
[Federal Register Volume 77, Number 157 (Tuesday, August 14, 2012)]
[Rules and Regulations]
[Pages 48433-48448]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19691]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2010-0750; FRL-9667-3]
RIN 2060-AQ10


New Source Performance Standards Review for Nitric Acid Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing the new source performance standards 
(NSPS) for nitric acid plants. Nitric acid plants include one or more 
nitric acid production units (NAPUs). These revisions include a change 
to the nitrogen oxides (NOX) emission limit, which applies 
to each NAPU commencing construction, modification, or reconstruction 
after October 14, 2011. These revisions also include additional testing 
and monitoring requirements.

DATES: This final rule is effective on August 14, 2012. The 
incorporation by reference of certain publications listed in this rule 
is approved by the Director of the Federal Register as of August 14, 
2012.

ADDRESSES: Docket: The docket for this action is identified by Docket 
ID No. EPA-HQ-OAR-2010-0750. All documents in the docket are listed in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available (e.g., CBI or other information 
whose disclosure is restricted by statute). Certain other material, 
such as copyrighted material, will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the EPA 
Docket Center, Public Reading Room, EPA West, Room 3334, 1301 
Constitution Ave. NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.

FOR FURTHER INFORMATION CONTACT: For questions about these standards 
for nitric acid plants, contact Mr. Nathan Topham, Sector Policies and 
Program Division, Office of Air Quality Planning and Standards (D243-
02), Environmental Protection Agency, Research Triangle Park, North 
Carolina 27711, telephone number (919) 541-0483; fax number (919) 541-
3207, email address: topham.nathan@epa.gov.

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:
I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document?
    C. Judicial Review
II. Background Information
    A. What is the statutory authority for this final NSPS?
    B. History of the NSPS for Nitric Acid Plants
III. Summary of the Final NSPS
    A. What source category is being regulated?
    B. What pollutants are emitted from these sources?
    C. What are the final requirements for new nitric acid 
production units?
IV. Summary of Significant Changes Since Proposal
    A. How is the EPA revising the proposed emissions limit for 
affected facilities?
    B. How is the EPA revising the testing and monitoring 
requirements that were proposed for Subpart Ga of Part 60?
    C. How is the EPA revising the notification, reporting, and 
recordkeeping requirements that were proposed for Subpart Ga?
V. Summary of Significant Comments and Responses to the Proposed 
NSPS
VI. Summary of Cost, Environmental, Energy, and Economic Impacts of 
These Standards
    A. What are the impacts for Nitric Acid Production Units?
    B. What are the secondary impacts for Nitric Acid Production 
Units?
    C. What are the economic impacts for Nitric Acid Production 
Units?
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act as Amended by the Small Business 
Regulatory Enforcement Fairness Act (RFA) of 1996 (SBREFA), 5 U.S.C. 
601 et seq.
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. General Information

A. Does this action apply to me?

    Categories and entities potentially regulated by these revisions 
include:

----------------------------------------------------------------------------------------------------------------
             Category              NAICS code \1\                  Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Industry.........................          325311  Nitrogenous Fertilizer Manufacturing.
Federal government...............  ..............  Not affected.
State/local/tribal government....  ..............  Not affected.
----------------------------------------------------------------------------------------------------------------
\1\ North American Industrial Classification System.


[[Page 48434]]

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether your facility would be regulated by this 
action, you should examine the applicability criteria in 40 CFR 60.70a. 
If you have any questions regarding the applicability of this final 
action to a particular entity, contact the person in the preceding FOR 
FURTHER INFORMATION CONTACT section.

B. Where can I get a copy of this document?

    In addition to being available in the docket, an electronic copy of 
the final action is available on the Worldwide Web (WWW) through the 
Technology Transfer Network (TTN) Web site. Following signature, EPA 
posted a copy of the final action on the TTN Web site's policy and 
guidance page for newly proposed or promulgated rules at www.epa.gov/ttn/oarpg. The TTN Web site provides information and technology 
exchange in various areas of air pollution control.

C. Judicial Review

    Under CAA section 307(b)(1), judicial review of this final rule is 
available only by filing a petition for review in the U.S. Court of 
Appeals for the District of Columbia Circuit by October 15, 2012.
    Under CAA section 307(d)(7)(B), only an objection to this final 
rule that was raised with reasonable specificity during the period for 
public comment (including any public hearing) can be raised during 
judicial review. This section also provides a mechanism for the EPA to 
convene a proceeding for reconsideration, ``[i]f the person raising an 
objection can demonstrate to the Administrator that it was 
impracticable to raise such objection within [the period for public 
comment] or if the grounds for such objection arose after the period 
for public comment (but within the time specified for judicial review) 
and if such objection is of central relevance to the outcome of the 
rule[.]'' Any person seeking to make such a demonstration to us should 
submit a Petition for Reconsideration to the Office of the 
Administrator, Environmental Protection Agency, Room 3000, Ariel Rios 
Building, 1200 Pennsylvania Ave. NW., Washington, DC 20004, with a copy 
to the person listed in the preceding FOR FURTHER INFORMATION CONTACT 
section, and the Associate General Counsel for the Air and Radiation 
Law Office, Office of General Counsel (Mail Code 2344A), Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20004. 
Note, under CAA section 307(b)(2), the requirements established by this 
final rule may not be challenged separately in any civil or criminal 
proceedings brought by EPA to enforce these requirements.

II. Background Information

A. What is the statutory authority for this final NSPS?

    New source performance standards (NSPS) implement Clean Air Act 
(CAA) section 111(b), and are issued for categories of sources which 
cause, or contribute significantly to, air pollution which may 
reasonably be anticipated to endanger public health or welfare. Section 
111 of the CAA requires that NSPS reflect the application of the best 
system of emission reductions which (taking into consideration the cost 
of achieving such emission reductions, any nonair quality health and 
environmental impact and energy requirements) the Administrator 
determines has been adequately demonstrated.
    This level of control has sometimes been referred to as ``best 
demonstrated technology'' or BDT. In order to better reflect that, CAA 
section 111 was amended in 1990 to clarify that ``best systems'' may or 
may not be ``technology,'' the EPA is now using the term ``best system 
of emission reduction'' or BSER. In assessing whether a standard is 
achievable, EPA must account for routine operating variability 
associated with performance of the system on whose performance the 
standard is based. See National Lime Ass'n v. EPA, 627 F. 2d 416, 431-
33 (DC Cir. 1980).
    Common sources of information as to what constitutes a BSER, and 
for assessing that technology's level of performance, include test data 
collected during development of proposed rules, best available control 
technology (BACT) determinations made as part of new source review 
(NSR), emissions limits that exist in state and federal permits for 
recently permitted sources, and emissions test data for demonstrated 
control technologies collected for compliance demonstration or other 
purposes. EPA compares permit limitations and BACT determination data 
with actual performance test data to identify any site-specific factors 
that could influence general applicability of this information. Also, 
as part of this review we evaluate if NOX emissions limits 
more stringent than those in Subpart G have been established, or if 
emissions limits have been developed for additional air pollutants.
    New source performance standards implement CAA section 111(b), and 
are issued for categories of sources which cause, or contribute 
significantly to, air pollution which may reasonably be anticipated to 
endanger public health or welfare. The primary purpose of the NSPS is 
to attain and maintain ambient air quality by ensuring that the best 
demonstrated emission control technologies are installed as the 
industrial infrastructure is modernized, when it is most cost effective 
to build in controls. Since 1970, the NSPS have been successful in 
achieving long-term emissions reductions in numerous industries by 
assuring that cost-effective controls are installed on new, 
reconstructed, or modified sources. Section 111(b)(1)(B) of the CAA 
requires EPA to periodically review and revise the standards of 
performance, as necessary, to reflect improvements in methods for 
reducing emissions.
    Existing affected NAPUs that are modified or reconstructed would 
also be subject to these revisions for affected facilities. Under CAA 
section 111(a)(4), ``modification'' means any physical change in, or 
change in the method of operation of, a stationary source which 
increases the amount of any air pollutant emitted by such source or 
which results in the emission of any air pollutant not previously 
emitted. Changes to an existing NAPU that do not result in an increase 
in emissions are not considered modifications.
    Rebuilt affected NAPUs would become subject to the standards under 
the reconstruction provisions, regardless of changes in emission rate. 
Reconstruction means the replacement of components of an existing NAPU 
such that (1) the fixed capital cost of the new components exceeds 50 
percent of the fixed capital cost that would be required to construct a 
comparable entirely new NAPU; and (2) it is technologically and 
economically feasible to meet the applicable standards (40 CFR 60.15).

