63878 Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 

State 

SO2 Group 2 trading 

budget (tons) * for 2014 

and thereafter 

New unit set-aside 

(tons) for 2014 and 

thereafter 

Indian country new unit 

set-aside (tons) for 2014 

and thereafter 

Texas ........................................................................................... 314,021 15,387 314 

* Each trading budget includes the new unit set-aside and, where applicable, the Indian country new unit set-aside and does not include the 

variability limit. 

(b) The States’ variability limits for 

the State SO2 Group 2 trading budgets 

for the control periods in 2014 and 

thereafter are as follows: 

State 

Variability limits 

for 2014 and 

thereafter 

Alabama ............................ 38,386 

Georgia ............................. 17,142 

Kansas .............................. 7,475 

Minnesota ......................... 7,557 

Nebraska .......................... 11,709 

South Carolina .................. 15,952 

Texas ................................ 56,524 

15. Section 97.725 is amended by, in 

paragraph (b)(1), removing the word 

‘‘2013’’ and adding, in its place, the 

word ‘‘2015’’. 

[FR Doc. 2011–26521 Filed 10–13–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[EPA–HQ–OAR–2010–0750; FRL–9477–1] 

RIN 2060–AQ10 

New Source Performance Standards 

Review for Nitric Acid Plants 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing 

revisions to the new source performance 

standards (NSPS) for nitric acid plants. 

Nitric acid plants include one or more 

nitric acid production units. These 

proposed revisions include a change to 

the nitrogen oxides (NOX) emission 

limit, which applies to each nitric acid 

production unit commencing 

construction, modification, or 

reconstruction after October 14, 2011. 

These proposed revisions will also 

include additional testing and 

monitoring requirements. 

DATES: Comments must be received on 

or before November 28, 2011. Under the 

Paperwork Reduction Act, comments on 

the information collection provisions 

are best assured of having full effect if 

the Office of Management and Budget 

(OMB) receives a copy of your 

comments on or before November 14, 

2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0750, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Agency Web site: http:// 

www.epa.gov/oar/docket.html. Follow 

the instructions for submitting 

comments on the EPA Air and Radiation 

Docket Web site. 

• E-mail: a-and-r-Docket@epa.gov. 

Include EPA–HQ–OAR–2010–0750 in 

the subject line of the message. 

• Fax: Fax your comments to: (202) 

566–9744, Attention Docket ID No. 

EPA–HQ–OAR–2010–0750. 

• Mail: Send your comments to: EPA 

Docket Center (EPA/DC), Environmental 

Protection Agency, Mailcode: 2822T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460, Attention: 

Docket ID No. EPA–HQ–OAR–2010– 

0750. Please include a total of two 

copies. In addition, please mail a copy 

of your comments on the information 

collection provisions to the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget 

(OMB), Attn: Desk Officer for EPA, 725 

17th St., NW., Washington, DC 20503. 

• Hand Delivery or Courier: In person 

or by courier, deliver comments to EPA 

Docket Center, EPA West, Room 3334, 

1301 Constitution Ave., NW., 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket 

Center’s normal hours of operation, 

(8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays), and 

special arrangements should be made 

for deliveries of boxed information. 

Please include a total of two copies. 

Instructions: All submissions received 

must include the agency name and 

docket number or Regulatory 

Information Number (RIN) for this 

rulemaking. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means that the EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to the EPA without 

going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

will be made available on the Internet. 

If you submit an electronic comment, 

the EPA recommends that you include 

your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For detailed instructions on 

submitting comments and additional 

information on the rulemaking process, 

see the ‘‘General Information’’ heading 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: All documents in the docket 

are listed in the http:// 

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 in http:// 

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 proposed 

standards for nitric acid production 

units, contact Mr. Chuck French, Sector 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 63879 

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) 

541–7912; fax number (919) 541–3207, 

e-mail address: French.chuck@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. What should I consider as I prepare my 

comments to EPA? 

C. Where can I get a copy of this 

document? 

D. When would a public hearing occur? 

II. Background Information 

A. What is the statutory authority for these 

proposed revisions? 

B. What are the current NSPS for Nitric 

Acid Plants? 

III. Summary of Proposed Standards 

A. What source category is being regulated? 

B. What pollutants are emitted from these 

sources? 

C. What are the proposed standards? 

IV. Rationale for the Proposed Standards 

A. How is EPA proposing to revise the 

emissions limit for affected sources? 

B. How is EPA proposing to revise the 

testing and monitoring requirements? 

C. How is EPA proposing to revise the 

notification, reporting, and 

recordkeeping requirements? 

V. Summary of Cost, Environmental, Energy, 

and Economic Impacts of These 

Proposed Standards 

A. What are the impacts for new nitric acid 

production units? 

B. What are the secondary impacts for new 

nitric acid production units? 

C. What are the economic impacts for new 

nitric acid production units? 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paper Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Does this action apply to me? 

Categories and entities potentially 

regulated by these proposed 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. 

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 

proposed action to a particular entity, 

contact the person in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. What should I consider as I prepare 

my comments to the EPA? 

Do not submit information that you 

consider to be CBI electronically 

through http://www.regulations.gov or 

e-mail. Send or deliver information 

identified as CBI only to the following 

address: Roberto Morales, OAQPS 

Document Control Officer (C404–02), 

Office of Air Quality Planning and 

Standards, Environmental Protection 

Agency, Research Triangle Park, NC 

27711, Attention Docket ID No. EPA– 

HQ–OAR–2010–0750. Clearly mark the 

part or all of the information that you 

claim to be CBI. For CBI information in 

a disk or CD–ROM that you mail to EPA, 

mark the outside of the disk or CD–ROM 

as CBI and then identify electronically 

within the disk or CD–ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information marked as CBI will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR part 2. 

C. Where can I get a copy of this 

document? 

In addition to being available in the 

docket, an electronic copy of the 

proposed action is available on the 

Worldwide Web (WWW) through the 

Technology Transfer Network (TTN) 

Web site. Following signature, EPA 

posted a copy of the proposed action on 

the TTN Web site’s policy and guidance 

page for newly proposed or promulgated 

rules at http://www.epa.gov/ttn/oarpg. 

The TTN Web site provides information 

and technology exchange in various 

areas of air pollution control. 

D. When would a public hearing occur? 

If anyone contacts EPA requesting to 

speak at a public hearing by October 24, 

2011, a public hearing will be held on 

October 28, 2011. Persons interested in 

presenting oral testimony or inquiring 

as to whether a public hearing is to be 

held should contact Mr. Chuck French, 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

II. Background Information 

A. What is the statutory authority for 

these proposed revisions? 

New source performance standards 

(NSPS) implement Clean Air Act (CAA) 

section 111. 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, and 

will be referred to in this preamble as 

best system of emissions reduction 

(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 best available 

control technology (BACT) 

determinations made as part of new 

source review (NSR). Also, emissions 

limits that exist in state and federal 

permits for recently permitted sources, 


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and emissions test data for 

demonstrated control technologies 

collected for compliance demonstration 

or other purposes are evaluated during 

these assessments. 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. 

The use of State permit data and 

BACT determination developed as part 

of NSR is appropriate because a BACT 

determination evaluates information 

that is similar to BSER, such as available 

controls, their performance, cost, and 

non-air environmental impacts. One 

important difference between BACT 

determinations and a BSER 

determination for purposes of NSPS is 

that BACT determinations are made on 

a site-specific basis. Therefore, in 

evaluating BACT determinations, we 

have to account for any site-specific 

factors that may not be applicable to the 

source category as a whole. 

