider the full cumulative burden of health risk created by all HAP emissions 

from the source category. 

1. EPA’s reliance on the NAAQS alone to set residual risk emission 

standards for lead fails to satisfy section 112(f)(2).

Regardless of whether EPA considers cost at the ample margin stage, EPA may not 

lawfully rely solely on the NAAQS, which provides an ‚adequate margin of safety‛ in the 

ambient air under section 109 to set residual risk emission standards under section 112, which 

are required to provide an ‚ample margin of safety to protect public health‛ from lead. First, 

the plain text of section 112(f)(2) requires EPA to engage in an analysis of health risk that does 

not merely rely on the NAAQS. Second, the record shows that it is arbitrary and capricious for 

EPA not to require greater protection than the NAAQS. As discussed below, the term ‚ample‛

means more than adequate, which indicates Congress required something beyond section 109. 

Section 112(f) standards must protect not only the most sensitive sub-population, but the most 

sensitive individual who is the ‚individual most exposed.‛ 42 U.S.C. § 7412(f)(2). Section 

112(f)(2) sets a different test and EPA may not simply assume that an emission standard set 

based on the NAAQS is sufficient to satisfy section 112(f). 

i. EPA has failed to justify its decision to use the NAAQS alone to 

achieve ‚acceptable‛ risk from lead.

(a) ‚Adequate‛ is not necessarily the same as ‚acceptable.‛

EPA has failed to explain how the term ‚adequate‛ under section 109 can be equated 

with ‚acceptable,‛ as stated in the response to comments Summary. While the question of 

what is ‚adequate‛ may in certain circumstances inform what is ‚acceptable,‛ EPA has failed to 
6

explain why its sole reliance on the NAAQS is sufficient to protect against ‚acceptable‛ risk 

from secondary lead smelters. The term ‚acceptable‛ is different from the term ‚adequate.‛ 

Even if EPA might in some instances be able to rely solely on the NAAQS, the ‚adequate 

margin of safety‛ at the national level for lead does not necessarily ensure an ‚acceptable‛ risk

from lead for people living near secondary lead smelters. Section 112 requires EPA to focus on 

the ‚individual most exposed‛ to a source category’s emissions. It also requires EPA to 

address the combined impact of all emissions from a source category. 

First, by solely relying on the NAAQS, EPA has failed to explain how it this assessment 

evaluates the interaction of different risks from lead – i.e., inhalation (risks from breathing) and 

multipathway (risks from other types of exposure). EPA’s own past approach under section 112 

shows that it has interpreted this provision as requiring it to consider all elements of risk 

created by a pollutant. EPA has recognized the need to assess cancer risk, chronic non-cancer 

risk, acute risk, and multipathway risk for all pollutants except for lead. EPA failed to assess 

either inhalation and multipathway risk for lead in the way it has recognized the need to do for 

all other pollutants. It must do so rather than only relying on the NAAQS. 

Rather than perform a full risk assessment for lead under section 112(f)(2), the result of 

EPA’s NAAQS-based methodology was that EPA only set a standard that, it states, will avoid 

exceedances of the NAAQS in populated census blocks. 77 Fed. Reg. at 564. EPA reduced the 

prior standard by an order of magnitude – from 2.0 mg/dscm to 0.20 mg/dscm – because of its 

determination that facilities could exceed the NAAQS by a factor of 10. 76 Fed. Reg. at 29,055. 

EPA reduced emissions no more than needed to assure that a source in the Secondary Lead 

Smelting source category would not alone emit to the extent that the ambient air concentration 

of lead would exceed 0.15 μg/m3. EPA did not assess each type of risk caused by lead 

emissions – including chronic inhalation and multipathway risk and other potential risks –

independently from its assessment on the NAAQS, and it thus has failed to show how it 

considered the full impact of secondary lead smelters’ emissions on public health. 

As EPA has acknowledged, there is no safe level of exposure to lead emissions. Yet, in 

light of this, EPA has failed to assess all potential risks from lead independently or together, to 

determine whether the cumulative health risk burden from lead is ‚acceptable.‛

Second, it is unclear how the standard EPA set based on reliance on the NAAQS satisfies 

the agency’s responsibility to assess the greater cumulative impacts of lead emissions from 

multiple facilities in the Secondary Lead Smelting source category under section 112(f)(2). If a 

single source is allowed to emit as much as can occur without that single source’s emissions

violating the NAAQS, then – unless it is the sole lead-emitting source in the area (which is not 

true in places like Los Angeles, where there are two battery recyclers, for example) – that source 
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indeed still has significant potential to cause a NAAQS exceedance when its emissions are 

combined with other sources’ lead emissions. Therefore, even under EPA’s analysis, it is 

unclear how a NAAQS-based 112(f) emission standard would ensure a NAAQS-level of 

protection in the real world because an individual source’s emissions, combined with other 

sources of lead could cause the NAAQS to be exceeded. In view of the potential for cumulative 

impacts from multiple sources, EPA needs to explain how its use of a flow-weighted average of 

0.20 mg/dscm and a higher (1.0 mg/dscm) individual process-vent limit for existing sources

could satisfy section 112(f)(2).

1

Even assuming that EPA’s final rule would at least avoid 

NAAQS exceedances, EPA’s mere 10-fold reduction in the prior standard for lead does not 

alone achieve ‚acceptable‛ risk. While in setting the Lead NAAQS, EPA set a standard to 

protect the health of the average member of the exposed, sensitive sub-population, EPA must 

set a standard to protect the most vulnerable and ‚most exposed‛ child (within that sensitive 

sub-population) near a given source category under section 112(f). 42 U.S.C. § 7412(f)(2). 

Section 112 has a special focus on the most exposed person within a sensitive sub-population

that recognizes greater potential harm may occur due to the level and duration of exposure

from major sources.

Third, EPA’s reliance on the NAAQS has failed to appropriately take into account the 

ongoing impact of historic air emissions on the most-exposed people near secondary lead 

smelters, and has not assessed or explained how the NAAQS could provide ‚acceptable‛ 

protection in view of this history. The affected communities near sources in this source 

category have experienced persistent, bioaccumulative toxic air emissions for years, in the form 

of lead, cadmium, arsenic, and other hazardous air pollutants (HAPs). For example, the Exide 

facility in Frisco has operated since 1971-72, and the Quemetco site has been used for battery 

recycling since 1959.

2

 The NAAQS is set at an ambient level to protect people from future lead

 

1 EPA has not clearly explained how a source that meets the 1.0 mg/dscm limit for a stack will also meet 

the flow-weighted average of 0.20 mg/dscm. If a 10-fold reduction is needed from the prior standard of 

2.0 mg/dscm to prevent NAAQS exceedances, then it is unclear how an individual stack or process vent 

should be allowed to emit above 0.20 mg/dscm. EPA does not explain how setting a limit for an 

individual stack that was only half the prior standard could reduce the source’s emissions significantly 

enough to avoid exceeding the NAAQS. EPA has not explained how the final rule will prevent the 

combined stacks and process vents from causing emissions that exceed the NAAQS. Notably, EPA’s final 

rule does not say that using a 1.0 mg/dscm per-vent limit would prevent a facility from causing 

exceedances of the NAAQS. It only states that this would ‚ensure that stack emissions of lead from any 

one stack in this source category will not result in exceedances of the lead NAAQS.‛ 76 Fed. Reg. at 29,055; 

Final Residual Risk Assessment at 35. 