B. History of the NSPS for Nitric Acid Plants

    The NSPS for Nitric Acid Plants (40 CFR part 60, Subpart G) were 
promulgated in the Federal Register on December 23, 1971 (36 FR 24881). 
The first review of the Nitric Acid Plants NSPS was completed on June 
19, 1979 (44 FR 35265). An additional review was completed on April 5, 
1984 (49 FR 13654). No changes were made to the NSPS as a result of 
those reviews. Minor testing and monitoring changes were made during 
three reviews since the original promulgation in 1971 (October 6, 1975 
(40 FR 46258), April 22, 1985 (50 FR 15894), and February 14, 1989 (54 
FR 6666)). Subpart G applies to each NAPU constructed or modified after

[[Page 48435]]

August 17, 1971, and on or before October 14, 2011. Subpart G has an 
emissions limit of 3.0 lb of NOX per ton of 100 percent 
nitric acid produced (based on any 3-hour average) and a 10 percent 
opacity standard as an additional method of demonstrating compliance 
with the NOX emission limit. Continuous NOX 
monitors are required as well as recording daily production rates.

III. Summary of the Final NSPS

A. What source category is being regulated?

    Today's standards (Subpart Ga) apply to new NAPUs. The affected 
facility under the final NSPS is each NAPU. Nitric acid plants may 
include one or more NAPUs. A new NAPU is defined as a NAPU for which 
construction, modification, or reconstruction commences after October 
14, 2011.
    For purposes of these final regulations, a NAPU is defined as any 
facility producing weak nitric acid by either the pressure or 
atmospheric pressure process. This definition has not changed from 
Subpart G.

B. What pollutants are emitted from these sources?

    The pollutant to be regulated under section 111(b) in today's 
action, for new NAPUs, is NOX, which undergoes reactions in 
the atmosphere to form particulate matter and ozone. Nitrogen oxides, 
particulate matter, and ozone are all criteria pollutants that are 
subject to national ambient air quality standards under section 109 of 
the Clean Air Act, based on their adverse effects to human health and 
welfare.
    These NAPUs also emit another nitrogen compound known as nitrous 
oxide (N2O), which is considered a greenhouse gas (GHG). We 
are not taking final agency action with respect to a GHG emission 
standard in this action. The EPA is in the process of gathering and 
analyzing additional data on GHG emissions from NAPUs that will allow 
the Agency to continue working towards a proposal for GHG standards for 
nitric acid plants.

C. What are the final requirements for new nitric acid production 
units?

    As proposed, and after consideration of the comments we received, 
we are reducing the NOX emissions limit from 3.0 pounds of 
NOX (expressed as NO2) per ton of 100 percent 
nitric acid produced (lb NOX/ton acid) to 0.50 lb 
NOX/ton acid as a 30 operating day emission rate calculated 
each operating day based on the previous 30 operating days.
    The general provisions in 40 CFR part 60 provide that emissions in 
excess of the level of the applicable emissions limit during periods of 
startup, shutdown, and malfunction shall not be considered a violation 
of the applicable emission limit unless otherwise specified in the 
applicable standard. See 40 CFR 60.8(c). The general provisions, 
however, may be amended for individual subparts. See 40 CFR 60.8(h). In 
today's action, the EPA is finalizing standards in Subpart Ga that 
apply at all times, including periods of startup or shutdown, and 
periods of malfunction.
    Periods of Startup or Shutdown. Consistent with Sierra Club v. EPA 
(551 F.3d 1019 (DC Cir. 2008)), the EPA has established standards in 
this rule that apply at all times. In revising the standards in this 
rule, the EPA has taken into account startup and shutdown periods and, 
for the reasons explained below, has not established different 
standards for those periods.
    According to information received from industry in the section 114 
ICR, NOX emissions during startup and shutdown are higher 
than during normal operations for some nitric acid plants. However, due 
to the relatively short duration of startup and shutdown events 
(generally a few hours per month) compared to normal steady-state 
operations, we conclude that a 30-day emission rate calculated based on 
30 operating days will allow affected facilities to meet the 0.50 lb 
NOX/ton acid at all times, including periods of startup and 
shutdown.
    If higher NOX emissions during periods of startup and 
shutdown are a concern, there are two types of equipment that can be 
used by affected facilities. These include startup heaters and hydrogen 
peroxide injection. Startup heaters are used to heat the SCR so that it 
can begin to reduce NOX during startups. Hydrogen peroxide 
injection, which is not applicable in all situations, can also be used 
to decrease NOX emissions in the extended absorption column.
    Periods of Malfunction. As explained in the preamble to the 
proposed rule, periods of startup, normal operations, and shutdown are 
all predictable and routine aspects of a source's operations. However, 
by contrast, malfunction is defined as a ``sudden, infrequent, and not 
reasonably preventable failure of air pollution control equipment, 
process equipment or a process to operate in a normal or usual manner * 
* *'' (40 CFR 60.2). As explained in more detail in the proposed rule, 
EPA has determined that CAA section 111 does not require that emissions 
that occur during periods of malfunction be factored into development 
of CAA section 111 standards.
    Further, accounting for malfunctions would be difficult, if not 
impossible, given the myriad different types of malfunctions that can 
occur across all sources in the category and given the difficulties 
associated with predicting or accounting for the frequency, degree, and 
duration of various malfunctions that might occur. As such, the 
performance of units that are malfunctioning is not ``reasonably'' 
foreseeable. See, e.g., Sierra Club v. EPA, 167 F. 3d 658, 662 (DC Cir. 
1999) (``[T]he EPA typically has wide latitude in determining the 
extent of data-gathering necessary to solve a problem. We generally 
defer to an agency's decision to proceed on the basis of imperfect 
scientific information, rather than to `invest the resources to conduct 
the perfect study.' ''). See also, Weyerhaeuser v. Costle, 590 F.2d 
1011, 1058 (DC Cir. 1978) (``In the nature of things, no general limit, 
individual permit, or even any upset provision can anticipate all upset 
situations. After a certain point, the transgression of regulatory 
limits caused by `uncontrollable acts of third parties,' such as 
strikes, sabotage, operator intoxication or insanity, and a variety of 
other eventualities, must be a matter for the administrative exercise 
of case-by-case enforcement discretion, not for specification in 
advance by regulation.''). In addition, accounting for malfunctions 
when setting standards of performance under section 111 which reflect 
the degree of emission limitation achievable through ``the application 
of the best system of emission reduction'' that the EPA determines is 
adequately demonstrated could lead to standards that are significantly 
less stringent than levels that are achieved by a well-performing non-
malfunctioning source. The EPA's approach to malfunctions is consistent 
with section 111 and is a reasonable interpretation of the statute.
    In the event that a source fails to comply with the applicable CAA 
section 111 standards as a result of a malfunction event, the EPA would 
determine an appropriate response based on, among other things, the 
good faith efforts of the source to minimize emissions during 
malfunction periods, including preventative and corrective actions, as 
well as root cause analyses to ascertain and rectify violations. The 
EPA would also consider whether the source's failure to comply with the 
CAA section 111 standard was, in fact, ``sudden, infrequent, not 
reasonably preventable'' and was not instead ``caused in part by poor 
maintenance or