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 facilities that are 

modified or reconstructed would also be 

subject to these proposed revisions for 

affected sources. 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 facility that do 

not result in an increase in emissions 

are not considered modifications. 

Rebuilt affected facilities would become 

subject to the proposed standards under 

the reconstruction provisions, regardless 

of changes in emission rate. 

Reconstruction means the replacement 

of components of an existing facility 

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 facility; and (2) it is 

technologically and economically 

feasible to meet the applicable standards 

(40 CFR 60.15). 

The NSPS are directly enforceable 

federal regulations 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. 

B. What are the current NSPS for Nitric 

Acid Plants NSPS? 

The current 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)). The current Nitric Acid 

Plants NSPS (Subpart G) applies to each 

nitric acid production unit constructed 

or modified after August 17, 1971. The 

present NSPS has an emissions limit of 

3.0 lb of NOX per ton of 100% nitric 

acid produced and a 10% 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 Proposed Standards 

A. What source category is being 

regulated? 

Today’s proposed standards would 

apply to new nitric acid production 

units. Nitric acid plants may include 

one or more nitric acid production 

units. For purposes of these proposed 

regulations, a nitric acid production 

unit 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. 

A new nitric acid production unit is 

defined as a nitric acid production unit 

for which construction, modification, or 

reconstruction commences on or after 

October 14, 2011. The affected facility 

under the proposed NSPS is each nitric 

acid production unit. 

B. What pollutants are emitted from 

these sources? 

The pollutant to be regulated under 

section 111(b), for new nitric acid 

production units, is NOX which undergo 

reactions in the atmosphere to form 

particulate matter and ozone. Nitrogen 

oxides, particulate matter, and ozone are 

all 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. NOX is a criteria pollutant. 

These nitric acid production units 

also emit another nitrogen compound 

known as nitrous oxide (N2O), which is 

considered a greenhouse gas (GHG). We 

are not proposing an N2O emission 

standard in this action. Although we 

have limited data from facilities in the 

U.S, we believe that owners/operators of 

nitric acid production units should 

consider technologies and technology 

combinations that would be appropriate 

for controlling both NOX and N2O. Some 

technologies such as selective catalytic 

reduction (SCR) and hydrogen peroxide 

injection (HPI) are effective only in 

controlling NOX. However, other 

technologies such as nonselective 

catalytic reduction (NSCR) are effective 

in controlling both NOX and N2O. 

The technology combinations that 

control both NOX and N2O include SCR 

plus secondary catalysts (located in the 

ammonia reactor), and SCR plus other 

non-NSCR types of tertiary catalysts 

(located after the absorption tower). We 

expect any controls applied to control 

NOX emissions would not preclude 

installing cost effective N2O control 

technologies in the future. We solicit 

relevant comments and additional 

information on these technologies. 

Nitric acid production is also one of the 

industrial sectors for which ‘‘white 

papers’’ were written to provide basic 

information on GHG control options to 

assist state and local air pollution 

control agencies, tribal authorities, and 

regulated entities in implementing 

measures to reduce GHGs, particularly 

in the assessment of BACT under the 

PSD permitting program. These papers 

provide basic technical information that 

may be useful in a BACT analysis but 

they do not define BACT for each sector. 

For more information regarding the 

‘‘white papers,’’ see http:// 

www.epa.gov/nsr/ghgpermitting.html. 

C. What are the proposed standards? 

We are proposing to reduce the NOX

emissions limit from 3.0 pounds of NOX

per ton of nitric acid produced (lb NOX/ 

ton acid), expressed as NO2, with the 

production being expressed as 100 

percent nitric acid, to 0.50 lb NOX/ton 


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Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 63881 

acid as a 30-day emission rate 

calculated each operating day based on 

the previous 30 consecutive 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). 

Here, the EPA is proposing standards in 

Subpart Ga that apply at all times, 

including periods of startup or 

shutdown, and periods of malfunction. 

IV. Rationale for the Proposed 

Standards 

Section 111(a)(1) requires that 

standards of performance for new 

sources reflect the— 

* * * degree of emission limitation 

achievable through the application of the best 

system of emission reduction which (taking 

into account the cost of achieving such 

reduction, and any nonair quality health and 

environmental impact and energy 

requirements) the Administrator determines 

has been adequately demonstrated. 

A. How is EPA proposing to revise the 

emissions limit for affected sources? 

For affected sources constructed, 

modified, or reconstructed after October 

14, 2011, we are proposing 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. 

The NOX emissions limit for affected 

facilities constructed, modified, or 

reconstructed after August 17, 1971, and 

before October 14, 2011 remains 

unchanged at 3.0 lb NOX/ton acid. 

The 1971 promulgated Nitric Acid 

Plants NSPS were based on emission 

levels achieved using catalytic 

reduction (see 36 FR 2881, December 

23, 1971). Additional reviews of the 

NSPS were conducted in 1979 and 

1984, where EPA again concluded that 

catalytic reduction was the BSER 

considering economic, energy, and 

nonair environmental impacts. No 

changes were made to the NSPS during 

these reviews. 

There are currently 40 nitric acid 

production facilities in the U.S. with a 

total of 67 nitric acid production units. 

For this review, information was 

collected from responses to a section 

114 information collection request 

(ICR), through site visits and from trade 

associations. The information and 

comments from stakeholders are 

contained in the docket. 

The review of permits and other 

available information in the record 

revealed that SCR, NSCR, and HPI are 

all air pollution control technologies 

that are used for NOX control in the 

nitric acid production source category 

and EPA considered all of these as 

candidates for BSER as we developed 

this proposed rule. We are not aware of 

any other established or emerging 

technologies that should be considered 

as candidates for BSER for this source 

category. SCR is used in 25 nitric acid 

production units in the U.S. NSCR is 

used in 14 nitric acid process units in 

the U.S. HPI is used by one facility. All 

of these air pollution control 

technologies are effective in controlling 

NOX emissions. The average NOX

emission reductions for these controls 

are: SCR—98%; NSCR—99%, HPI— 

95% (for more information see Table 3.3 

in the Economic Impact Analysis, which 

is available in the docket for this 

action). 

The approach used for determining 

BSER for nitric acid production units 

involved reviewing the emission test 

data submitted in response to the 

section 114 ICR, recently issued state 

permit data, and BACT determinations 

developed as part of NSR. In response 

to clarifications of the section 114 ICRs, 

industry provided additional data. In 

determining BSER we generally look at 

the controls and control performance of 

new sources. All recent nitric acid units 

have installed SCR as NOX controls. 

Recent BACT determinations have also 

identified SCR as BACT. 

A 2009 BACT determination has been 

incorporated into the facility permit 

limit for a nitric acid plant in American 

Falls, Idaho (Southeast Idaho Energy, 

LLC). For this analysis, SCR was 

determined as BACT, and 0.60 lb NOX/ 

ton acid was determined as the BACT 

level of control. The Southeast Idaho 

Energy, LLC emission limit of 0.60 lb 

NOX/ton acid will apply at all times 

during steady-state operations (no 

standard applies during periods of 

startup or shutdown, and periods of 

malfunction). The compliance period 

was not specified. 

There are other recent BACT analyses 

at two other nitric acid production 

units. At Agrium in North Bend, Ohio, 

the BACT limit set in 2009 is 0.61 lb 

NOX/ton acid on a 365-day rolling basis. 

At Agrium in Kennewick, Washington, 

the BACT limit set in 2008 is 0.60 lb 

NOX/ton acid in any continuous 12- 

month period (including startup, 

shutdown and malfunction). 