2

See

https://s3.amazonaws.com/EPAExideReport/1+Exide+Technologies+Lead+Inspector%27s+Overview+Rep
8

air emissions, but did not fully take into account past and ongoing exposure to past air-related 

emissions which had been deposited into the soil and into people’s bodies, and which continue

to affect people’s health today, or the greater benefit available from future reductions of such 

deposition through reductions in air emissions. As EPA stated, ‚*i+n simulating reductions in 

exposure associated with reducing ambient air Pb levels through alternative NAAQS (and 

increases in exposure if the current NAAQS was reached in certain case studies), our modeling 

has only affected the exposure pathways we categorize as recent air (inhalation and ingestion of 

that portion of indoor dust associated with outdoor ambient air). We have not simulated 

decreases in past air-related exposure pathways (e.g., reductions in outdoor soil Pb levels 

following reduction in ambient air Pb levels and a subsequent decrease in exposure through 

incidental soil ingestion and the contribution of outdoor soil to indoor dust). This approach is 

likely to underestimate reductions in ambient air related exposure and risk. Consequently, 

incremental reductions in exposure and risk estimated for alternative NAAQS considered in the 

full-scale analysis, which reflect simulated reductions in the recent air category, are likely to be 

underpredictions of the impact of changes to the NAAQS on total Pb exposure and health 

risk.‛

3

Section 112(f) requires EPA to look at the health risk for the actual, affected communities 

around a source category including the most-exposed person’s full health risk from all airrelated exposure to that source. Even if the NAAQS might be assumed to be acceptable to 

protect a community that had never experienced lead emissions before, it does not ensure that 

risk will be acceptable for people living in an area that has already experienced significant past 

air emissions and who therefore start with a higher level of health risk due to lead than the 

average person. 

Fourth, the record of the NAAQS itself raises questions about EPA’s use of it as the sole 

factor to ensure acceptable risk for all of the most-exposed children for this source category, as 

opposed to just the average exposed child. EPA decided in setting the NAAQS that it was

necessary to provide protection from air-related population mean IQ loss in excess of 2 points. 73 

Fed. Reg. at 67,005.

4

 EPA set the NAAQS at 0.15 μg/m3 based on the finding that ‚the 

 

ort+12_15_2009.pdf; see also http://www.leadfreefrisco.com/epa-report-on-exide; 

http://www.dtsc.ca.gov/HazardousWaste/Projects/upload/Quemetco_FS_DPost-Closure-Permit.pdf. 

3 EPA NAAQS Staff Paper at 4-11 to 4-12; Lead NAAQS, Proposed Rule, 73 Fed. Reg. 29,184, 29,216 (May 

20, 2008) (‚we note that these comparisons underestimate the true impacts of the alternate NAAQS and 

accordingly, the benefit to public health that would result from lower NAAQS levels. This is due to our 

inability to simulate in this assessment reductions in several outdoor air deposition-related pathways 

(e.g., diet, ingestion of outdoor surface soil). The magnitude of this underestimation is unknown.‛).

4 Although lead is associated with many other types of harm as well, e.g., neurological, behavioral, 
9

estimated mean IQ loss from air-related Pb in the subpopulation of children exposed at the level 

of the standard would generally be somewhat to well below 2 IQ points.‛ Id. at 67,006. By using 

a mean to set the standard, EPA only protected the average exposed person from a 2 point IQ 

loss. It did not ensure that the most-exposed individual will be protected at this level, because 

of variations in the harm that may occur even at the same level of ambient air exposure. 

As EPA is aware, there are children and adults who will be more vulnerable to the same 

level of exposure. The most-exposed person may be someone who experiences not the ‚mean‛ 

level of harm, but a higher than average level of harm, from the same level of exposure. For 

example, this may be a child who is more vulnerable for a variety of reasons, such as due to 

exposure at a particularly young age (e.g., 18-27 months), or due to the fact that the child also 

has kidney disease and/or other certain genetic differences. See, e.g., EPA, Review of the 

National Ambient Air Quality Standards for Lead: Policy Assessment of Scientific and Technical 

Information, Ofc. Air Qual. Planning & Stds., EPA NAAQS Staff Paper, EPA-452/R-07-013, at 3-

16 to 3-17 (Nov. 2007) (‚EPA NAAQS Staff Paper‛); 73 Fed. Reg. at 66,975-76. 

Using a mean or average at the national exposure level is thus not an effective way of 

protecting the most-exposed individual person. A small change in the mean IQ is associated 

with a dramatic impact at the population level. As the EPA NAAQS Staff Paper explained, ‚a 

downward shift in the mean IQ value is not associated only with a substantial increase in the 

percentage of individuals achieving very low scores, but also with substantial decreases in 

percentages achieving very high scores,‛ and ‚‘for an individual functioning in the low range 

due to the influence of developmental risk factors other than Pb’, a Pb-associated IQ decline of 

several points might be sufficient to drop that individual into the range associated with 

increased risk of educational, vocational, and social handicap.‛ EPA NAAQS Staff Paper at 3-18

(citing EPA, Air Quality Criteria for Lead, EPA/600/R-5/144aF (Oct. 2006) (Criteria Document or 

CD)). Using a mean is especially not protective enough for a community like that around a 

secondary lead smelter in Frisco, Texas and other communities where there have been years of

long-term, past, and ongoing emissions resulting in a higher body burden of lead and a more 

vulnerable local population. Here, all additional ongoing exposure causes both greater 

community-level harm and increased emission reductions would have greater benefits, because 

impacts on the most-exposed person have a domino effect in terms of causing greater impact to 

the most-exposed community near a source category. 

 

immune, cardiovascular, renal, and heme synthesis, IQ point loss was the metric of public health 

significance that EPA chose to assess harm in the Lead NAAQS. 
1 0

(b) EPA did not consider whether recent post-NAAQS science 

requires greater protection.

EPA has not considered the implications of more recent studies on the issue of lead 

risks. Section 109 itself requires that EPA review the science and the NAAQS regularly. 42 

U.S.C. § 7409(d). Recognizing the need to review newer science and to consider strengthening

the 2008 Lead NAAQS, EPA has already begun a new scientific review of that standard. The 

draft Integrated Science Assessment has found new scientific information that is relevant, 

including information showing health impacts associated with blood lead levels of 2.0 μg/dL 

and below.

5

 EPA completed the Criteria Document (CD) for the 2008 Lead NAAQS in 2006, and 

since that time government entities have released new scientific information documenting that 

lower levels of lead than previously understood pose a danger to public health. As EPA stated 

in finalizing the 2008 NAAQS, it did not rely on new information since the CD at that time, but 

saved it to consider during the next 5-year review. 73 Fed. Reg. at 66,968 (‚EPA is basing the 

final decisions in this review on the studies and related information included in the Pb air 

quality criteria that have undergone CASAC and public review. EPA will consider the ‘new’ 

studies for purposes of decision-making in the next periodic review of the Pb NAAQS‛). 

New information shows that greater protection is needed for the most-exposed children

than the 2008 Lead NAAQS provides, including some new information that only became 

available after the comment period closed. For example, in April 2007 California released a lead 

benchmark that recognizes that there is no safe level of lead exposure and directs action to 

protect children from any blood-lead level change of 1.0 μg/dL (including from 0 to 1, from 1 to 

2, and so on).

6

 EPA now states that ‚EPA is currently evaluating whether or not it is 

appropriate to use the CalEPA child-specific reference doses,‛ Summary at 72, referring

presumably to Petitioners’ comment on all of the OEHHA benchmarks discussed in comments, 

including this lead benchmark (although the lead benchmark is not a ‚dose‛ since there is no 

 

5

http://epa.gov/ttn/naaqs/standards/pb/s_pb_index.html; Draft EPA Integrated Sci. Assessment, 

EPA/600/R-10/075A (May 2011) at 2-60, tbl. 2-8 (comparing 2006 v. 2011 draft scientific assessment, 

summarizing new evidence from epidemiologic, animal toxicological and ecological studies on the effects 

associated with exposure to Pb).