[[Page 48436]]

careless operation.'' 40 CFR 60.2 (definition of malfunction).
    Finally, the EPA recognizes that even equipment that is properly 
designed and maintained can sometimes fail and that such failure can 
sometimes cause a violation of the relevant emission standard. The EPA 
is therefore finalizing an affirmative defense to civil penalties for 
violations of emission standards that are caused by malfunctions. See 
40 CFR 60.71a (defining ``affirmative defense'' to mean, in the context 
of an enforcement proceeding, a response or defense put forward by a 
defendant, regarding which the defendant has the burden of proof, and 
the merits of which are independently and objectively evaluated in a 
judicial or administrative proceeding.). We also have finalized other 
regulatory provisions to specify the elements that are necessary to 
establish this affirmative defense; the source must prove by a 
preponderance of the evidence that it has met all of the elements set 
forth in 60.74a. (See 40 CFR 22.24). The criteria ensure that the 
affirmative defense is available only where the event that causes a 
violation of the emission standard meets the narrow definition of 
malfunction in 40 CFR 60.2 (sudden, infrequent, not reasonable 
preventable and not caused by poor maintenance and or careless 
operation). For example, to successfully assert the affirmative 
defense, the source must prove by a preponderance of the evidence that 
the violation ``[w]as caused by a sudden, infrequent, and unavoidable 
failure of air pollution control equipment, process equipment, or a 
process to operate in a normal or usual manner * * *.'' The criteria 
also are designed to ensure that steps are taken to correct the 
malfunction, to minimize emissions in accordance with section 60.72a(b) 
and to prevent future malfunctions. For example, the source must prove 
by a preponderance of the evidence that ``[r]epairs were made as 
expeditiously as possible when a violation occurred * * * '' and that 
``[a]ll possible steps were taken to minimize the impact of the 
violation on ambient air quality, the environment and human health * * 
*.'' In any judicial or administrative proceeding, the Administrator 
may challenge the assertion of the affirmative defense and, if the 
respondent has not met its burden of proving all of the requirements in 
the affirmative defense, appropriate penalties may be assessed in 
accordance with Section 113 of the Clean Air Act (see also 40 CFR 
22.27).
    The EPA proposed and is now finalizing an affirmative defense in 
this rule in an attempt to balance a tension, inherent in many types of 
air regulations, to ensure adequate compliance while simultaneously 
recognizing that despite the most diligent of efforts, emission 
standards may be violated under circumstances beyond the control of the 
source. The EPA must establish emission standards that ``limit the 
quantity, rate, or concentration of emissions of air pollutants on a 
continuous basis.'' 42 U.S.C. Sec.  7602(k) (defining ``emission 
limitation and emission standard''). See generally Sierra Club v. EPA, 
551 F.3d 1019, 1021 (D.C. Cir. 2008). Thus, the EPA is required to 
ensure that Section 111 emissions standards are continuous. The 
affirmative defense for malfunction events meets this requirement by 
ensuring that even where there is a malfunction, the emission standard 
is still enforceable through injunctive relief. While ``continuous'' 
standards, on the one hand, are required, there is also caselaw 
indicating that in many situations it is appropriate for the EPA to 
account for the practical realities of technology. For example, in 
Essex Chemical v. Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973), the 
D.C. Circuit acknowledged that in setting standards under CAA section 
111 ``variant provisions'' such as provisions allowing for upsets 
during startup, shutdown and equipment malfunction ``appear necessary 
to preserve the reasonableness of the standards as a whole and that the 
record does not support the `never to be exceeded' standard currently 
in force.'' See also, Portland Cement Association v. Ruckelshaus, 486 
F.2d 375 (D.C. Cir. 1973). Though intervening caselaw such as Sierra 
Club v. EPA and the CAA 1977 amendments calls into question the 
relevance of these cases today, they support the EPA's view that a 
system that incorporates some level of flexibility is reasonable. The 
affirmative defense simply provides for a defense to civil penalties 
for violations that are proven to be beyond the control of the source. 
By incorporating an affirmative defense, the EPA has formalized its 
approach to upset events. In a Clean Water Act setting, the Ninth 
Circuit required this type of formalized approach when regulating 
``upsets beyond the control of the permit holder.'' Marathon Oil Co. v. 
EPA, 564 F.2d 1253, 1272-73 (9th Cir. 1977). See also, Mont. Sulphur & 
Chem. Co. v. United States EPA, 2012 U.S. App. LEXIS 1056 (Jan 19, 
2012) (rejecting industry argument that reliance on the affirmative 
defense was not adequate). But see, Weyerhaeuser Co. v. Costle, 590 
F.2d 1011, 1057-58 (D.C. Cir. 1978) (holding that an informal approach 
is adequate). The affirmative defense provisions give the EPA the 
flexibility to both ensure that its emission standards are 
``continuous'' as required by 42 U.S.C. 7602(k), and account for 
unplanned upsets and thus support the reasonableness of the standard as 
a whole.

IV. Summary of Significant Changes Since Proposal

A. How is the EPA revising the proposed emissions limit for affected 
facilities?

    For affected facilities constructed, modified, or reconstructed 
after October 14, 2011, we proposed to reduce the NOX 
emissions limit from 3.0 lb NOX/ton acid to 0.50 lb 
NOX/ton acid as a 30-day emission rate calculated each 
operating day based on the previous 30 consecutive operating days. See 
76 FR 63878 (October 14, 2011). For these final standards, we are 
promulgating the proposed NOX emissions limit of 0.50 lb 
NOX/ton acid as a 30 operating day emission rate calculated 
each operating day based on the previous 30 operating days. In response 
to commenters' concerns related to how the 30 day emission rate is 
calculated, we have revised the equation used to calculate the 30 day 
emission rate. This revision prevents days with very few operating 
hours from having an artificially large influence on the calculated 30 
day emission rate. See Section V of this preamble, Statistical 
Evaluation of CEMS Data to Determine the NOX Emission 
Standard (Updated Memo for Final Standard), and the Response to Comment 
Document for more information on calculation of the 30 day emission 
rates. The two documents mentioned above are available in the docket 
for this final rule.
    The conclusion that selective catalytic reduction (SCR) is BSER has 
not changed from proposal. The justification includes the following 
reasons: (1) Based on the data available to the Agency, SCR achieves 
lower emissions than other control technologies; (2) SCR technology is 
less expensive and more cost effective than nonselective catalytic 
reduction (NSCR) for control of NOX emissions; and (3) SCR 
produces minimal secondary environmental impacts. In addition, we note 
that SCR is the only known NOX control technology being 
installed in new NAPUs and SCR has been determined to be BACT in 
several recent BACT determinations.
    Although the limit of 0.50 lb NOX/ton acid is based on 
the data for SCR, NSPS do not require the use and installation of a 
specific control device. Whether NSCR can meet the levels achievable by