As part of our BSER analysis, we are 

proposing that the standard be stated as 

a rolling 30-day limit based on 30 

consecutive operating days and that the 

limit be met at all times. We believe that 

the 0.50 lb NOX/ton acid standard, 

supported by existing source data and 

BACT determinations, is more stringent 

than any state BACT determination 

because 0.50 lb NOX/ton acid is lower 

than both 0.61 lb NOX/ton acid and 0.60 

lb NOX/ton acid. 

Emissions test data were obtained 

from a number of sources including a 

section 114 ICR, trade associations, and 

the EPA Region 5. We received nine 

relative accuracy test audit (RATA) 

reports for 5 nitric acid production units 

controlled with SCR, 6 RATA reports for 

6 nitric acid production units controlled 

with NSCR, and 1 RATA report for 1 

nitric acid production unit controlled 

with HPI. These emissions tests are 

short term and are presented in the 

memorandum Summary of Test Data 

Received from Section 114 ICR, dated 

August 25, 2010 (updated December 17, 

2010). 

In response to the section 114 request, 

nitric acid plants submitted NOX

Continuous Emission Monitoring 

Systems (CEMS) data. These included 3 

facilities using SCR and 2 facilities 

using NSCR. 

All emission test data (short term and 

CEMS data) indicate that lower 

emissions than the current Subpart G 

emission limit of 3.0 lb NOX/ton acid 

are being achieved, regardless of the 

type of NOX control being used. We 

decided to further analyze the long-term 

CEMS data because: (1) Long term data 

include periods of startup and 

shutdown, where emissions are shown 

to be larger than during steady state 

operating conditions, (2) long term data 

allow the seasonal impacts of 

temperature and humidity on NOX

controls to be evenly distributed, as 

these factors often vary by the time of 

year and location, and (3) long term data 

include seasonal supply and demand 

cycles so that all factors that influence 

production are equally considered. 

We have concluded that SCR is BSER 

based on data showing lower emissions 

rates from SCR-controlled units. For 

more information, see Table 1 of this 

preamble and the related discussion. 

The fact that SCR is the only known 

NOX control technology being installed 

in new nitric acid production units, and 

that SCR has been determined to be 

BACT supports this conclusion. Further, 

SCR does not produce any secondary 

environmental impacts. 

The next step in the NSPS process is 

to establish an achievable standard 

using BSER. In assessing whether a 

standard is achievable, the EPA must 

account for routine operating variability 


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associated with performance of the 

system on which the standard is based. 

For each plant that submitted long-term 

CEMS data, these data cover the entire 

operating period including startups, 

shutdowns and malfunctions. To ensure 

that the new NOX standard is achievable 

by all properly designed and operated 

SCR units and covers all operating 

periods including startup and 

shutdowns, we analyzed the statistical 

variation by calculating the 99th 

percentile. When establishing an 

emissions limit (which is considered a 

never to exceed level of emissions), we 

use a 99th percentile based on statistical 

analyses. This approach accounts for 

short and long-term variability in 

emissions associated with all normal 

operating conditions, including startup 

and shutdown (see 72 FR 54878–79, 

September 27, 2007). This analysis is 

contained in the memorandum 

Statistical Evaluation of CEMS Data to 

Determine the NOX Emission Standard, 

dated July 18, 2011. 

Using the long term CEMS data 

received through the ICR, the EPA 

determined that there were sufficient 

data to directly calculate the 99th 

percentile for the best performing 

sources. The EPA determined that the 

CEMS represents long-term performance 

and accounts for long-term and day-today variability. 

Long term CEMS data were obtained 

from 3 plants using SCR and 2 plants 

using NSCR. The plant with HPI did not 

submit long term CEMS data. Following 

is a discussion of these data—the 3 

plants with SCR are discussed first 

followed by the 2 plants with NSCR. 

The 99th percentile was directly 

calculated for these 5 best performing 

sources. A summary of the values is 

shown in Table 1. 

TABLE 1—CEMS DATA—99TH PERCENTILE BY COMPLIANCE PERIOD

[lb of NOX/T of 100% nitric acid] 

Compliance period Control 15 minute hourly 3-hour 

rolling 

daily 

block 

7-day 

rolling 

30-day 

rolling 

PCS Geismar (Train 5) ............................................. SCR .................. 0.84 0.89 1.00 1.02 0.72 0.38 

Agrium North Bend ................................................... SCR .................. NA 0.69 0.80 1.67 0.92 0.50 

El Dorado Nitrogen ................................................... SCR .................. NA 0.47 0.47 0.44 0.40 0.37 

PCS Geismar (Train 4) ............................................. NSCR ............... 0.97 1.25 1.74 5.58 2.41 2.41 

Agrium Sacramento .................................................. NSCR ............... NA 2.13 NA 1.60 1.31 1.29 

The Agrium-North Bend plant 

submitted data spanning from January 

2010 through December 2010. The 

continuous data over the 12-month 

period show 0.50 lb NOX/ton acid as the 

99th percentile for each 30-day rolling 

time period. The 30-day periods with 

high NOX emissions occurred during 

periods of startup and shutdown. 

The PCS Geismar plant submitted 15- 

minute average data for Train 5 for 

2007–2009. Train 5 is controlled with 

SCR. The period spanning January 2009 

through December 2009 was analyzed. 

The continuous data from a 12-month 

period show 0.38 lb NOX/ton acid as the 

99th percentile for each 30-day rolling 

time period. 

The El Dorado plant submitted hourly 

averages data for the period of July 

2010–June 2011. The continuous data 

from a 12-month period show 0.37 lb 

NOX/ton acid as the 99th percentile for 

each 30-day rolling time period. 

We also received 15-minute average 

data on NOX emissions for 2007–2009 

from the PCS Geismar plant for Train 4, 

which is controlled with NSCR. The 

period spanning January 2009 through 

December 2009 was analyzed to be 

consistent with Train 5 (controlled with 

SCR). The continuous data from a 12- 

month period show 2.41 lb NOX/ton 

acid as the 99th percentile emissions 

level for a 30-day time period for train 

4. The result of this analysis is limited 

due to the fact that the nitric acid train 

was operational for approximately 65 

days during the 12-month period. It is 

unlikely that this short time period is 

representative of the NSCR performance 

over time. 

The Agrium-Sacramento plant 

submitted data spanning from January 

2010 through December 2010. The 

continuous data over the 12-month 

period show 1.29 lb NOX/ton acid as the 

99th percentile for a 30-day time period. 

The 30-day periods with high NOX

emissions occurred during periods of 

startup and shutdown. 

As shown by Table 1, all units are 

meeting the current Subpart G NOX

emission standard of 3.0 lb NOX/ton 

acid, regardless of the compliance 

period. We did not receive any long 

term data from the nitric acid train 

using HPI but the table shows that the 

NOX emissions from nitric acid trains 

using SCR are lower than nitric acid 

trains using NSCR. For example, 

reviewing the 99th percentile on a 30- 

day rolling basis, SCR data range from 

0.38 to 0.50 lb NOX/ton acid and NSCR 

data range from 1.29 to 2.41 lb NOX/ton 

acid. The lower emissions from SCR 

when compared to emissions from 

NSCR are the main reason that SCR has 

been determined as BSER. 

Whether NSCR can meet the levels 

achievable by SCR over a long term, is 

uncertain. The long term CEMS data 

from 2 NSCR plants indicate difficulty 

in meeting the 0.50 lb NOX/ton limit. 

However, we have monthly average data 

from 2 other facilities using NSCR. 