6 Cal. Ofc. Envtl. Health Hazard Assessment (OEHHA), Carlisle, J., et al., Development of Health Criteria 

for School Site Risk Assessment Pursuant to Health and Safety Code Section 901(g): Child-Specific 

Benchmark Change in Blood Lead Concentration for School Site Risk Assessment, Final Report at 1 (April 

2007) (also explaining that this blood-lead level increase may occur from a daily intake of 6 μg of ingested 

soluble lead or 5 μg of inhaled lead), available at 

http://www.oehha.ca.gov/public_info/public/kids/pdf/PbHGV041307.pdf.
1 1

safe level of exposure for lead). EPA should grant reconsideration to fully consider use of the 

OEHHA lead benchmark. After the comment period closed, in January 2012, the CDC’s BloodLead Level of Concern Advisory Panel similarly found that 5.0 μg/dL is the action level of 

concern for a child’s blood lead level, cutting this in half from its prior level of 10.0 μ/dL.7 The 

Panel has recommended that action to protect children occur when children have a blood-lead 

level of 5.0 μg/dL or above. This is still less protective than the California OEHHA benchmark 

(which directs action to protect children where there is a blood-lead level increase of 1.0 μg/dL 

or more, regardless the blood-lead level). However, the Panel’s recognition of the harm lead 

causes and its recommendation to the CDC and HHS represents a bellwether shift in the federal 

government’s treatment of lead. At the time EPA finalized the 2008 Lead NAAQS, it did not 

consider the science discussed by this Panel and did not have this Panel recommendation before 

it. EPA should consider whether this change would require a more protective approach.

In addition, the Office of Environmental Health Hazard Assessment at the California 

Environmental Protection Agency has released a revised draft set of Risk Assessment 

Guidelines for its Air Toxics Hot Spots Program.8 In this document, OEHHA discusses new

scientific information that EPA did not address in issuing the NAAQS. For example, OEHHA 

discusses science showing that the route of breast milk exposure is a route of multi-pathway 

exposure for lead compounds. OEHHA Draft Guidelines at tbl. E.3. For metals and semivolatile chemicals, it is necessary to include an evaluation of soil ingestion, dermal absorption 

from soil and breast milk consumption because these exposure pathways are likely to exist at all 

sites. Id. at 1-2 to 1-5 . EPA has not assessed that route here because it merely relied on the 

Lead NAAQS which did not consider breast milk as an air-related exposure pathway. EPA 

should do so on reconsideration as part of its multipathway analysis to determine whether this 

would require greater protection from lead emissions. In addition, OEHHA includes exposure 

 

7 CDC, Low Level Lead Exposure Harms Children: A Renewed Call for Primary Prevention, Report of 

the Advisory Committee on Childhood Lead Poisoning Prevention of the Centers for Disease Control and 

Prevention (Jan. 4, 2012), http://www.cdc.gov/nceh/lead/ACCLPP/activities.htm. Similarly in 2010, New 

York City has recognized that action is needed at least when a child’s blood-lead level reaches 5.0 μg/dL. 

Based on the science, in 2010, the New York City Department of Health released new lead guidelines that 

direct follow-up care for children with blood-lead levels of 5.0 μg/dL or more because ‚adverse health 

effects may occur at BLLs <10 μg/dL.‛ NYC Dep’t of Health & Mental Hygiene, Lead Poisoning, Vol. 

29(5):41-48, at 41, 43-44 (Sept. 2010), available at http://www.nyc.gov/html/doh/downloads/pdf/chi/chi29-

5.pdf.

8 Cal. EPA, OEHHA, Air Toxics Hot Spots Program Risk Assessment Guidelines, Technical Support 

Document for Exposure Assessment and Stochastic Analysis, Pub. Rev. Draft (Nov. 2011), 

http://oehha.ca.gov/air/hot_spots/crnr110711.html.
1 2

assessment during fetal development, which EPA did not evaluate. See Draft Guidelines at 1-

13. EPA should assess this on reconsideration.9 

All of this new scientific information, and other information EPA has recognized in its 

new EPA’s scientific review of the NAAQS thus far shows additional new information that is 

likely to weigh in favor of a more protective standard. See supra note 5.

ii. EPA has failed to rationally justify its decision not to require 

greater protection for health than is provided by the NAAQS at 

the ‚ample margin‛ stage.

EPA failed to assess whether more health protection is required to provide an ‚ample 

margin of safety to protect public health,‛ instead of focusing only on cost at the final step of its 

section 112(f) analysis. 76 Fed. Reg. at 29,058; 77 Fed. Reg. at 564; see, e.g., ERG, Summary of the 

Technology Review for the Secondary Lead Smelting Source Category, Memo from M. Burr et 

al. to N. Topham (Dec. 16, 2011).

First, the statutory term ‚adequate margin of safety‛ is different than the term ‚ample 

margin of safety.‛ Section 112(f)(2) requires greater protection than the ‚adequate margin‛ that 

the NAAQS provides pursuant to section 109. The term ‚ample‛ means ‚more than adequate,‛ 

according to Webster’s Dictionary, and the D.C. Circuit. See WEBSTER’S 7TH NEW 

COLLEGIATE DICTIONARY 31 (1971 ed.); NRDC v. EPA, 824 F.2d at 1153 (D.C. Cir. 1987); 

Envtl. Def. Fund v. EPA, 598 F.2d 62, 81 (D.C. Cir. 1978). Because of the statutory differences, 

between section 112(f) and 109, EPA may not rationally rely on the NAAQS alone, to meet its 

obligations under section 112(f). 

The focus in section 112 is on the ‚individual most exposed‛ to a source category’s 

emissions, 42 U.S.C. § 7412(f)(2), which is language that does not appear in section 109. Under 

section 112, EPA must focus on the source category’s combined emissions. Congress enacted 

these provisions separately to address pollution in different ways. Neither can be collapsed into 

the other. By enacting both section 109 and section 112, Congress required EPA to take 

 

9

In addition, relevant to EPA’s risk assessment for other pollutants, OEHHA discusses science showing 

that arsenic and nickel both require a multi-pathway risk assessment, in addition to cadmium and lead 

compounds. OEHHA Draft Guidelines, Appendix E & tbl. E-2. Yet for this rule, EPA did not perform a 

multi-pathway risk assessment for arsenic or nickel. RRA at 10-11 (discussing multi-pathway assessment 

only for cadmium). EPA should do so on reconsideration. In addition, OEHHA discusses a 10X 

adjustment factor for cancer risk due to prenatal to age 2 exposures. See id. at 1-13. EPA did not use an 

additional factor to address early life exposure in its risk assessment for this rule and should do so on 

reconsideration. 
1 3

different, important actions under each provision to address different manifestations of public 

health concerns. Section 109 is designed to set national ambient air concentration standards for 

a pollutant emitted by many different types of sources. Section 112 requires EPA to set 

emission standards that apply directly to regulated major air toxics sources, and ensure that 

each source does not cause unacceptable risk. EPA has failed to explain how it can consider the 

NAAQS alone to be the end of the matter in assessing health risk for lead. EPA has failed to 

justify merely relying on the NAAQS to decide what level of risk is ‚acceptable,‛ or to set a 

standard that is required to provide an ‚ample margin of safety to protect public health.‛ 

EPA’s ample margin analysis is considered purely in the cost of pollution reduction, 

without any health metric, as its response to comments emphasizes. Summary at 73. The only 

additional step it took beyond listing its prior findings on health risk was a narrow, cost 

analysis of pollution limits. Summary at 73; Technology Review. The record shows that EPA 

considered no other health factors at the ‚ample margin‛ stage for lead emissions beyond what 

it had already considered – i.e., its stated objective of avoiding exceedances of the NAAQS. 77 

Fed. Reg. at 564 (‚*a+fter implementation of the controls required in this final rule, we estimate 

that there will be no one living at a census block centroid exposed to ambient concentrations 

above the NAAQS due to these facilities‛).10 EPA determined that no additional reductions 

were needed, beyond the emission standard that it had set based on the NAAQS. The result is 

that EPA’s final rule simply provides (at best) that individual sources will not by themselves 

cause a violation of the NAAQS. 