[[Page 48437]]

SCR over a long term was an area of uncertainty at proposal. At 
proposal, the long term CEMS data from 2 NSCR plants (PCS Geismar Train 
4 and Agrium Sacramento) indicated that neither plant was achieving the 
0.50 lb NOX/ton limit. After proposal, we evaluated 
continuous NOX emission data from Dyno Nobel--St Helens 
(which uses NSCR) that showed a maximum 30 day emission rate of 0.21 lb 
NOX/ton acid. Also, we had monthly data from JR Simplot 
(another nitric acid plant with NSCR) that ranged from 0.15 to 0.36 lb 
NOX/ton acid. Although the data from JR Simplot are not 
directly comparable to continuous NOX emission data (hour by 
hour), there is a strong probability that this source also could comply 
with 0.50 lb NOX/ton acid. Therefore, we conclude the 
standard of 0.50 lb NOX/ton acid limit is achievable for at 
least some NAPUs using NSCR.
    We conclude that new NAPUs will be able to meet the limit taking 
into consideration routine operating variability as well as variation 
due to weather and periods of startup and shutdown as the data analyzed 
included all of these periods. Based on the data available to the 
agency, the limit is demonstrated in practice and achievable for new, 
modified, or reconstructed sources. See Statistical Evaluation of CEMS 
Data to Determine the NOX Emission Standard (Updated Memo 
for Final Standard), for more information.

B. How is the EPA revising the testing and monitoring requirements that 
were proposed for Subpart Ga of Part 60?

    We are finalizing the testing and monitoring requirements that were 
proposed for Subpart Ga and adding the requirement of a dual span 
monitor for reasons explained in Section V of this preamble.

C. How is the EPA revising the notification, reporting, and 
recordkeeping requirements that were proposed for Subpart Ga?

    The reporting and recordkeeping requirements that we proposed are 
being finalized as separate sections for Subpart Ga. Since proposal, 
there have been minor changes to the reporting language at Sec.  
60.77a(e) in relation to EPA's Central Data Exchange (CDX), detailed 
below, but no other changes have been made to the electronic reporting 
requirements.
    The EPA must have performance test data to conduct effective 
reviews of CAA section 111 standards, as well as for many other 
purposes including compliance determinations, emission factor 
development, and annual emission rate determinations. In conducting 
these required reviews, the EPA has found it ineffective and time 
consuming, not only for us, but also for regulatory agencies and source 
owners and operators, to locate, collect, and submit performance test 
data because of varied locations for data storage and varied data 
storage methods. In recent years, though, stack testing firms have 
typically collected performance test data in electronic format, making 
it possible to move to an electronic data submittal system that would 
increase the ease and efficiency of data submittal and improve data 
accessibility.
    In this action, as a step to increase the ease and efficiency of 
data submittal and improve data accessibility, EPA is requiring the 
electronic submittal of select performance test data. Specifically, the 
EPA is requiring owners and operators of Nitric Acid facilities to 
submit electronic copies of performance test reports required under 
Subpart Ga of part 60 to the EPA's WebFIRE database. The WebFIRE 
database was constructed to store performance test data for use in 
developing emission factors. A description of the WebFIRE database is 
available at http://cfpub.epa.gov/oarweb/index.cfm?action=fire.main.
    As mentioned above, data entry will be through an electronic 
emissions test report structure called the Electronic Reporting Tool 
(ERT). The ERT will generate an electronic report which will be 
submitted using the Compliance and Emissions Data Reporting Interface 
(CEDRI). The submitted report is submitted through the EPA's Central 
Data Exchange (CDX) network for storage in the WebFIRE database making 
submittal of data very straightforward and easy. A description of the 
ERT can be found at http://www.epa.gov/ttn/chief/ert/index.html and 
CEDRI can be accessed through the CDX Web site (www.epa.gov/cdx).
    The requirement to submit performance test data electronically to 
the EPA does not create any additional performance testing and would 
apply only to those performance tests conducted using test methods that 
are supported by the ERT. The ERT contains a specific electronic data 
entry form for most of the commonly used EPA reference methods. A 
listing of the pollutants and test methods supported by the ERT is 
available at http://www.epa.gov/ttn/chief/ert/index.html. We believe 
that industry will benefit from this new electronic data submittal 
requirement. Having these data, the EPA will be able to develop 
improved emission factors, make fewer information requests, and 
promulgate better regulations. The information to be reported is 
already required for the existing test methods and is necessary to 
evaluate the conformance to the test method.
    One major advantage of submitting performance test data through the 
ERT is a standardized method to compile and store much of the 
documentation required to be reported by this rule. Another advantage 
is that the ERT clearly states what testing information would be 
required. Another important benefit of submitting these data to the EPA 
at the time the source test is conducted is that it should 
substantially reduce the effort involved in data collection activities 
in the future. When the EPA has performance test data in hand, there 
will likely be fewer or less substantial data collection requests in 
conjunction with prospective technology reviews. This results in a 
reduced burden on both affected facilities (in terms of reduced 
manpower to respond to data collection requests) and the EPA (in terms 
of preparing and distributing data collection requests and assessing 
the results).
    State, local, and tribal agencies can also benefit from a more 
streamlined and accurate review of electronic data submitted to them. 
The ERT allows for an electronic review process rather than a manual 
data assessment making review and evaluation of the data and 
calculations easier and more efficient. Finally, another benefit of 
submitting data to WebFIRE electronically is that these data will 
greatly improve the overall quality of the existing and new emission 
factors by supplementing the pool of emissions test data for 
establishing emissions factors and by ensuring that the factors are 
more representative of current industry operational procedures. A 
common complaint heard from industry and regulators is that emission 
factors are outdated or not representative of a particular source 
category. With timely receipt and incorporation of data from most 
performance tests, the EPA will be able to ensure that emission 
factors, when updated, represent the most current range of operational 
practices. In summary, in addition to supporting regulation 
development, control strategy development, and other air pollution 
control activities, having an electronic database populated with 
performance test data will save industry, state, local, tribal 
agencies, and the EPA significant time, money, and effort while 
improving the quality of emission inventories and, as a result, air 
quality regulations.
    Several changes were made to the recordkeeping and reporting 
provisions related to the affirmative defense

[[Page 48438]]

provisions of the final rule. In addition to minor wording changes to 
improve clarity, the EPA added language to 60.74a(a)(9) to clarify that 
the purpose of the root cause analysis is to determine, correct, and 
eliminate the primary cause of the malfunction. The root cause analysis 
itself does not necessarily require that the cause be determined, 
corrected or eliminated. However, in most cases, the EPA believes that 
a properly conducted root cause analysis will have such results. The 
EPA also eliminated the 2-day notification requirement in 60.74a 
because EPA will receive sufficient notification of malfunction events 
that result in violations in other required compliance reports, such as 
the reports required under 60.77a. In addition, EPA revised 60.74a(b) 
to state that ``[t]he owner or operator seeking to assert an 
affirmative defense shall submit a written report to the Administrator 
with all necessary supporting documentation, that it has met the 
requirements set forth in paragraph (a) of this section. This 
affirmative defense report shall be included in the first periodic 
compliance, deviation report or excess emission report otherwise 
required after the initial occurrence of the violation of the relevant 
standard (which may be the end of any applicable averaging period). If 
such compliance, deviation report or excess emission report is due less 
than 45 days after the initial occurrence of the violation, the 
affirmative defense report may be included in the second compliance, 
deviation report or excess emission report due after the initial 
occurrence of the violation of the relevant standard.''