These plants with NSCR (Dyno NobelDeer Island and JR Simplot–Helm) 

submitted monthly block averages for a 

three year period. For 2009, the monthly 

block averages for both plants were very 

close and range from 7 to 17 ppm or 

approximately 0.15–0.36 lb NOX/ton 

acid. As these data are not continuous 

but rather block monthly averages, 

comparison of these with the CEMS data 

discussed above is not possible. These 

data are presented to show that NSCR 

may be able to achieve the proposed 

emission limit. Also, the data presented 

in the memorandum Summary of Test 

Data Received from Section 114 ICR, 

dated August 25, 2010 (updated 

December 17, 2010) show that low 

short-term NOX emissions rates are 

possible when using NSCR and HPI. 

For the units controlled by SCR, we 

have not been able to identify any 

specific factors associated with the El 

Dorado Nitrogen and PCS Nitrogen 

Train 5 units that account for the lower 

emission levels compared to the 

Agrium-North Bend unit. Thus, based 

on the information currently in the 

record, we believe that emission levels 

of NOX are not only dependent on the 

use of SCR but also on process factors 

that result in variability that cannot be 

avoided through better or different 

design or through changes in operating 

practices. 

By selecting an emission limit based 

on the 99th percentile of emissions data 

from unit with BSER (which is SCR), we 

ensure that this limit reflects BSER but 

is also achievable during all periods by 

facilities that have BSER equivalent 


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controls. The available data for units 

with BSER, which were used to derive 

the proposed NOX emissions limit for 

new, modified and reconstructed units, 

are from existing nitric acid units that 

have been in operation for at least 10 

years. Therefore, we believe that 

reconstructed, modified and new 

sources will be able to meet the 

proposed limit. We have no reason to 

believe that modified or reconstructed 

sources would not be able to meet this 

limit. Thus, we do not believe different 

standards are needed for modified or 

reconstructed sources. 

Moreover, in the past when 

companies chose to increase production 

or replace units, it is our understanding 

that they would build new production 

units rather than modify or reconstruct 

existing units. In fact, to our knowledge, 

no existing nitric acid production unit 

has been reconstructed or modified 

since Subpart G was promulgated. 

Therefore, we expect no reconstructions 

or modifications to occur for the nitric 

acid industry in the foreseeable future. 

Nevertheless, we request comment on 

any reconstructions or modifications to 

nitric acid production units that have 

taken place or information about any 

future plans to do such modifications or 

reconstructions. Also, we request data 

on the level of NOX emissions that these 

nitric acid units are able to achieve. If 

these emission levels are different than 

0.50 lb NOX/ton acid on a 30 day rolling 

basis, the commenter should include 

data to support the suggested emission 

level. 

Nevertheless, we expect that growth 

within the industry will be limited to 

newly constructed nitric acid 

production units. We believe that new 

nitric acid production units will be able 

to meet the proposed limit which takes 

into consideration routine operating 

variability as well as variation due to 

weather and periods of startups and 

shutdowns. The proposed emission 

limit of 0.50 lb NOX/ton acid is a never 

to exceed limit. We have not identified 

any specific process or technology that 

new nitric acid production units could 

employ to consistently meet an 

emission limit lower than 0.50 lb NOX/ 

ton acid. Therefore, we are proposing a 

limit of 0.50 lb NOX/ton acid for 

Subpart Ga. 

As part of our BSER analysis, we are 

proposing that the standard be stated as 

a rolling 30-day limit based on 30 

consecutive operating days and that the 

limit be met at all times including 

periods of startup and shutdown. We 

believe that the 0.50 lb NOX/ton acid 

standard is supported by existing source 

data. The use of a 30-day period 

accounts for peaks in the data that occur 

during startup and shutdown. These 

periods occur on average about 3 to 4 

hours per month and emissions during 

those periods are much higher than 

normal. Therefore, the 3 to 4 hour 

periods can affect average emissions 

beyond that 3 to 4 hour period. Setting 

the standard with a 30-day compliance 

period meets the statutory requirement 

that the standard reflect the degree of 

emission limitation that is achievable 

through BSER, including during periods 

that include startup and shutdown. 

Although the proposed 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. 

We request additional long-term data (in 

units of the standard) to determine 

whether NSCR and HPI can achieve the 

proposed limit. 

For all of the reasons discussed above, 

we are proposing 0.50 lb NOX/ton acid 

as the revised standard for Nitric Acid 

Plants to be established in Subpart Ga. 

Periods of Startup or Shutdown. In 

proposing the standards in this rule, the 

EPA has taken into account startup and 

shutdown periods and, for the reasons 

explained below, has not proposed 

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. Due to the relatively 

short duration of startup and shutdown 

events (generally a few hours) compared 

to normal steady-state operations, we 

believe that a 30-day emission rate 

calculated based on 30 consecutive 

operating days will allow affected 

sources to meet the 0.50 lb NOX/ton 

acid at all times, including periods of 

startup and shutdown. We request 

comment on the use of a 30-day 

emission rate calculated based on 30 

consecutive operating days. Further, we 

request comment on whether the 

standard should be set with a 

compliance period that is shorter (such 

as 24 hours). For any comment 

suggesting a shorter time period, the 

comment should explain why that 

different period is appropriate and 

include data supporting the different 

compliance period and how startup and 

shutdown would be factored into a 

shorter term limit. 

If you believe that the EPA’s 

conclusion is incorrect, or that the EPA 

has failed to consider any relevant 

information on this point, we encourage 

you to submit comments. In particular, 

we note that the general provisions in 

Part 60 require facilities to keep records 

of the occurrence and duration of any 

startup, shutdown or malfunction (40 

CFR 60.7(b)) and either report to the 

EPA any period of excess emissions that 

occurs during periods of startup, 

shutdown or malfunction (40 CFR 

60.7(c)(2)) or report that no excess 

emissions occurred (40 CFR 60.7(c)(4)). 

Thus, any comments that contend that 

sources cannot meet the proposed 

standard during startup and shutdown 

periods should provide data and other 

specifics supporting their claim. 

Periods of Malfunction. 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 and monitoring 

equipment, process equipment or a 

process to operate in a normal or usual 

manner * * *’’ (40 CFR 60.2). The EPA 

has determined that malfunctions 

should not be viewed as a distinct 

operating mode. Further, nothing in 

section 111 or in case law requires that 

the EPA anticipate and account for the 

innumerable types of potential 

malfunction events in setting emission 

standards. See, 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.’’) 

Further, it is reasonable to interpret 

section 111 as not requiring the EPA to 

account for malfunctions in setting 

emissions standards. For example, we 

note that section 111 provides that the 

EPA will set standards of performance 

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. 

Applying the concept of ‘‘the 

application of the best system of 

emission reduction’’ to periods during 

which a source is malfunctioning 

presents significant difficulties. The 

‘‘application of the best system of 

emission reduction’’ is more 

appropriately understood to include 

operating in such a way as to avoid 

malfunctions of their units. 

Moreover, even if malfunctions were 

considered a distinct operating mode, 

we believe it would be impracticable to 

take malfunctions into account in 

setting CAA section 111 standards for 

the nitric acid production units that will 


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be covered in the proposed Subpart Ga. 

As noted above, by definition, 

malfunctions are sudden and 

unexpected events and it would be 

difficult to set a standard that takes into 

account the myriad different types of 

malfunctions that can occur across all 

sources in the category. Moreover, 

malfunctions can vary in frequency, 

degree, and duration, further 

complicating standard setting. 

If the standard is stated as a 30-day 

emission rate calculated based on 30 

consecutive operating days, or some 

other time period, we believe that 

sources will be able to operate their 

plants in compliance with the standard 

even if they experience malfunctions. 