EPA may not lawfully decline to consider health at all after the acceptability stage. Even 

assuming arguendo that it may consider cost, EPA also must consider the ‚ample margin of 

safety‛ in health terms given the statute’s dictate to provide an ‚ample margin of safety to 

protect public health.‛ 42 U.S.C. § 7412(f)(2). Not considering the ‚ample margin‛ in health terms 

writes ‚public health‛ out of the ample margin analysis, in contradiction of the statute.

As the D.C. Circuit recognized in the Vinyl Chloride decision, at the ample margin stage, 

EPA must at least consider whether uncertainties regarding its health risk assessment require a 

stronger standard. NRDC, 824 F.2d at 1165 (‚Congress . . . recognized in section 112 that the 

determination of what is ‘safe’ will always be marked by scientific uncertainty and thus 

exhorted the Administrator to set emission standards that will provide an ‘ample margin’ of 

safety.‛). EPA has failed to consider whether uncertainties in its assessment for this rule or in 

 

10 EPA noted the post-control risk levels for other pollutant health risks, but also did not consider any 

additional health factors for other pollutants beyond those it had already assessed at the ‚acceptability‛ 

stage.
1 4

the analysis underlying the NAAQS itself should lead it to provide a greater margin of safety. 

See, e.g., 76 Fed. Reg. at 29,043-46. EPA did not consider at all what reduction in lead (or other 

HAP) emissions would provide an ‚ample margin‛ of safety to protect the health of the most 

exposed people. Whatever decision EPA ultimately makes, it must at least discuss what the 

‚ample margin‛ is in health terms, based in part on the need to account for uncertainty in its 

own attempt to prevent unacceptable risk. 

EPA’s cost-focused analysis is also unlawful and arbitrary because EPA’s claims of 

infeasibility or cost-prohibitive effects are refuted by the numerous facilities that have achieved 

emission levels well below those proposed by EPA. These are facilities that have created a 

greater ‚margin of safety‛ than EPA’s standards would require. As EPA recognized, Quemetco 

uses a WESP to achieve greater reductions and two other facilities are currently installing this. 

Technology Review at 5; Quemetco, Inc., City of Industry, California -- The Evolution of 

Polishing Wet Electrostatic Precipitator (WESP) Technology for Secondary Lead Process 

Emissions. Other facilities use HEPA filters or other control devices in addition to baghouses. 

Id. at 5-6. In addition, ‚the average stack outlet lead concentration from the baghouse and 

WESP combination was almost 50 times lower than the outlet concentration achieved by using 

baghouses alone. On average, units that employed HEPA filters downstream of a baghouse 

achieved approximately 20 percent lower outlet lead concentrations than baghouses alone, 

however we have no information for the actual reduction from the HEPA filter.‛ Id. at 6. 

Significantly, the vast majority of stacks are already meeting the process vent standards

finalized. 74 of 93 stacks meet the facility-wide final standards (0.20 mg/dscm) and 89 of 93 

meet the stack-specific final process vent standards. The median lead emission from all sources 

in the category is 0.04 mg/dscm, which is significantly lower than the final rule’s standard of 0.2 

mg/dscm. 76 Fed. Reg. at 29,059. Even the average lead emission from all sources, which 

distorts the representation of what most facilities are achieving, is below the standard at 0.16 

mg/dscm. Id. These data demonstrate that lower emissions are eminently achievable and 

feasible, to provide greater health protection.11

 

11 As its Final Residual Risk Assessment shows, some sources have achieved reductions such that their 

emissions result in ambient air concentrations that are less than the NAAQS, including: Revere Smelting 

and Refining Corporation in Middletown, NY (highest modeled ambient air concentration is 0.10 ug/m3; 

which is 0.7 times the NAAQS), and Quemetco in Indianapolis, IN (highest is 0.07 ug/m3; which is 0.5 

times the NAAQS). Moreover, the emissions dataset for point source metal HAP emissions shows that 

Quemetco (Industry, CA) has lead emissions of 16 lbs per year, compared to 9,389.4 lbs per year for the 

Buick (MO) facility, 4,337.3 lbs per year for the Exide Baton Rouge (LA) facility, 2,459.2 lbs per year at 

Frisco Exide (TX), and 2,160.1 lbs per year at Exide Reading (PA). Development of the RTR Emissions 
1 5

Further, EPA does not adequately support its conclusion that the costs of a wet 

electrostatic precipitator render the use of that technology infeasible such that greater 

reductions should not be required. Summary at 30; Cost Impacts for the Secondary Lead 

Smelting Source Category. The fact that three of the facilities in the category are able to install 

the technology demonstrates the opposite of EPA’s conclusion. It shows that reductions from 

the technology are eminently achievable, taking into account cost. Here, available technology 

that is already in use at some sources can achieve 50 times the reduction achievable through the 

use of baghouses alone, the technology on which EPA based its standards, as cited above. EPA 

cannot justify the cost cut-off it chose when there are numerous sources that are clearly able to 

or in the process of achieving greater emission reductions. Section 112(d) requires EPA to 

strengthen the standards for all based on the best-performers, and EPA may consider a similar 

principle in assessing the ‚ample margin‛ to protect public health. 

There is likely to be a significant health benefit from additional reductions of lead, based 

on the science showing that there is no safe level of lead exposure. The science shows that every 

additional amount of lead exposure contributes health risk, and this happens at a greater 

magnitude and faster speed for exposed children. (This is also true for the other HAPs emitted, 

particularly for cadmium and arsenic which both bioaccumulate and create risks beyond the 

initial inhalation risk.) 

The NAAQS record shows that substantial public health benefit is available for people 

living near lead-emitting sources that could create an ‚ample margin of safety‛ beyond the 

NAAQS-based level EPA has set. For example, EPA published a Table (4) with the final Lead 

NAAQS Rule that illustrates that children with a higher air-to-blood ratio (1:10) would still face, 

on average, a loss of above 2 points (i.e., 2.6 IQ points), at the level chosen by EPA (0.15 μg/m3). 

73 Fed. Reg. at 67,006 & tbl. 4 (showing a loss of 1.2 to 1.8 IQ points at 0.10 μg/m3). The 

Children’s Health Advisory Protection Committee urged EPA to set a standard of 0.02 μg/m3 or 

below. 73 Fed. Reg. at 66,999. CASAC and EPA staff also urged EPA to consider setting a 

monthly averaging time instead of a 3-month rolling average to protect against harm from 

shorter term exposure. 73 Fed. Reg. at 66,995.12 For children living within 1.5 km from a lead-

 

Dataset for the Secondary Lead Smelting Source Category at 6 tbl. 3-1 (Point Source Metal HAP 

Emissions Estimates (lbs/yr) by Facility) (Dec. 16, 2011).