V. Summary of Significant Comments and Responses to the Proposed NSPS

    The EPA received comments on a number of issues during the public 
comment period. These issues include the level and time period of the 
NOX standard, NOX monitoring requirements, issues 
related to startup and shutdown, and regulation of GHGs from nitric 
acid plants. Summaries of the major comments and EPA responses are 
presented in the following paragraphs. Summaries of comments on these 
and other issues that are not presented in the preamble, as well as the 
EPA's responses to those comments, can be found in the Response to 
Comment Document. The Response to Comment Document is available in the 
docket for this final rule, EPA-HQ-OAR-2010-0750.
    Comment: Multiple commenters supported the EPA's decision to 
tighten the standard for NOX emissions. One commenter stated 
that the revisions to the standard are warranted given the low 
emissions achieved by well controlled facilities across the industry, 
as shown in the ICR data, and the lengthy delay in reviewing the NSPS. 
The commenter asks that the EPA consider the myriad health effects 
related to NOX emissions when determining the standard for 
the final rule. The commenter notes that these effects include direct 
effects from NOX exposure as well as effects of secondary 
pollutants, such as ozone and fine particulate matter, for which 
NOX is a precursor.
    One commenter agrees that the EPA has clearly demonstrated that its 
proposed NOX standard of 0.50 lb/ton based on a 30-day 
rolling emission rate is not only ``achievable'' and ``adequately 
demonstrated,'' it is already routinely being achieved at multiple 
facilities within the industry. Given the technology-forcing nature of 
Section 111's BDT standard, the commenter believes that EPA could 
establish a standard more stringent than its current proposal. 
Nevertheless, the commenter believes that the proposed emission limit 
is within the range of what is reasonable for purposes of the NSPS 
program.
    Another commenter stated that the standard should be more stringent 
than what was proposed based on the fact that some facilities are 
achieving lower emissions than the proposed limit. The commenter 
further stated that the EPA failed to justify why a standard more 
stringent than 0.50 lb/ton was not proposed. The commenter states that 
the EPA appeared to accommodate current industry practice rather than 
comply with the ``technology forcing'' mandate of CAA section 111. One 
commenter suggested that the EPA should set a tighter limit than the 
proposed standard because ``most control systems installed on future 
affected facilities would achieve emissions below the proposed 
emissions limit even in the absence of these proposed revisions.''
    Response: The EPA disagrees with commenters that the emission limit 
should be more stringent. The EPA believes that the rationale for 
proposing the standard of 0.50 lb NOX/ton acid was well 
supported by the emissions data and continues to be well supported for 
the final rule. The emissions data from the three ICR test plants that 
employ SCR (Agrium North Bend, PCS Geismar Train 5, and El Dorado 
Nitrogen) have no discernible differences in technology or process that 
would account for the differences in emission levels. Therefore we 
selected an emission limit that was achievable by all three of the 
units controlled by SCR.
    Emissions during some short periods (e.g. startup and shutdown) can 
be higher than during steady state operations at some nitric acid 
plants. At proposal, we estimated these periods to occur on average 
about 3 to 4 hours per month. However, as the result of public 
comments, we have learned that these periods can occur more frequently 
for some facilities. These periods still make up an extremely small 
fraction of total operating time (i.e. about 1 percent or less). In 
response to public comments, the final rule contains a revised method 
for calculating NOX emissions. The calculation method used 
at proposal assumed that each operating day was weighted equally, 
regardless of the numbers of operating hours during that day. The 
proposed method could hypothetically lead to a day with only a few 
operating hours contributing 1/30th of the calculated rolling emission 
rate. The calculation method used for the final rule has been 
established such that every hourly NOX concentration 
monitored during each 30 unit operating day period is weighted equally. 
The adjusted calculation calculates each hourly emission rate and 
divides by the total operating hours. This adjustment prevents 
infrequent and short duration events from having an unrepresentatively 
large impact on the 30 day rolling emission rate. Using the adjusted 
calculation method, the maximum 30 day rolling emission rate for any of 
the three ICR test plants with SCR is 0.41 lb NOX/ton acid 
at Agrium North Bend.
    The EPA also reanalyzed the CEMS data using the assumption that the 
number of periods of startup and shutdown could be higher for some 
facilities compared to the number of periods reported for Agrium North 
Bend. EPA compared the number of startup/shutdown periods for Agrium 
North Bend to the highest number of startup/shutdown periods reported 
through the Section 114 request.
    According to the information received in response to the Section 
114 request, the highest number of hourly startup/shutdown (SS) periods 
per year was reported as 95 by Coffeyville. Information received after 
publication of the proposed rule indicates there are reasons that other 
facilities may startup and shutdown more frequently than the Agrium 
North Bend facility.
    To look at the impact of more frequent start up and shutdown 
periods, we doubled the 67 hourly SS periods reported by Agrium North 
Bend to 134 hourly SS periods, which would place them above the highest 
number of SS periods from any of our Section 114 respondents. Then, we 
analyzed the

[[Page 48439]]