Also, excess emissions from a nitric acid 

production unit during a malfunction 

can frequently be mitigated or avoided 

by shutting the plant down if a key 

component fails. 

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 avoid 

malfunctions and to minimize 

emissions during malfunction periods, 

including preventative and corrective 

actions, as well as root cause analyses 

to ascertain and rectify excess 

emissions. 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 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 an 

exceedance of the relevant emission 

standard. (See, e.g., State 

Implementation Plans: Policy Regarding 

Excessive Emissions During 

Malfunctions, Startup, and Shutdown 

(Sept. 20, 1999); Policy on Excess 

Emissions During Startup, Shutdown, 

Maintenance, and Malfunctions (Feb. 

15, 1983)). The EPA is therefore 

proposing to add an affirmative defense 

to civil penalties for exceedances of 

emission limits 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 are proposing 

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 an 

exceedance of the emission limit meets 

the narrow definition of malfunction in 

40 CFR 60.2 (sudden, infrequent, not 

reasonably 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 excess emissions ‘‘[w]ere 

caused by a sudden, infrequent, and 

unavoidable failure of air pollution 

control and monitoring 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 the applicable emission 

limitations were being exceeded * * *’’ 

and that ‘‘[a]ll possible steps were taken 

to minimize the impact of the excess 

emissions 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 part 

22.77). 

B. How is the EPA proposing to revise 

the testing and monitoring 

requirements? 

The current NSPS requires an initial 

performance test, the installation of a 

continuous NOX monitor and the 

recording of the daily production rate 

and hours of operations. We are 

proposing that the new Subpart Ga also 

require the installation, operation, and 

maintenance of an exhaust gas flow rate 

monitor. The capital cost of this monitor 

is $39,000 and the total annualized cost 

for this monitor for a new nitric acid 

production unit is estimated to be 

$15,000. The gas flow rate monitor 

provides data on the volume of gas 

emitted per unit of time, and this 

information combined with the data 

from the NOx monitor will result in 

more accurate measurements of the total 

NOX being emitted. 

Subpart G currently requires that 

owners/operators of nitric acid 

production units conduct an initial 

performance test to demonstrate initial 

compliance with the NOX emission 

limit. The initial performance test is 

based on three one-hour test runs for 

NOX using manual testing methods; 

specifically, Method 7 (or, alternatively, 

Method 7A, 7B, 7C, or 7D) for NOX

concentration, and Method 2 for 

volumetric flow rate (40 CFR 60, 

appendix A–4). The nitric acid 

production rate also must be determined 

during the initial performance test so 

that the emissions can be calculated in 

terms of the emissions limit, lb NOX per 

ton of acid produced (100 percent acid 

basis). The current rule does not provide 

specific procedures or criteria for 

determining the production rate or 

concentration. 

The current NSPS also requires the 

owner/operator to install, calibrate, 

maintain and operate a CEMS for 

measuring NOX concentration (40 CFR 

60, appendix B, Performance 

Specification 2) to demonstrate 

continuing compliance. The owner/ 

operator is required to establish a 

conversion factor expressed as lb NOX

per ton acid produced per ppm NOX by 

comparing the CEMS data (ppm NOX) 

obtained during the performance test to 

the performance test results (lb NOX per 

ton of acid). The conversion factor is 

used to convert the CEMS concentration 

data into units of the emissions standard 

on an on-going basis. Subsequently, the 

owner/operator must report periods of 

excess emissions defined as any 3-hour 

period during which the average nitric 

acid emissions (arithmetic average of 

three contiguous 1-hour periods) as 

measured by the CEMS exceed the 

emissions standard. The owner/operator 

must reestablish the conversion factor 

during any subsequent performance test. 

As part of an ongoing effort to 

improve compliance with various 

federal air emission regulations, we are 

proposing to require use of a continuous 

compliance determination method 

(CCDM) for NOX for nitric acid 

production units subject to Subpart Ga. 

The proposed CCDM is a continuous 

emissions rate monitoring system 

(CERMS) comprised of the NOX CEMS 

and a continuous exhaust gas flow rate 

monitoring system. The CERMS would 

be required to meet the requirements of 

performance specification 6 (40 CFR 60, 

appendix B). 

Performance Specification 6 (PS6) 

provides performance criteria for the 

flow rate monitoring system and 

stipulates the overall performance 


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criteria for the monitoring system in 

terms of pollutant emissions rate (i.e., lb 

NOX/hour). PS6 refers to the criteria of 

performance specification 2 (PS2) for 

the NOX CEMS. Extractive Fourier 

Transform Infrared Spectroscopy (FTIR) 

is capable of measuring NOX through 

the requirements in Performance 

Specification 15 (PS15). The proposed 

regulation allows use of the FTIR CEMS 

for determining compliance with the 

NOX emissions limit, in lieu of a 

monitor meeting the requirements of 

PS2, at the discretion of the owner/ 

operator. 

This proposed rule would require the 

acid production rate to be determined 

on a daily basis. The daily NOX

emissions rate measured by the CERMS 

(lb) and the daily production rate (tons 

of acid per day) are used to calculate the 

emissions rates in units of the standard, 

lbs NOX per ton of acid. This proposed 

rule would provide options for 

measuring the production rate and 

stipulates a minimum accuracy 

requirement for the measurement 

equipment. This proposed rule also 

requires that the concentration of the 

produced nitric acid be tested daily. 

We are proposing that nitric acid 

production units subject to Subpart Ga 

will not be subject to an opacity 

standard; consequently no test or 

monitoring method for opacity is 

included in this proposed rule. Using 

the nitric acid production rate and 

concentration of the nitric acid, the NOX

concentration from the NOX CEMS, and 

the flow rate from the proposed flow 

monitor, the NOX emission rate in units 

of the standard (lb NOX/ton acid) can be 

determined at any point in time. 

Therefore, an opacity standard is not 

required as an additional method of 

demonstrating compliance with a NOX

emission limit. 

C. How is the EPA proposing to revise 

the notification, reporting, and 

recordkeeping requirements? 

The only recordkeeping requirements 

in the existing Subpart G are of daily 

production rate and hours of operation. 

The reporting requirements in the 

existing subpart G include reports of 

excess emissions and production rate. 

The frequency of reporting is 

semiannually as specified in 60.7(c). 

Reporting and recordkeeping 

requirements are being proposed as 

separate sections for Subpart Ga. 

Owners/operators subject to Subpart Ga 

must keep records of all performance 

tests and results; and dated daily 

records of hours of operation, nitric acid 

production rate, and nitric acid 

concentration; explanations for periods 

of noncompliance and corrective actions 

taken; span exceedances; and any 

modifications to CERMS which could 

affect the ability of the CERMS to 

comply with applicable performance 

specifications. 

Owners/operators must report all 

performance tests and results; dated 

daily records of NOX emission rates that 

exceed the standard, explanations for 

periods of noncompliance and 

corrective actions taken, span 

exceedances, and any modifications to 

CERMS which could affect the ability of 

the CERMS to comply with applicable 

performance specifications; and RATA 

(i.e., from the initial certification) and 

performance test data. The frequency of 

reporting for Subpart Ga is the same as 

for Subpart G. 

V. Summary of Cost, Environmental, 

Energy, and Economic Impacts of These 

Proposed 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 new nitric 

acid production units? 