12 EPA staff provided the following three reasons in support: ‚1) the health evidence indicates that very 

short exposures can lead to increases in blood Pb lead levels, 2) the time period of response of indoor dust 

Pb to airborne Pb can be on the order of weeks and, 3) the health evidence indicates that adverse effects 

may occur with exposures during relatively short windows of susceptibility, such [as] prenatally and as 
1 6

emitting facility, reducing the ambient air concentration down to 0.02 μg/m3(significantly 

below the level of the NAAQS), could save an additional 1 IQ point. EPA NAAQS Staff Paper 

at 4-33 & Tbl. 4-4 (showing the trend in total IQ loss reduction of 1.0 for the median, or a 

reduction from 5.0 at 0.2 μg/m3, to 4.0 at 0.02 μg/m3, and of 1.1 for the 95th percentile, from 7.6 at 

0.2 μg/m3 to 6.5 at 0.02 μg/m3). As the Clean Air Scientific Advisory Committee (CASAC) 

stated, a loss of 1-2 IQ points is ‚significant from a public health perspective.‛ 73 Fed. Reg. at 

67,000. CASAC also urged that EPA should protect at least 99.5% of the exposed population 

from unacceptable IQ loss. These are examples of what EPA should consider to meet its 

responsibility to provide an ‚ample margin of safety‛ instead of just an ‚adequate margin‛ to 

protect public health. For affected communities like Frisco, TX that have experienced years of 

past exposure, which in turn have increased current health risk, smaller amounts of additional 

emissions are even more likely to cause greater harm. Without even discussing the health

benefits from reductions, EPA cannot perform merely a cost-focused analysis, but must actually 

satisfy the requirement to consider and provide an ‚ample margin of safety to protect public 

health,‛ 42 U.S.C. § 7412(f)(2). 

The fact that there is a two-part test under section 112(f), and a one-part test under 

section 109, as EPA has noted, does not insulate EPA’s determination from the statutory 

violation. Even assuming EPA can consider cost in deciding what is an ‚ample margin of 

safety,‛ does not authorize it to avoid any assessment of what an ‚ample margin of safety to 

protect public health‛ is, beyond the protection at the level of the NAAQS. 

2. EPA failed to provide an ‚ample margin of safety to protect public 

health‛ from the combined impact of all pollutants emitted by this source 

category.

Even assuming that EPA might be able to presume that achieving an ambient air 

concentration of the NAAQS for lead is sufficient to ensure acceptable health risk from lead 

alone for section 112(f) purposes, that cannot be the end of EPA’s analysis of health risk related 

to lead under section 112 for a community exposed to a multi-pollutant source category under 

section 112. The NAAQS only addresses a single pollutant, while section 112(f) requires EPA to 

prevent unacceptable risk from the combination of all toxic pollutants emitted by a major source 

category of HAPs. Secondary lead smelters emit many HAPs other than lead, including 

cadmium and arsenic which cause high cancer, chronic non-cancer, acute, and multi-pathway 

risks. EPA’s acceptability determination under section 112(f) requires the agency to protect the 

 

in developing infants.‛ EPA NAAQS Staff Paper at 5-31; see also Lead NAAQS, Proposed Rule, 73 Fed. 

Reg. 29,184, 29,236 (May 20, 2008). 
1 7

most-exposed person from the total health risk caused by the interaction of all of these 

pollutants, combined. 

This requires a final step of the analysis that assesses the interaction of the various 

pollutants and combines health risk in an appropriate metric to protect the most-exposed 

person from their cumulative effects. Section 112 requires EPA to consider and address the total 

health risk for all toxic air emissions from the source category. EPA must assess each pollutant 

appropriately, but then must also assess the total cumulative health risk from these risks and 

these different pollutants. Relying solely on the NAAQS, which is a risk assessment for a single 

pollutant, meant that EPA performed only a segmented risk analysis that failed to consider the 

interaction of the different pollutants together, on the most-exposed person.13 

After assessing risk from each pollutant alone, EPA must consider their interaction by 

addressing the total, cumulative health risk burden created by the source category. Using only 

the NAAQS – and not any indication of the combined health risk caused by lead and other 

pollutants – meant that EPA failed to satisfy the ultimate requirement under section 112 not just 

to protect people from a single pollutant (as if it were emitted in isolation), but to protect people 

from all emissions from the source category. See 42 U.S.C. § 7412(f)(2). 

When added together the health risk from lead combined with the non-lead HAP health 

risk create a higher level of unacceptable risk than the unacceptable level caused by lead alone. 

People living in the areas affected by this source category are exposed to all of these pollutants 

together, not just lead alone. While EPA found risk to be unacceptable due to cancer risk and 

due to lead-based risk, EPA did not consider the cumulative impact of other types of health risk 

it found (which it determined alone were not unacceptable). Adding the acute, chronic noncancer risk, and other pollutants’ multipathway risk into its analysis, where it has already found 

unacceptable risk, should have led EPA to recognize that the cumulative risk burden for this 

source category is higher than the risk it found just for lead or just for the inhaled carcinogens 

alone. For example, as Cal. EPA has found, ‚*t+he potential neurotoxicity of arsenic in children, 

possibly in combination with other environmental agents, is also a concern. Studies in mice 

(Meija et al., 1997) indicate combined effects of lead and arsenic on the central nervous system 

that were not observed with either metal alone.‛14 Adding other risks on top of already 

 

13 Petitioners recognize that EPA stated that it considered all such risks, and appreciate that EPA 

acknowledged that cancer risk was also unacceptable. That did not resolve EPA’s responsibility to assess 

the combined, interactive impact of all pollutants together, however, including lead.

14 Cal. EPA, Prioritization of Toxic Air Contaminants - Children’s Environmental Health Protection Act, 

Arsenic and Arsenic Compounds at Arsenic-2 (Part II) (Oct. 2001).
1 8

unacceptable risk only increases the risk people face, particularly because they may have 

synergistic impacts. The addition of the other pollutants’ risk to the unacceptable risk of lead 

requires additional protection for the local community beyond just relying on the NAAQS. 

By avoiding the section 112 requirement to prevent unacceptable risk and ensure an 

‚ample margin of safety‛ from a source category’s total emissions (i.e., the combination of all

emitted HAPs), and instead separating the risk analysis into lead and non-lead categories of risk 

EPA never considered whether the combined risk was unacceptable, or how much of a 

reduction of the total health risk was needed to achieve a holistic level of acceptable risk from the 

combined exposure of all pollutants. Instead, EPA separated lead in its analysis and ignored this 

pollutant’s interaction with other HAPs in affecting the health of the community. By solely 

relying on the NAAQS for lead and failing to consider its interaction with other pollutants to 

increase inhalation and multipathway risk, EPA violated section 112(f)(2).

II. EPA MUST RECONSIDER THE EXEMPTIONS FROM THE ENCLOSURE 

STANDARDS.

A. Background

EPA originally proposed to require total enclosure as one alternative, and to require 

only ambient-air monitoring as the other alternative. 76 Fed. Reg. 29060-1. Each alternative was 

designed to prevent fugitive process and fugitive dust emissions from causing an exceedance of 

the NAAQS. Id. In the final rule, EPA appropriately determined to require enclosure of certain 

process and fugitive emission sources in all instances. 77 Fed. Reg. at 563-64; 40 C.F.R. § 

63.544(a). However, without any advance notice, EPA also finalized exemptions to the 

enclosure requirement. 40 C.F.R. § 63.544(b). In addition to exempting wastewater from the 

enclosure requirement, id., EPA also removed the requirement it had proposed for vehicle wash 

water collection to be covered. EPA also weakened the enclosure standard requirements for 

inspection and repair. Id. § 63.544(d). EPA seems to have added these exemptions solely to

respond to industry comment, and has provided no reasoned explanation for them. 77 Fed. 

Reg. at 572; Summary. EPA finalized the enclosure standards with the new exemptions 

independently under both section 112(f)(2) and 112(d)(6). Id. at 564. 

Because EPA did not provide notice of these exemptions from the standards, it was 

impracticable for Petitioners to object during the comment period. Thus, section 307(d)(7)(B), 42 

U.S.C. § 7607(d)(7)(B), requires EPA to grant reconsideration on this issue. 
1 9

B. Grounds for Objection

It is unlawful under both section 112(f)(2) and section 112(d)(6), and arbitrary and 

capricious based on the record for EPA to set exemptions to the enclosure requirements.