CEMS data for Agrium North Bend by assuming that the number of SS 
periods is doubled. The resulting maximum 30 operating day emission 
rate is 0.47 lb NOX/ton acid. This example demonstrates that 
the limit promulgated in this final rule is achievable by affected 
facilities that experience more periods of startup and shutdown than 
the Agrium North Bend plant. See Agrium North Bend Analyses, and 
Statistical Evaluation of CEMS Data to Determine the NOX Emission 
Standard (Updated Memo for Final Standard), available in docket ID: 
EPA-HQ-OAR-2010-0750. Thus, we conclude that a limit of 0.50 lb 
NOX/ton acid is appropriate.
    The EPA disagrees with the commenter that stated ``the proposed 
standard appears to simply accommodate current industry practice rather 
than properly comply with the EPA's technology-forcing mandate under 
CAA Sec.  111.'' The EPA maintains that SCR is the ``best system of 
emission reduction'' even though it is not a new technology. It is 
unclear what technologies the commenter suggests would work more 
effectively for controlling NOX emissions than those 
evaluated during this rulemaking (SCR and NSCR). Though the CAA is 
intended to be ``technology-forcing,'' NSPS must be set based on 
``substantial evidence that such improvements are feasible and will 
produce the improved performance necessary to meet the standard.'' 
Sierra Club v. Costle, 657 F.2d 298, 364 (D.C. Cir. 1981). As one court 
stated, ``[t]he statutory standard is one of achievability, given 
costs.'' National Lime Assn. v. EPA, 627 F.2d 416, 431 n.46 (D.C. Cir. 
1980). Further, in assessing whether a standard is achievable, the EPA 
must account for routine operating variability associated with 
performance of the system on whose performance the standard is based. 
See National Lime Ass'n, 627 F. 2d at 431-33. While NSPS are based on 
the effectiveness of one or more specific technological systems of 
emissions control, unless certain conditions are met, the CAA does not 
authorize the EPA to prescribe a particular technological system that 
must be used to comply with a NSPS. See CAA section 111(b)(5). Rather, 
sources can select whatever combination of measures will achieve 
equivalent or greater control of emissions.
    Comment: Commenters stated that the EPA did not fulfill the 
requirements of CAA section 111 because the agency failed to consider 
the variable conditions present in the industry that impact that 
achievability of the proposed standard. Specifically, the commenters 
stated that the EPA failed to consider the costs of adding additional 
controls to modified or reconstructed facilities that are controlled 
with NSCR given that the EPA acknowledged that there was uncertainty at 
the time of the proposed rule that NSCR controlled plants could achieve 
the 0.50 lb/ton limit.
    Another commenter stated that the facilities used to develop the 
proposed standard are not representative of the industry as a whole 
because these three facilities use controls that are not in use or not 
available to all nitric acid plants. The commenter notes that two of 
the three plants (PCS Geismar and El Dorado Nitrogen) were designed 
with dual-pressure technology and other features that minimize 
emissions. According to the commenter, these technologies may not be 
available to smaller new plants or modified plants. The commenter also 
notes that El Dorado Nitrogen has high pressure steam that can be used 
to pre-heat the SCR and the Agrium North Bend facility uses hydrogen 
peroxide injection and extended absorption. According to the commenter, 
these control technologies may not be economically feasible for some 
facilities. The commenter further states that adding a SCR or NSCR may 
not be enough to meet the proposed limit for some existing mono-
pressure facilities that trigger the NSPS.
    Response: The EPA agrees that further evaluation of the 
achievability of the standard by nitric acid plants that have been 
modified or reconstructed was warranted prior to issuing the final 
rule. The commenters identified a few nitric acid plants that fit those 
definitions, and we performed further evaluation of the NOX 
CEMS data for such plants.
    A BACT determination has been made on a modified source (Agrium 
North Bend) for which we have CEMS data. We note that the Agrium North 
Bend facility is a relatively small, monopressure, modified facility. 
As part of our evaluation, we analyzed the data for this plant to 
estimate emissions performance of this BACT facility and have 
determined this facility meets the NOX limit in this final 
rule. See memo entitled Agrium North Bend Analyses, which is available 
in the docket for this rulemaking: EPA-HQ-OAR-2010-0750.
    As a part of our analysis, we have evaluated the cost for controls 
required for the Agrium North Bend plant when this facility was 
modified. An SCR was installed at a capital cost of roughly $2,700,000 
($370,000 annualized cost, assuming a 20 year capital recovery period). 
This facility achieved emissions reductions of nearly 300 tons of 
NOX per year. From these figures, we calculate the cost 
effectiveness for the addition of this control device as roughly $1,200 
per ton of NOX. See the memo Impacts of Nitric acid NSPS 
Review-NOX (Updated Memo for Final NSPS). We conclude this cost 
effectiveness is reasonable and supported by NSPS for NOX 
for other source categories. See 77 FR 9303, 76 FR 24976, 75 FR 51570, 
and 75 FR 55009.
    The EPA has decided to promulgate a limit of 0.50 lb 
NOX/ton calculated in a manner that is more appropriate than 
what was proposed. The calculation in the final rule uses each hourly 
NOX emission rate during the 30 day period rather than 
creating 30 daily values. See Statistical Evaluation of CEMS Data to 
Determine the NOX Emission Standard (Updated Memo for Final Standard), 
and Agrium North Bend Analyses, for more information on the 30 day 
rolling emission rate calculations. We conclude that the modified 
monopressure Agrium North Bend plant would meet this emission limit of 
0.50 lb NOX/ton acid, and that this level is appropriate for 
future modified and reconstructed sources as well as new sources. For a 
discussion of the data received from the American Chemistry Council 
after the proposed rule, see Analysis of Data Received Between Proposal 
and Promulgation of Part 60, Subpart Ga, which is available in docket 
ID EPA-HQ-OAR-2010-0750. Also see Response to Comment Document section 
7.1-7.3.
    At proposal, there was uncertainty as to whether units using NSCR 
could achieve the proposed limits. We have evaluated CEMS data for two 
additional plants using NSCR and these facilities do meet the final 
emission limit. We evaluated continuous NOX emission data 
from Dyno Nobel St. Helens. This analysis shows a maximum 30 operating 
day emission rate of 0.21 lb NOX/ton acid. Also, we had 
monthly data from JR Simplot, a nitric acid plant controlled by NSCR, 
which ranged from 0.15 lb NOX/ton acid to 0.36 lb 
NOX/ton acid. Although monthly data are not directly 
comparable to continuous hourly NOX emission data, there is 
a strong probability that this source controlled by NSCR could comply 
with 0.50 lb NOX/ton acid. Therefore, based on our 
evaluation of this technical information, we conclude the standard of 
0.50 lb NOX/ton acid limit is achievable for at least some 
nitric acid production units using NSCR.
    The conclusion that selective catalytic reduction (SCR) is BSER has 
not changed from proposal. The justification includes the following 
reasons: (1) Based on the data available to the Agency, SCR achieves 
lower emissions

[[Page 48440]]