We are presenting estimates of the 

impacts for the proposed 40 CFR part 

60, Subpart Ga that change the 

performance standards for new nitric 

acid production units. The cost, 

environmental, and economic impacts 

presented in this section are expressed 

as incremental differences between the 

impacts of nitric acid production units 

complying with the proposed Subpart 

Ga and the current NSPS requirements 

of Subpart G (i.e., baseline). The impacts 

are presented for future nitric acid 

production units that commence 

construction, reconstruction, or 

modification over the 5 years following 

promulgation of the revised NSPS. Costs 

are based on 2nd quarter of 2010. 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 proposed rule, we first 

estimated the number of new nitric acid 

production units that would become 

subject to regulation during the five year 

period after promulgation of subpart Ga. 

Based on existing nitric acid production 

units and estimated future growth rates, 

6 new nitric acid production units are 

expected to be required to meet the 

nitric acid production demand in that 

five year period. For further detail on 

the methodology of these calculations, 

see memorandum Impacts of Nitric Acid 

NSPS Review—NOX, dated December 

15, 2010, in Docket ID No. EPA–HQ– 

OAR–2010–0750. 

The proposed Subpart Ga NOX

emission limit reflects the use of control 

technologies currently in use by the 

industry and reflects an adjustment of 

the limit to more accurately reflect the 

performance of these control 

technologies. The current Subpart G 

NSPS NOX emissions limit can be 

achieved using a number of control 

techniques including NSCR, SCR and 

HPI. In many cases, the air pollution 

control systems used to meet the current 

NSPS could be used to meet the 

proposed revised NOX emission limit 

for future affected facilities. 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 2,000 tons per year (tpy) 

NOX. This potential emission reduction 

may be overestimated because the 

majority of control systems installed on 

future affected facilities would likely 

result in emissions at or below the 

proposed emissions limit even in the 

absence of these proposed revisions. 

There are many existing nitric acid 

production units currently meeting 0.50 

lb NOX/ton acid. Therefore, there is no 

increase in control costs of meeting the 

proposed emission limit of 0.50 lb NOX/ 

ton acid for new nitric acid production 

units compared to the control costs to 

comply with subpart Ga. The only costs 

incurred would be the installation of an 

air flow monitor, which is discussed 

below. 

There are differences in notification, 

testing, monitoring, reporting, and 

recordkeeping (MRR) between Subpart 

G and the new Subpart Ga that result in 

increased costs. We are proposing the 

use of a CERMS for monitoring 

compliance with Subpart Ga. The 

CERMS requires the installation of both 

a continuous NOX monitor and 

continuous exhaust gas flow rate 

monitor. The current NSPS (subpart G) 

requires only the installation of a 

continuous NOX monitor. The 

installation, operation, and maintenance 

of an exhaust gas flow rate monitor will 

increase the cost to nitric acid 

production units over what would be 

incurred to comply with subpart G. We 

estimate that the total increase in 

nationwide annual cost associated with 

this proposed monitoring revision is 

$90,110 for all six of the new 

production units projected to be built 

from 2011 to 2016. 

The estimated nationwide 

incremental 5-year NOX emissions 

reductions and cost impacts for these 

proposed revisions are summarized in 

Table 2 of this preamble. The 

methodology is detailed in the 

memorandum Impacts of Nitric Acid 


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63886 Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 

NSPS Review—NOX, dated December 

13, 2010 (updated July 27, 2011). The 

overall cost effectiveness is about $45 

per ton of NOX removed. 

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

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

Proposed revisions for future affected facilities 

Total annualized 

cost 

[$1,000/yr] 

Potential annual 

NOX emission 

reductions 

[tons NOX/yr] 

Potential cost 

effectiveness 

[$/ton NOX] 

Revisions to NOX emission limit ...................................................................................... $0 2,000 $0.00 

Revisions to MRR requirements ...................................................................................... 90 

Total .......................................................................................................................... 90 2,000 45 

B. What are the secondary impacts for 

new 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 proposed rule. In most cases, 

to comply with the current Subpart G 

NOX emission limit or this Subpart Ga 

NOX emission limit, the same control 

system (SCR, NSCR, or HPI) would have 

been installed. These proposed 

revisions only require the addition of 

exhaust gas flow monitors, which would 

result in minimal secondary air impacts 

or increase in overall energy demand. 

C. What are the economic impacts for 

new nitric acid production units? 

We performed an economic impact 

analysis that estimates changes in prices 

and output for nitric acid production 

units nationally using the annual 

compliance costs estimated for this 

proposed 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 proposed rule are slightly higher 

product prices and slightly lower 

outputs. Prices for products (nitric acid) 

from affected plants should increase by 

less than 0.07 percent for the fifth year. 

The output of nitric acid should 

decrease by less than 0.50 percent for 

the fifth year. Hence, the overall 

economic impact of this proposed NSPS 

should be low on the affected industries 

and their consumers. For more 

information, please refer to the 

Economic Impact Analysis for this 

proposed rulemaking in the public 

docket. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

significant regulatory action because it 

could raise novel legal or policy issues. 

Accordingly, the EPA submitted this 

action to the Office of Management and 

Budget for review under Executive 

Order 12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed 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 Request (ICR) 

document prepared by the EPA has been 

assigned the EPA ICR number [2445.01]. 

These proposed revisions to the 

existing new source performance 

standards for nitric acid production 

units would add monitoring 

requirements for future affected 

facilities. We have revised the ICR for 

the existing rule. 

These proposed revisions to the new 

source performance standards for nitric 

acid production units 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 monitoring the nitric acid 

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. 

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 $91,808 per year. The annualized 

capital costs are estimated at $19,288 

per year. The annualized operation and 

maintenance (O&M) costs are $23,488. 

The total annualized capital and O&M 

costs are $42,776 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. 

To comment on the agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, the EPA has 

established a public docket for this rule, 

which includes this ICR, under Docket 

ID number EPA–HQ–OAR–2010–0750. 

Submit any comments related to the ICR 

to the EPA and OMB. See ADDRESSES

section at the beginning of this notice 

for where to submit comments to the 

EPA. Send comments to OMB at the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, 725 17th Street, NW., 

Washington, DC 20503, Attention: Desk 

Office for the EPA. Since OMB is 

required to make a decision concerning 

the ICR between 30 and 60 days after 

October 14, 2011, a comment to OMB is 

best assured of having its full effect if 

OMB receives it by November 14, 2011. 

The final rule will respond to any OMB 


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or public comments on the information 

collection requirements contained in 

this proposal. 

C. Regulatory Flexibility Act 

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 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed rule on small 

entities, I certify that this 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 

proposed rule. We estimate that all 

affected small entities will have 

annualized costs of less than 0.3 percent 

of their sales. We conclude that there is 

no significant economic impact on a 

substantial number of small entities 

(SISNOSE) for this rule. 

For more information on the small 

entity impacts associated with this 

proposed rule, please refer to the 

Economic Impact and Small Business 

Analyses in the public docket. Although 

this proposed 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 proposed 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. We 

continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

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 

proposed rule for affected industrial 

sources is $90,010/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 proposed 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 

proposed 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 proposed rule imposes 

requirements on owners and operators 

of nitric acid production units and not 

tribal governments. We do not know of 

any nitric acid production units owned 

or operated by Indian tribal 

governments. However, if there are any, 

the effect of this proposed 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. The 

EPA specifically solicits additional 

comment on this proposed rule from 

tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

13045 (62 FR 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. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

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

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 proposed rulemaking involves 

technical standards. The EPA proposes 

to use: ASTM D6348–03, Standard Test 

Method for Determination of Gaseous 

Compounds by Extractive Direct 

Interface Fourier Transform Infrared 

(FTIR) Spectroscopy, and ASTM E1584, 

Standard Test Method for Assay of 

Nitric Acid, which have been 

incorporated by reference. 