1. The enclosure exemptions are unlawful under section 112(f)(2).

EPA has failed to justify not requiring enclosure of the exempt sources listed at 40 C.F.R. 

§ 63.544(b). EPA found health risk was ‚unacceptable‛ in significant part due to fugitive dust 

emissions. 76 Fed. Reg. at 29,056; 77 Fed. Reg. at 563-64, 572. Where risk is unacceptable, 

section 112(f)(2) requires EPA to set a standard that will ensure acceptable risk. NRDC v. EPA, 

489 F.3d at 1265. 

EPA decided, in the final rule, that enclosure – with emissions vented to a process vent 

that must meet the vent standards – was required to protect affected communities from the 

unacceptable health risk caused by these emissions. 77 Fed. Reg. at 564, 566. Because EPA has 

determined that enclosure is necessary to avoid unacceptable risk, it may not lawfully allow any 

exemptions. EPA has failed to provide any reasoned explanation for creating the enclosure 

exemptions , particularly because they may produce additional fugitive HAP emissions that 

affect public health. Failing to control fugitive lead emissions that may occur from these 

sources violates the directive of Nat’l Lime Association that EPA must set a standard to control 

lead emitted from all emitting units within the source. 233 F.3d 625, 633-34 (D.C. Cir. 2000).

Specifically:

o Stormwater and wastewater areas can dry up and produce fugitive dust 

emissions.

o Storage areas for ‚intact batteries,‛ may still produce fugitive emissions in at 

least two ways. One, they may be stacked in open piles without any protection, 

such that originally ‚intact‛ batteries are broken at the bottom of the pile, and 

produce lead emissions. Two, even if ‚intact‛ themselves, they may have been 

transported with broken batteries or other lead-bearing material, such that 

storing them outside may still cause fugitive emissions. 

o Lead bearing material stored in closed containers or enclosed mechanical 

conveyors may still cause fugitive emissions when workers open the containers 

or conveyors. 

o Lead ingot products and ‚clean‛ battery casing material may also come in 

contact with lead bearing material that could produce fugitives.
2 0

o EPA reduced the frequency of the requirement to inspect and require repairs of 

gaps or breaks in the enclosure system. 40 C.F.R. § 63.544(d) (requires repair of 

gaps or breaks in the total enclosure to be ‚within one week‛ instead of 72 hours, 

as was originally proposed).

The enclosure system is an essential part of EPA’s residual risk standards to prevent and 

reduce fugitive process and fugitive dust emissions. 

Yet, EPA has failed to explain why these exemptions are appropriate, and failed to 

assess the fugitive emissions that may escape during the above activities or to set any 

requirements that would limit these fugitive emissions. Because fugitive dust emissions 

contribute so significantly to the unacceptable health risk, EPA must enclose all potential 

fugitive sources, or provide a reasoned explanation and additional work practice standards for 

why limited exemptions will not cause unacceptable health risk. This is especially true because 

EPA has weakened the work practice standards that apply for inspection, accidental release 

reporting, and corrective action, as discussed in the next section. 

One of the justifications for providing the enclosure exemptions seems to be industry’s 

request to exclude from the definition of ‚material storage and handling area‛ any ‚closed 

containers or enclosed mechanical conveyors.‛ 77 Fed. Reg. at 572. EPA has failed to explain 

how this request justifies the exemption. Moreover, EPA went even farther than the 

commenter’s suggestion, by exempting a longer list of areas from the enclosure standards, 

without any reasoned explanation. EPA has failed to consider the current state of enclosure of 

these sources at existing facilities. EPA simply stated that these materials ‚are either in a 

stabilized form that will not create fugitive dust or in a container that prevents fugitive dust 

formation.‛ 77 Fed. Reg. at 572. Yet, as described above, materials in both of these sets of 

circumstances can produce fugitives. Therefore, EPA must reconsider the exemptions or set 

work practice standards to ensure that the exemptions do not cause unacceptable health risk. 

2. The enclosure exemptions are unlawful under section 112(d)(6).

As EPA stated, the proposed total enclosure requirement ‚was based on information 

collected from the industry that indicated that several operating facilities currently enclose most 

or all of their process fugitive emission sources, and that the ambient air concentrations near 

these facilities are significantly lower than those facilities that do not have enclosures.‛ 77 Fed. 

Reg. at 564. Total enclosure is a ‚development‛ under section 112(d)(6) that has led secondary 

lead smelters to reduce their fugitive dust emissions. In addition, because, as EPA has 

recognized, the best-performing sources use total enclosure, greater emission reductions have 

been ‚achieved‛ and are ‚achievable‛ using this control method. 42 U.S.C. §§ 7412(d)(2)-(3). 

Therefore, EPA has failed to justify the enclosure exemptions under section 112(d)(2)-(3). Id. In 
2 1

addition, failing to control fugitive lead emissions that may occur from these sources under 

section 112(d)(6) also violates § 112(d)’s directive that EPA must set a standard to control lead 

from all emitted sources. See National Lime Ass’n, 233 F.3d at 633-634.

3. The enclosure exemptions are unlawful because they cause the process 

vent standards not to be ‚continuous,‛ as required.

EPA has required that all other process fugitive sources and fugitive dust sources must 

be enclosed and vented to vents that must comply with the lead emission limit. 40 C.F.R. §§ 

63.544(a), 63.543(a). The exemptions from the enclosure requirement violate the principle of 

Sierra Club v. EPA, 551 F.3d 1019, 1021 (D.C. Cir. 2008). That case prohibits EPA from setting 

any routine exemption from the process vent standards, whether it is designed to allow sources 

to startup or shutdown their processes, or to transport or store, and remove, lead bearing 

material. 

EPA must require compliance with the enclosure and process vent standards and not 

allow time periods of exemption. Delaying repair of gaps or breaks in the total enclosure for a 

week is equivalent to creating a week exemption for a malfunction of the enclosure system and 

process vent standards (to which the enclosed system requires venting of emissions). This is an 

unlawful exemption under Sierra Club v. EPA. The enclosure system and process vent 

standards must apply ‚at all times.‛ EPA may not allow repairs to be delayed for 1 week. 

Allowing breaks or gaps in the enclosure is highly likely to cause unacceptable health risk to 

occur. There can be no lawful or rational justification for delaying repair for an entire week. 

For these reasons, EPA should reconsider the exemptions to the enclosure and process 

vent standards, and should require total enclosure of all exempted sources. 

III. EPA MUST RECONSIDER THE MONITORING EXEMPTIONS.

A. Background

EPA also finalized three monitoring exemptions that it had not proposed. The final rule 

requires a bag leak detection system for all baghouses except those equipped with high 

efficiency particulate air (HEPA) filters as a secondary filter, and except those followed by a wet 

electrostatic precipitator (WESP). 40 C.F.R. § 63.548(g), (h). The final rule also requires that all 

new and reconstructed sources ‚must install, calibrate, maintain and operate a CEMS 

*continuous emissions monitoring system+ for measuring lead emissions‛ within 180 days of 

promulgation by EPA of performance specifications for lead CEMS. 40 C.F.R. § 63.548(l)(1). 

However, EPA created an exemption from the new-sources CEMS requirement for ‚*v+ents 
2 2

from control devices that serve only to control emissions from buildings containing lead bearing 

materials.‛ Id. § 63.548(l)(3). 

Because EPA did not provide notice of these monitoring exemptions, it was 

impracticable for Petitioners to object during the comment period. Thus, section 307(d)(7)(B), 42 

U.S.C. § 7607(d)(7)(B), requires EPA to grant reconsideration on this issue. 