than other control technologies; (2) SCR technology is less expensive 
and more cost effective than nonselective catalytic reduction (NSCR) 
for control of NOX emissions; and (3) SCR produces minimal 
secondary environmental impacts. In addition, we note that SCR is the 
only known NOX control technology being installed in new 
NAPUs and SCR has been determined to be BACT in several recent BACT 
determinations.
    If higher NOX emissions during periods of startup and 
shutdown are a concern, there are two types of equipment that can be 
used by affected facilities. These include startup heaters and hydrogen 
peroxide injection. Startup heaters are used to heat the SCR to the 
appropriate operating temperature so that the SCR can be operational 
during startups, thereby reducing NOX emissions during 
startup. Hydrogen peroxide injection, which is not applicable in all 
situations, can also be used in the extended absorption column to 
decrease NOX emissions. Affected facilities could also 
employ extended absorption to increase the yield of nitric acid; thus 
reducing the amount of NOX emitted from the absorption unit. 
We recognize that there may be circumstances where one or more of these 
specific types of equipment or measures may not be feasible. However, 
based on all of the data and information that we have gathered and 
analyzed, we conclude any facility (including mono pressure units) that 
chooses to modify or reconstruct will be able to achieve a limit of 
0.50 lb/ton at a reasonable costs by adding controls (e.g., SCR) and or 
by making other changes such as those described above. Additionally, 
because the standard is based on 30-day emission rates, even if these 
technologies are not employed, emissions during brief periods of 
startup or shutdown should not have substantial impacts on the source's 
ability to meet the standard.
    Comment: Several commenters supported the EPA's decision not to 
take final agency action with respect to greenhouse gases in today's 
rule. The commenters stated that the EPA is not obligated to develop 
standards for GHG as a part of the 8 year review of the NSPS and that 
the EPA has broad discretion to decide whether and how to regulate 
greenhouse gases.
    Alternatively, some commenters state that the EPA's discretion to 
develop standards for pollutants not previously subject to NSPS is 
limited by the language of the statute. The commenters state that the 
clearest reading of CAA sections 111(a) and 111(b) require the EPA to 
regulate any pollutant emitted from a listed source category when it is 
cost effective to do so.
    Multiple commenters assert that Congress intended for the EPA to 
regulate the full scope of air pollution emitted by a source category 
when developing the initial NSPS because the language of CAA section 
111 repeatedly refers to ``any'' air pollutant emitted by source 
categories subject to regulation under this section. The commenter 
asserts that the use of the word ``any'' as a modifier for ``air 
pollutant'' limits the EPA's discretion to decline to set NSPS for 
pollutants emitted from a listed source category. Although ``any'' is 
not included as a modifier for ``air pollutant'' in Section 111(a)(1)'s 
definition of ``standard of performance,'' the commenter notes that it 
is included in the definitions of the term ``modification.'' According 
to the commenter, under Section 111(b), NSPS standards apply to 
facilities constructed or modified after standards have been set. The 
commenter notes that if an existing facility undergoes a modification, 
a physical change that increases the emission of ``any'' air pollutant, 
it is a structure now subject to NSPS. The commenter asserts that 
reading Section 111 to allow for unlimited agency discretion on which 
pollutants require performance standards could lead to the peculiarity 
that a facility could become subject to NSPS regulation by increasing 
its emissions of a pollutant for which EPA has chosen not to set 
standards. According to one commenter, the emissions of GHGs from 
nitric acid plants would warrant listing the nitric acid plant source 
category, even in the absence of NOX emissions. The 
commenter asserts that the EPA is obligated to set standards for GHGs 
from nitric acid plants to avoid a situation in which a facility could 
become subject to NSPS for increased emissions of a pollutant that is 
not subject to a standard. The commenters say that the same scope that 
applies when the EPA develops new NSPS exists when the EPA reviews an 
existing NSPS and requires the EPA to review and update (or develop) 
the performance standard for all emitted air pollutants.
    One commenter states that the EPA must regulate GHGs in this 
rulemaking action based on the decision by the U.S. Supreme Court in 
Massachusetts v. EPA, which held that GHGs fall within the CAA 
definition of ``air pollutant''. The commenter states that since GHGs 
are defined as ``air pollutants'' and Section 111 of the CAA creates a 
general duty for the EPA to regulate such emissions, it would be 
unlawful for the EPA to choose not to regulate GHGs in this action. The 
commenter states that the EPA has failed to provide an adequate 
explanation for its failure to regulate nitrous oxide and other 
greenhouse gas emissions from nitric acid plants. According to the 
commenter, the only way the EPA could legitimately avoid establishing 
standards for nitrous oxide and other greenhouse gas emissions from 
nitric acid plants would be if it developed a record clearly 
demonstrating that such regulations would not be appropriate based on 
relevant and lawful considerations. The commenter notes that the EPA 
has made no effort to make such a showing with respect to nitric acid 
plants.
    Response: While the CAA permits the EPA, under appropriate 
circumstances, to add new standards of performance for additional 
pollutants, the EPA is not taking final agency action with regard to 
standards for GHG at this time.
    The EPA has promulgated new performance standards for pollutants 
not previously covered concurrent with some previous 8-year review 
rulemakings. See 52 FR 24672, 24710 (July 1, 1987) (considering 
PM10 controls in future rulemakings); 71 FR 9866 (February 
27, 2006) (new PM standards for boilers). Additionally, as commenters 
correctly point out, the EPA is promulgating a new standard of 
performance for NOX emissions from certain affected 
facilities at nitric acid plants in this rulemaking. The EPA does not 
yet have adequate information regarding emissions of GHGs from nitric 
acid plants, the cost and secondary impacts of controlling 
NOX and GHGs, and the level of emissions achieved through 
simultaneous control of GHGs and NOX. However, because the 
Agency is in the process of gathering information and reviewing 
controls for this industry to continue working towards a proposal for 
GHG standards for nitric acid plants, the EPA is not taking any final 
action in today's rule with respect to a GHG standard for nitric acid 
plants.
    Comment: Multiple commenters state that the EPA must promulgate 
section 111(d) standards for existing facilities within the nitric acid 
sector. One commenter states that promulgation of a performance 
standard for greenhouse gas emissions from newer nitric acid plants 
will enable (and compel) EPA to issue emission guidelines and to 
require states to submit implementation plans demonstrating how they 
will control greenhouse gas emissions from existing nitric acid plants. 
The commenter notes that Section 111(d) was meant to be a gap-filling 
provision intended to regulate this third category, and EPA's

[[Page 48441]]

main focus was on pollutants rather than source categories. Here, 
according to the commenter, nitrous oxide and other greenhouse gases 
are pollutants that endanger public health welfare, and existing nitric 
acid plants are significant sources of such pollution. According to the 
commenter, existing nitric acid plants account for the vast majority of 
the industry's nitrous oxide emissions, and they will continue to do so 
for some time until older plants eventually retire and are replaced 
with newer plants. Another commenter recommends that the EPA update 
section 111(d) standards as soon as possible because these standards 
are long overdue and technology exists that is capable of reducing 
emissions.
    One commenter states that the EPA should develop emission 
guidelines for existing sources to prevent ``grandfathering'' of 
existing sources that can occur when section 111(b) is used without 
concurrent use of section 111(d). The commenter states that the absence 
of emission guidelines for existing sources creates a disincentive to 
build new, more environmentally friendly sources. The commenter asserts 
that there is existing technology to limit emissions from existing 
sources that is likely cost-effective. Another commenter states that 
the EPA should develop standards for GHGs from existing nitric acid 
plants through the collaborative, iterative process of setting section 
111(d) emission guidelines given the importance of GHG emissions from 
existing nitric acid plants.
    Response: Emission guidelines for existing sources are developed 
concurrently or after standards of performance for new, modified, or 
reconstructed sources. See 40 CFR 60.22(a) (``Concurrently upon or 
after proposal of standards of performance for the control of a 
designated pollutant from affected facilities, the Administrator will 
publish a draft guideline document containing information pertinent to 
control of the designated pollutant from designated facilities.''). See 
also CAA section 111(d)(1) (emission guidelines are developed for 
existing sources in a source category for a pollutant ``to which a 
standard of performance under this section would apply if such existing 
source were a new source''). Under the NSPS program, the Agency only 
develops section 111(d) existing source emission guidelines for non-
criteria pollutants and non-HAPs.
    In this action, we are reviewing and revising the NOX 
standard for new, modified, or reconstructed sources under section 
111(b). As noted above, Section 111(d) does not provide authority to 
the Agency to set emission guidelines for existing sources for criteria 
pollutants, such as NOX.
    With respect to emissions guidelines for existing sources of GHGs, 
we are not taking final action with respect to GHG emissions from new, 
modified, or reconstructed sources in today's rule. As noted above, 
emissions guidelines for existing sources are set concurrently with or 
after standards for new, modified or reconstructed sources, and so we 
are also not taking any final action to develop emissions guidelines 
for existing sources of GHGs.

VI. Summary of Cost, Environmental, Energy, and Economic Impacts of 
These Standards

    In setting standards, the CAA requires us to consider alternative 
emission control approaches, taking into account the estimated costs as 
well as impacts on energy, solid waste, and other effects.