The EPA welcomes comments on this 

aspect of the proposed rulemaking and 

specifically invites the public to identify 


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potentially applicable voluntary 

consensus standards and to explain why 

such standards should be used in this 

regulation. 

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 

proposed 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 

general population is not appropriate for 

this rulemaking due to lack of pollutants 

with localized effects. 

List of Subjects in 40 CFR Part 60 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements, Incorporation by 

reference. 

Dated: September 30, 2011. 

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. 

Subpart A—[Amended] 

2. Section 60.17 is amended by 

revising paragraph (a)(82) and adding 

paragraph (a)(93) 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, IBR approved for 

§ 60.73a(f)(2) of subpart Ga, table 7 of 

subpart IIII of this part, and table 2 of 

subpart JJJJ of this part. 

* * * * * 

(93) ASTM E1584–00(2005)e1, 

Standard Test Method for Assay of 

Nitric Acid, IBR approved for 

§ 60.73a(b)(2) of subpart Ga. 

* * * * * 

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 Subpart G. Any facility 

that commences construction or 

modification after October 14, 2011 is 

subject to Subpart Ga. 

* * * * * 

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 Exceedance 

of Emission Limit 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 on or 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. 

(a) 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. 

(b) Nitric acid production unit means 

any facility producing weak nitric acid 

by either the pressure or atmospheric 

pressure process. 

(c) Operating day means a 24-hour 

period beginning at 12:00 a.m. during 

which the nitric acid production unit at 

any time during this period. 

(d) Weak nitric acid means acid 

which is 30 to 70 percent in strength. 

§ 60.72a Standards. 

(a) Nitrogen oxides. On and after the 

date on which the performance test 

required to be conducted by § 60.73a(a) 

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. 

(b) General Duty to minimize 

emissions. At all times, the owner or 

operator must operate and maintain any 

affected source, including associated air 

pollution control equipment and 

monitoring equipment, in a manner 

consistent with safety and good air 

pollution control practices for 

minimizing emissions. Determination of 

whether such operation and 

maintenance procedures are being used 

will be based on information available 

to the Administrator which may 

include, but is not limited to, 

monitoring results, review of operation 

and maintenance procedures, review of 

operation and maintenance records, and 

inspection of the source. 

§ 60.73a Emissions testing and 

monitoring. 

(a) Nitric acid production monitoring. 

(1) For any affected facility, you must 

determine the daily 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 


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and record the weight rates of nitric acid 

produced in tons per day. You must 

verify that each component of the 

monitoring system has an accuracy and 

precision of no more than ±5 percent of 

full scale. 

(2) You may analyze product 

concentration via titration or by 

determining the temperature and 

specific gravity of the nitric acid. You 

may also use ASTM E1584–00(2005)e1 

(incorporated by reference, see § 60.17), 

for determining the concentration of 

nitric acid in percent. You must 

determine product concentration daily. 

(3) For any affected facility, you must 

use the acid concentration to express 

the daily nitric acid production as 100 

percent nitric acid. 

(4) For any affected facility, you must 

record the daily nitric acid production, 

expressed as 100 percent nitric acid, 

and the hours of operation. 

(b) Nitrogen oxides continuous 

emissions monitoring system. (1) You 

must install, calibrate, maintain, and 

operate a continuous emission rate 

monitoring system (CERMS) for 

measuring and recording the mass 

emissions of NOX in accordance with 

the provisions of 60.13 and Performance 

Specifications 2 and 6 of appendix B of 

this part. The CERMS must consist of 

equipment for measuring NOX

concentration and stack gas volumetric 

flow rate monitoring equipment for 

measuring the volumetric flow rate and 

for calculating and reporting hourly and 

daily NOX mass emissions rates in units 

of lb/hour and lb NOX/ton of 100% 

nitric acid. 

(2) As applicable, use a span value, as 

defined in Performance Specification 2 

§ 3.11, for all NOX concentration 

monitoring equipment equal to 125 

percent of the maximum estimated NOX

emission concentration. 

(3) You must conduct performance 

evaluations of the NOX CERMS 

according to the requirements in 

§ 60.13(c) and Performance 

Specifications 2 and 6 of appendix B of 

this part. For conducting the relative 

accuracy evaluations, per § 8.4 of the 

Performance Specification 2, 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). 

(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 (a)(4)(i), (ii), or (iii) of this 

section and verify performance by 

conducting the system bias checks 

required in § 8 of EPA Reference 

Method 7E 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 § 16.1 in EPA 

Reference Method 7E of appendix A–4 

of this part using NO2 as the spike gas. 

(5) You must use stack gas flow rate 

measurement equipment with a full 

scale output of at least 125 percent of 

the maximum expected exhaust 

volumetric flow rate (see § 8 of 

Performance Specification 6, Appendix 

B, of this part). 

(d) CERMS Quality Assurance and 

Quality Control. 

(1) The CERMS must comply with the 

quality assurance requirements in 

Procedure 1 of Appendix F of this part. 

You must use cylinder gas audits to 

fulfill the quarterly auditing 

requirement at Appendix F, Procedure 

1, § 5.1 of this part only on the NOX

concentration measurement equipment. 

You must conduct relative accuracy 

testing to provide for calculating the 

relative accuracy for RATA and RAA 

determinations in units of lb/hour and 

lb NOX/ton nitric acid. 

(2) You must determine daily 

calibration drift assessments separately 

for each analyzer in terms of its specific 

measurement. You must perform the 

daily assessments in accordance with 

the procedures specified in §§ 8.1 and 

13.1 of Performance Specification 6 of 

appendix B of this part. 

(3) Should you apply an FTIR CEMS 

meeting the requirements of 

Performance Specification 15, Appendix 

B of this part, 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 

§§ 11.1.1 and 12.0 of Performance 

Specification 15 of appendix B of this 

part. 

(e) For each CERMS, including NOX

concentration measurement, volumetric 

flow rate measurement, and nitric acid 

production measurement equipment, 

you must meet the requirements in 

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

section. 

(1) You must operate the CERMS and 

collect data at all required intervals at 

all times the affected source is operating 

except for periods of monitoring system 

malfunctions or out-of-control periods 

as defined in Appendix F, §§ 4 and 5, 

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. A 

monitoring system malfunction is any 

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 affect monitoring 

system repairs in response to 

monitoring system malfunctions or outof-control periods, and to return the 

monitoring system to operation as 

expeditiously as practicable. 

(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). 

(3) Except for periods of monitoring 

system malfunctions or out-of-control 

periods, repairs associated with 

monitoring system malfunctions or outof-control periods, and required 

monitoring system quality assurance or 

quality control activities including, as 

applicable, calibration checks and 

required zero and span adjustments, 

failure to collect required data is a 

violation of the monitoring 

requirements. 

(f) Initial Performance Testing. You, 

as the owner or operator of a new unit, 

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


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and flow rate monitoring CEMS. The 

initial performance test consists of 

collection of hourly NOX average 

concentration, mass flow rate (SCFH) 

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 

Exceedance of Emission Limit During 

Malfunction. 