B. Grounds for Objection

The Act requires EPA to set standards that will ensure compliance, and basic monitoring 

is essential to satisfy this requirement. Section 112 includes strict compliance provisions for 

residual risk standards and all other section 112(d) standards. 42 U.S.C. § 7412(f)(4) (prohibiting 

non-compliance with a residual risk standard starting 90 days after promulgation); id. § 

7412(i)(3) (requiring EPA to ‚provide for compliance as expeditiously as practicable, but in no 

event later than 3 years after the effective date of such standard‛ with narrow exceptions). 

EPA also must ensure that strict monitoring and enforcement provisions are part of its 

standards to enforce the permit condition requirements of the Act. The Clean Air Act requires 

permits to contain ‚conditions as are necessary to assure compliance with applicable 

requirements of *the Act+.‛ 42 U.S.C. § 7661c(a). 40 C.F.R. Part 70 adds detail to this 

requirement. 40 C.F.R. § 70.6(a)(3) requires ‚monitoring sufficient to yield reliable data from the 

relevant time period that are representative of the source’s compliance.‛ Section 70.6(c)(1) 

requires all Part 70 permits to contain ‚testing, monitoring, reporting, and recordkeeping 

requirements sufficient to assure compliance with the terms and conditions of the permit.‛ 40 

C.F.R. § 70.6(a)(3). 

Monitoring requirements are one of the primary factors in determining whether EPA’s 

final rule will succeed in reducing lead and other HAP emissions as EPA has predicted. 

Monitoring requirements are essential so that EPA, states, and citizens can assess whether a 

facility is in full compliance with the standards within a short period of time of any violation. 

EPA has recognized the need for strong monitoring requirements to assure compliance, by 

updating the monitoring requirements substantially from the prior rule. 76 Fed. Reg. at 29,063 

(listing updates to monitoring, recordkeeping, and reporting requirements). The past 

exemption during periods of startup, shutdown, and malfunction which EPA has appropriately 

removed from the rule, also shows the need for strong enforcement of EPA’s standards now 

that they will finally apply at all times. The removal of a major exemption sources have likely 

used in the past creates an additional need for strong monitoring requirements to ensure 

compliance occurs. EPA must implement strong enforcement provisions to prevent emission 
2 3

spikes, malfunctions and other violations in a way that will be enforceable by citizens in the 

Title V permits for secondary lead smelters. 

By creating exemptions from the emission monitoring requirements, EPA has not set 

standards that assure compliance by the deadline set under section 112(f)(4) and section 

112(i)(3). It also has failed to set standards that will ‚assure compliance with applicable 

requirements of *the Act+.‛ 42 U.S.C. § 7661c(a). Importantly, it was also arbitrary and 

capricious for EPA to finalize these monitoring exemptions because it has failed to provide a 

reasoned explanation for them. 

EPA appeared to set the exemption from the CEMS for lead-bearing building process 

vents based on an industry comment. But, it provided no reasoned explanation for why CEMS 

is not needed other than industry’s request not to have to install them. Summary at 105-06.

The exemption from the bag leak detection system (‚BLDS‛) for baghouses equipped 

with HEPA filters also seems to come from an industry comment. To explain this exemption 

EPA states that ‚*m+easurement of pressure drop across a HEPA filter provides the needed 

information to determine that the filter is performing effectively so a bag leak detection system 

would be redundant.‛ Summary at 125; 77 Fed. Reg. at 574. However, the bag leak detection 

system otherwise required does more than just detect a problem. For example, the BLDS also 

‚must be equipped with an alarm system that will alarm when an increase in relative 

particulate loadings is detected over a preset level.‛ 40 C.F.R. § 63.548(e)(3). EPA’s HEPA filter 

exemption does not require an alarm system. Moreover, each source with a BLDS is required to 

establish a ‚corrective action plan‛ that requires correction action ‚must be initiated within 30 

minutes of the alarm.‛ Id. § 63.548(f)(1). Although EPA’s HEPA filter exemption requires 

corrective action, it does not set a deadline to take it. EPA should reconsider the exemption 

and, if it determines that it is sufficient to assure compliance with the standards, then EPA must 

require an alarm system, corrective action within 30 minutes, and all other protections needed 

to prevent a malfunction of the baghouses and HEPA filter from causing emission spikes and 

unacceptable health risk.

It is unclear why EPA finalized the exemption from the BLDS for baghouses followed by 

a WESP. Petitioners could find no discussion of this change or any reasoned explanation for it. 

Moreover, this new exemption (not proposed) does not even contain the minimal protections 

listed in the HEPA filter rule. Even a WESP can malfunction or become overwhelmed if 

emissions increase unexpectedly into a baghouse. As EPA has recognized, malfunctions are 

likely to occur (which is why it has finalized an affirmative defense to civil penalties in such 

instances, which Petitioners believe is unlawful). In view of this, EPA’s WESP exemption from 

the BLDS violates the requirements for EPA to assure compliance by particular deadlines, under 
2 4

section 112(f)(2) and 112(i). And, the exemption violates the requirement that EPA set 

standards for air permits that will allow affected local residents to ‚assure compliance.‛ 

EPA must reconsider each of these exemptions and require that the monitoring 

standards apply at all times. 

IV. EPA MUST RECONSIDER THE CHANGES MADE TO THE PROPOSED WORK 

PRACTICE STANDARDS AND SET STRONGER STANDARDS.

A. Background

EPA also finalized significant changes to the work practice standards that it had not 

originally proposed. 40 C.F.R. §§ 63.544-45, 63.548; 77 Fed. Reg. at 565. Because EPA did not 

propose the below exemptions and other significant changes to the work practice standards,

Petitioners had no opportunity to comment on these changes. Therefore, section 307(d)(7)(B), 

42 U.S.C. § 7607(d)(7)(B), requires EPA to grant reconsideration on this issue. 

B. Grounds for Objection

EPA finalized the following list of changes to the work practice standards that weaken 

them and make them less likely to prevent unacceptable health risk due to fugitive dust 

emissions. For each of the reasons stated below, EPA has failed to justify the exemption or 

change and should reconsider it. 

1. Accidental release standards.

EPA redefined ‚accidental release‛ so that cleaning of affected areas is only required for 

‚any accidental release of lead dust that exceeds 10 pounds.‛ 40 C.F.R. § 63.545((c)(3). EPA had 

proposed that all accidental releases must be cleaned. 

Requiring the reporting and cleaning of all accidental releases of lead is vital to ensure 

compliance with the requirement and to prevent harm as a result. Setting an exemption from 

the requirement to clean up after an accidental release for 10 lbs of lead or less is equivalent to a 

malfunction exemption under section 112. It is unlawful for the same reasons the D.C. Circuit 

found malfunction exemptions from the standards are unlawful under section 112 and 302(k). 

Sierra Club v. EPA, 551 F.3d at 1021. Just as emission standards must apply ‚at all times,‛ work 

practice standards designed to address exceedances of emission standards – such as the 

accidental release clean-up requirement – also must apply at all times. 

Further, EPA cannot rationally justify any amount-based exemption to the clean-up 

requirement, much less a 10-pound exemption. There is no safe level of exposure to lead
2 5

emissions. Even purportedly small amounts of lead emissions add up to amounts that can 

cause irreparable harm to people, especially children, who breathe or otherwise take in those 

emissions. An accidental release of lead of 10 lbs or less is still a significant release of lead 

emissions. If this occurred every day for a month, it would add up to 300 lbs of lead, and could 

quickly add up to a situation that would cause unacceptable levels of lead in the ambient air 

near the facility. For sources like secondary lead smelters that have operated for decades in 

their current location – such as the Frisco facility that has operated since the early 1970s and the 

Quemetco plant in Industry, CA whose site has been used for recycling batteries and lead since 

195915– the lead emissions going into the air and soil add on top of many years’ worth of prior 

emissions. In these circumstances, EPA can have no lawful or rational basis for treating any 

amount of lead emissions as an amount not requiring immediate clean-up. 

EPA has provided no analysis of what the impact of its 10-lb exemption would be based 

on industry practice or based on any prediction of how often accidental releases occur. Absent 

this, EPA cannot merely assume that a 10-lb exemption complies with section 112. 

EPA has merely cited and relied upon the CERCLA 10-lb reporting threshold for lead. 

40 C.F.R. § 302.4. CERCLA is designed to assure timely response and clean-up of hazardous 

waste releases to satisfy its objectives. Here, under the Clean Air Act, EPA has recognized that 

releases of lead emissions into the air cause unacceptable public health risk. EPA has not 

determined that a release of 10 lbs or below alone, or combined with other emissions, would not 

cause unacceptable health impacts or risk. EPA may not merely rely on the CERCLA threshold 

to decide how much lead requires clean-up under section 112. EPA must consider how much 

lead is likely to cause unacceptable health risk, and what clean-up is required to prevent 

unacceptable health risk. Because it has failed to provide any rational or lawful justification 

under section 112 for a 10-lb exemption from the accidental release cleaning requirement, EPA 

must reconsider this exemption. 

2. Requirement to inspect and move broken batteries. 

EPA reduced the frequency of the requirement to inspect un-enclosed battery storage 

areas, changing it to be weekly instead of daily. 40 C.F.R. § 63.545(c)(4). EPA also created delay 

before a source is required to take corrective action. Facilities can wait 72 hours to move broken 

batteries after discovering they are broken, instead of doing so immediately, as proposed. Id.

Facilities can wait 72 hours to clean residue from batteries, instead of doing so within 1 hour. 

Id.

 

15 http://www.dtsc.ca.gov/HazardousWaste/Projects/upload/Quemetco_FS_DPost-Closure-Permit.pdf. 
2 6

This delay is unlawful and unjustified for similar reasons why the delay in inspection 

and repair of gaps in the enclosure system is unjustified. Broken batteries and intact batteries 

that have been transported with broken batteries can leak lead and cause fugitive emissions. 

Such emissions should not be allowed to occur for 10 days without corrective action. Moreover, 

failing to require daily inspection and immediate corrective action is likely to be equivalent, for 

some sources to just allowing an exemption from the work practice standards for battery 

storage areas. One week provides sufficient time for a source to place broken batteries in an 

unenclosed battery storage area and then move them before an inspection occurs, because the 

rules would allow this. 

3. Paved-road exemption. 

EPA added an exemption from paving requirement for roads used ‚no more than one 

round trip per day.‛ 40 C.F.R. § 63.545(c)(2). EPA has similarly given no reasoned explanation 

for creating this exemption. One round trip per day is a significant amount of trips. It adds up 

to 2 trips (for one round trip) per day, or a total of 730 one-way trips per year. This is a 

significant amount of vehicle traffic that can create fugitive dust emissions. 

4. Transport enclosure. 

EPA exempted lead ingot product and intact batteries from the requirement that 

material transport must be enclosed. 40 C.F.R. § 63.545(c)(7). For reasons already discussed 

above – that these materials may contain residue or may themselves be broken while stored –

EPA should not remove this requirement without ensuring additional protection from fugitive 

dust emissions.

All of the above exemptions and weakened requirements (along with the removal of the 

roof-washing requirement and the removal of the requirement to perform maintenance and 

inspection of fabric filters inside enclosures) add up to undermine the effectiveness of EPA’s 

standards and make it difficult for local community members to assure compliance. Petitioners 

therefore urge EPA to grant reconsideration to correct each of the problems described above. 

V. EPA MUST RECONSIDER THE AUTOMOTIVE BATTERIES-ONLY STANDARD.

EPA had proposed to require a process ‚to separate plastic battery casing materials‛ 

from all batteries ‚prior to introducing feed into a furnace.‛ EPA only finalized this 

requirement for automotive batteries, creating an exemption for other types of batteries. 40 

C.F.R. § 63.543(m). Because of the change from proposal to final, it was not practicable for 

Petitioners to raise this objection during the comment period. EPA should therefore grant 

reconsideration on this issue. 
2 7

EPA has failed to provide a reasoned explanation for limiting this requirement to 

automotive batteries. EPA should also set specific requirements to implement this process for 

all batteries, rather than simply saying ‚must operate a process.‛ The provision is too vague. 

EPA has not rationally justified the exemption for other types of batteries or its failure to specify

a process that must be followed to ensure compliance for the rule it has finalized for automotive 

batteries. EPA should grant reconsideration to address these problems to ensure that the final 

standard will serve the purpose of preventing avoidable emissions of dioxins and furans that 

result from burning plastics whether they are taken from automotive batteries or other batteries. 

CONCLUSION

For the above reasons, petitioners respectfully request that EPA grant reconsideration on

the Final Rule for Secondary Lead Smelting to fulfill the agency’s legal responsibilities under 

the Clean Air Act and provide necessary protection to people affected by this source category. 

In support of this petition, petitioners attach a list of documents as an Appendix. Please 

contact us if you would like additional information regarding this matter. 

Thank you for your time and consideration of this matter.

Sincerely,

Emma C. Cheuse

(202) 667-4500 ext. 5220

echeuse@earthjustice.org

James S. Pew

(202) 667-4500 ext. 5214

jpew@earthjustice.org

Counsel for Petitioners Sierra Club, 

California Communities Against Toxics, 

Frisco Unleaded, Missouri Coalition for 

the Environment Foundation, and 

Natural Resources Defense Council

Avinash Kar

(415) 875-6100

akar@nrdc.org
2 8

Counsel for Petitioner Natural 

Resources Defense Council

CONTENTS OF APPENDIX

1. Cal. EPA, OEHHA, Carlisle, J., et al., Development of Health Criteria for School Site Risk 

Assessment Pursuant to Health and Safety Code Section 901(g): Child-Specific 

Benchmark Change in Blood Lead Concentration for School Site Risk Assessment, Final 

Report (April 2007), available at 

http://www.oehha.ca.gov/public_info/public/kids/pdf/PbHGV041307.pdf

2. Cal. EPA, OEHHA, Air Toxics Hot Spots Program Risk Assessment Guidelines, 

Technical Support Document for Exposure Assessment and Stochastic Analysis, Pub. 

Rev. Draft (Nov. 2011), http://oehha.ca.gov/air/hot_spots/crnr110711.html

3. CDC, Low Level Lead Exposure Harms Children: A Renewed Call for Primary 

Prevention, Report of the Advisory Committee on Childhood Lead Poisoning 

Prevention of the Centers for Disease Control and Prevention (Jan. 4, 2012), 

http://www.cdc.gov/nceh/lead/ACCLPP/activities.htm

4. EPA, Air Quality Criteria for Lead, EPA/600/R-5/144aF (Oct. 2006) (Criteria Document)

5. EPA, Draft Integrated Sci. Assessment on the Lead NAAQS, EPA/600/R-10/075A (May 

2011)

6. EPA, National Ambient Air Quality Standards (NAAQS) for Lead, Final Rule, 73 Fed. 

Reg. 66,964 (Nov. 12, 2008)

7. EPA, National Ambient Air Quality Standards (NAAQS) for Lead, Proposed Rule, 73 

Fed. Reg. 29,184 (May 20, 2008)

8. EPA, Review of the National Ambient Air Quality Standards for Lead: Policy 

Assessment of Scientific and Technical Information, Ofc. Air Qual. Planning & Stds., 

Staff Paper, EPA-452/R-07-013 (Nov. 2007) (‚EPA NAAQS Staff Paper‛)

9. Quemetco, Inc., City of Industry, California -- The Evolution of Polishing Wet 

Electrostatic Precipitator (WESP) Technology for Secondary Lead Process Emissions.

10. Additional facility-specific documents cited above.