In response to an action to enforce the 

standards set forth in paragraph 

§ 60.72a, you may assert an affirmative 

defense to a claim for civil penalties for 

exceedances 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 

limit, you must timely meet the 

notification requirements in paragraph 

(b) of this section, and must prove by a 

preponderance of evidence that: 

(1) The excess emissions: 

(i) Were caused by a sudden, 

infrequent, and unavoidable failure of 

air pollution control and monitoring 

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) Were not part of a recurring 

pattern indicative of inadequate design, 

operation, or maintenance; and 

(2) Repairs were made as 

expeditiously as possible when the 

applicable emission limitations were 

being exceeded. Off-shift and overtime 

labor were used, to the extent 

practicable to make these repairs; and 

(3) The frequency, amount and 

duration of the excess emissions 

(including any bypass) were minimized 

to the maximum extent practicable 

during periods of such emissions; and 

(4) If the excess emissions 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 excess 

emissions 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 excess emissions were documented 

by properly signed, contemporaneous 

operating logs; and 

(8) At all times, the 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 excess emissions resulting from the 

malfunction event at issue. The analysis 

shall also specify, using best monitoring 

methods and engineering judgment, the 

amount of excess emissions that were 

the result of the malfunction. 

(b) Notification. The owner or 

operator of the facility experiencing an 

exceedance of its emission limit(s) 

during a malfunction shall notify the 

Administrator by telephone or facsimile 

(FAX) transmission as soon as possible, 

but no later than two business days after 

the initial occurrence of the 

malfunction, if it wishes to avail itself 

of an affirmative defense to civil 

penalties for that malfunction. The 

owner or operator seeking to assert an 

affirmative defense shall also submit a 

written report to the Administrator 

within 45 days of the initial occurrence 

of the exceedance of the standard in 

§ 60.72a to demonstrate, with all 

necessary supporting documentation, 

that it has met the requirements set forth 

in paragraph (a) of this section. The 

owner or operator may seek an 

extension of this deadline for up to 30 

additional days by submitting a written 

request to the Administrator before the 

expiration of the 45 day period. Until a 

request for an extension has been 

approved by the Administrator, the 

owner or operator is subject to the 

requirement to submit such report 

within 45 days of the initial occurrence 

of the exceedance. 

§ 60.75a Calculations. 

(a) The 30-day rolling NOX emission 

rate is calculated as the sum of all daily 

NOX mass emissions recorded by the 

CERMS for 30 consecutive operating 

days divided by the sum of nitric acid 

production for these 30 consecutive 

operating days. Calculate and record the 

daily mass emissions of NOX according 

to the procedures in paragraphs (a)(1) 

through (4) of this section. 

(1) You must calculate the daily mass 

emissions according to Equation 1: 

Where: 

Md = daily mass emissions of NOX as NO2, 

lb NOX. 

Ci = concentration of NOX for hour i, lb/ 

standard cubic foot (scf). 

Qi = volumetric flow rate of effluent gas for 

hour i, scf/hour. 

n = number of operating hours in the 

operating day. 

(2) For any operating day where 

monitoring data are only available for 

part of the hours where nitric acid is 

produced during that day due to CERMS 

malfunctions, out-of-control periods, or 

repairs associated with monitoring 

system malfunctions or out-of-control 

periods, you must calculate Md for the 

periods where monitoring data are 

available using Equation 1 in (a)(1) 

above, and then adjust upwards overall 

operating hours on a pro rata basis. 

(3) You must ensure appropriate 

corrections for moisture are made when 

measuring flow rates. 

(4) Following each calendar day on 

which the affected facility was operated, 

you must calculate the 30-day NOX

emission rate according to Equation 2: 

Where: 

E30-day = emission rate of NOX as NO2

calculated based on 30 consecutive 

operating days, lb NOX/ton of 100 

percent nitric acid. 

Md = daily mass emissions of NOX as NO2 for 

operating day d, lb NOX

Pd = daily nitric acid production for 

operating day d, tons of 100 percent 

nitric acid. 

m = number of days in the 30-day 

compliance period for which CERMS 

data is available. 

§ 60.76a Recordkeeping. 

(a) For the NOX emissions rate, you 

must keep records of the performance 

test data from the initial and subsequent 

performance tests and from the 

performance evaluation of the 

continuous monitors. 


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Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Proposed Rules 63891 

(b) You must maintain records of the 

following information for each 30 day 

period: 

(1) Hours of operation. 

(2) Production rate of nitric acid, 

expressed as 100 percent nitric acid. 

(3) NOX mass emissions. 

(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 pollutant monitoring equipment. 

(3) Times when the volumetric flow 

rate exceeded the high value of the 

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 CERMS which could 

affect the ability of the CERMS 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 section 

60.72a(b), 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 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 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) As of December 31, 2011 and 

within 60 days after the date of 

completing each performance 

evaluation or test required under this 

subpart, you must submit the relative 

accuracy test audit data and 

performance test data by successfully 

submitting the data electronically to 

EPA’s Central Data Exchange (CDX) by 

using the Electronic Reporting Tool 

(ERT) (see http://www.epa.gov/ttn/chief/ 

ert/ert_tool.html/). 

(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 source to 

minimize emissions in accordance with 

60.72a(b), including actions taken to 

correct a malfunction. 

[FR Doc. 2011–26089 Filed 10–13–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

42 CFR Part 71 

[Docket No. CDC–2011–0007] 

RIN 0920–AA37 

Foreign Quarantine; Etiological 

Agents, Hosts, and Vectors 

AGENCY: Centers for Disease Control and 

Prevention (CDC), Department of Health 

and Human Services (HHS). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Centers for Disease 

Control and Prevention (CDC) within 

the U.S. Department of Health and 

Human Services (HHS) is issuing this 

Notice of Proposed Rulemaking (NPRM) 

to revise the regulations that cover the 

importation of etiological agents and the 

hosts and vectors of human disease. The 

changes are proposed to improve CDC’s 

ability to prevent the introduction, 

transmission, or spread of 

communicable diseases into the United 

States. 

DATES: To be assured consideration, 

comments must be received on or before 

December 13, 2011. Comments received 

after the close of the comment period 

will be considered to the fullest extent 

possible. 

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 0920–AA37 in the 

heading of this document, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: SAPcomments@cdc.gov. 

Please include the RIN number in the 

subject line of the message. 

• Fax: 404–718–2093. 

• Mail: Division of Select Agents and 

Toxins, Centers for Disease Control and 

Prevention, ATTN: Importation 

Regulations, 1600 Clifton Road, NE., MS 

A–46, Atlanta, Georgia 30333. 

• Hand Delivery/Courier: Division of 

Select Agents and Toxins, Centers for 

Disease Control and Prevention, ATTN: 

Importation Regulations, 1600 Clifton 

Road, NE., MS A–46, Atlanta, Georgia 

30333. 

Instructions: All submissions received 

must include the agency name and RIN 

for this rulemaking. All relevant 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received or to download an 

electronic version of the NPRM, go to 

http://www.regulations.gov. Comments 

will be available for public inspection 

Monday through Friday, except for legal 

holidays, from 9 a.m. until 5 p.m. at 

1600 Clifton Road, NE., Atlanta, GA 

30333. Please call ahead to 1–866–694– 

4867 and ask for a representative in the 

Division of Select Agents and Toxins to 

schedule your visit. Our general policy 

for comments and other submissions 

from members of the public is to make 

these submissions available for public 

viewing on the Internet as they are 

received and without change. 

FOR FURTHER INFORMATION CONTACT: 

Robbin Weyant, PhD, Director, Division 

of Select Agents and Toxins, Centers for 

Disease Control and Prevention, 1600 

Clifton Road, NE., MS A–46, Atlanta, 

GA 30333. Telephone: 404–718–2000. 

SUPPLEMENTARY INFORMATION: The 

Preamble to this notice of proposed 

rulemaking is organized as follows: 

I. Background 

A. HHS/CDC Authority 

II. Proposed Changes to 42 CFR 71.54 

A. Section Heading & Definitions 

B. Biosafety and Inspection Provisions 


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