A. What are the impacts for nitric acid production units?

    We are presenting estimates of the impacts for 40 CFR part 60, 
Subpart Ga, the performance standards for new NAPUs constructed or 
reconstructed after October 14, 2011. The cost, environmental, and 
economic impacts presented in this section are expressed as incremental 
differences between the impacts of NAPUs complying with Subpart Ga and 
the current NSPS requirements of Subpart G (i.e., baseline). The 
impacts are presented for future NAPUs that commence construction, 
reconstruction, or modification over the five years following 
promulgation of the revised NSPS. To account for variation in the value 
of money over time, all annualized costs have been scaled to the 2nd 
quarter of 2010 using the Marshall and Swift Index. The analyses and 
the documents referenced below can be found in Docket ID No. EPA-HQ-
OAR-2010-0750.
    In order to determine the incremental impacts of this rule, we 
first estimated the number of new NAPUs that would become subject to 
regulation during the five year period after promulgation of Subpart 
Ga. Based on existing NAPUs and estimated future growth rates, six 
NAPUs are expected to trigger Subpart Ga NSPS in that five year period. 
In response to concerns from commenters, we have included five new 
NAPUs and one modified or reconstructed NAPU in the impact analysis for 
the final rule. For further detail on the methodology of these 
calculations, see memorandum Impacts of Nitric Acid NSPS Review--
NOX (Updated Memo for Final NSPS), in Docket ID No. EPA-HQ-
OAR-2010-0750.
    The Subpart Ga NOX emission limit being promulgated in 
this action reflects the control technology currently in use by the 
industry. The Subpart G NSPS NOX emissions limit can be 
achieved using a number of control techniques including NSCR, SCR and 
HPI. We expect most new facilities to employ SCR to comply with Subpart 
Ga. Since we expect new units will apply the same control technology to 
comply with the revised limit being promulgated in today's action as 
they would have applied to meet the current limit, there is no increase 
in control costs of meeting the emission limit of 0.50 lb 
NOX/ton acid for new NAPUs.
    There are differences in notification, testing, monitoring, 
reporting, and recordkeeping (MRR) between Subpart G and the new 
Subpart Ga that result in increased costs for new and modified NAPUs. 
These will include the capital cost of installing an air flow monitor 
and a dual span NOX concentration monitor ($39,000 per NAPU 
and $23,000 per NAPU, respectively). These costs represent annualized 
costs of $15,000 per NAPU and $9,000 per NAPU, respectively. Annual 
costs will also be incurred for reporting, recordkeeping, and stack 
testing and total $72,000 for all six NAPUs. The incremental stack 
testing costs are due to the Appendix F requirements for annual rather 
than one-time testing for CEMS certification. They were inadvertently 
omitted from the cost analysis in the proposed rule. These increased 
costs are the only increased costs that will be incurred by new 
facilities as a result of the revised standards being promulgated in 
today's action. They are shown in Table 2.
    The industry-wide cost estimate has been changed from the proposal. 
In the proposal we estimated that there would be six new sources during 
the first five years of the new Subpart Ga. We now estimate that there 
will be one modified source and five new sources during those five 
years. We estimate that the modified source would install an SCR system 
at a capital cost of $2.7 million and a total annualized cost of 
$370,000. The costs for the modified source are shown in Table 3.
    The potential nationwide emission reduction associated with 
lowering the NOX limit from 3.0 to 0.50 lb NOX/
ton acid (100 percent acid basis) is estimated to be about 2100 tons 
per year (tpy) NOX.
    At proposal, the estimated capital costs and annualized costs for 
Subpart Ga were $234,000, and $90,000, respectively. The cost 
effectiveness was

[[Page 48442]]

estimated at $45 per ton of NOX. Based on the revised costs 
estimates discussed above, we currently estimate the final capital 
costs and annualized costs to be $3.1 million and $585,000, 
respectively, for all six of the production units projected to become 
subject to subpart Ga between 2012 and 2017. These costs result in a 
cost effectiveness of about $280 per ton of NOX.
    The estimated nationwide incremental 5-year NOX 
emissions reductions and cost impacts for these revisions are 
summarized in Table 4 of this preamble. The methodology is detailed in 
the memorandum Impacts of Nitric Acid NSPS Review--NOX (Updated Memo 
for Final NSPS). Further discussion of this cost effectiveness is 
available in the Section V of this preamble. As discussed in Section V, 
the cost effectiveness in this NSPS is reasonable and supported by 
previous NSPS for NOX.

   Table 2--National Incremental NOX Emission Reductions and Cost Impacts for New Nitric Acid Production Units
              Subject to Standards Under 40 CFR Part 60, Subpart Ga (Fifth Year After Promulgation)
----------------------------------------------------------------------------------------------------------------
                                                                              Estimated annual
                                            Total capital   Total annualized    NOX emission     Estimated cost
Revisions for future affected facilities    cost [$1,000]   cost [$1,000/yr]     reductions       effectiveness
                                                                                [tons NOX/yr]      [$/ton NOX]
----------------------------------------------------------------------------------------------------------------
Revisions to NOX emission limit.........                $0                $0              1806  ................
Revisions to MRR requirements...........               310               180  ................  ................
                                         -----------------------------------------------------------------------
    Total...............................               310               180              1806               100
----------------------------------------------------------------------------------------------------------------


Table 3--National Incremental NOX Emission Reductions and Cost Impacts for Modified or Reconstructed Nitric Acid
     Production Units Subject to Standards Under 40 CFR Part 60, Subpart Ga (Fifth Year After Promulgation)
----------------------------------------------------------------------------------------------------------------
                                                                              Estimated annual
                                            Total capital   Total annualized    NOX emission     Estimated cost
Revisions for future affected facilities    cost [$1,000]   cost [$1,000/yr]     reductions       effectiveness
                                                                                [tons NOX/yr]      [$/ton NOX]
----------------------------------------------------------------------------------------------------------------
Revisions to NOX emission limit.........            $2,700              $370               299            $1,200
Revisions to MRR requirements...........                62                36  ................  ................
                                         -----------------------------------------------------------------------
    Total...............................             2,762               406               299             1,360
----------------------------------------------------------------------------------------------------------------


   Table 4--National Incremental NOX Emission Reductions and Cost Impacts for All Nitric Acid Production Units
             Subject to Standards Under 40 CFR Part 60, Subpart Ga (Fifth Year After Promulgation) *
----------------------------------------------------------------------------------------------------------------
                                                                              Estimated annual
                                            Total capital   Total annualized    NOX emission     Estimated cost
Revisions for future affected facilities    cost [$1,000]   cost [$1,000/yr]  reductions [tons  effectiveness [$/
                                                                                   NOX/yr]          ton NOX]
----------------------------------------------------------------------------------------------------------------
Revisions to NOX emission limit.........            $2,700              $370             2,104              $176
Revisions to MRR requirements...........               372               215  ................  ................
                                         -----------------------------------------------------------------------
    Total...............................             3,072               585             2,104               278
----------------------------------------------------------------------------------------------------------------
* Any small discrepancies between Tables 2, 3, and 4 are due to rounding.

B. What are the secondary impacts for nitric acid production units?

    Indirect or secondary air quality impacts are impacts that would 
result from the increased electricity usage associated with the 
operation of control devices (i.e., increased secondary emissions of 
criteria pollutants from power plants). Energy impacts consist of the 
electricity and steam needed to operate control devices and other 
equipment that would be required under this final rule. The five new 
sources would likely install the same control systems to comply with 
the current Subpart G NOX emission limit or this Subpart Ga 
NOX emission limit. The revisions being finalized in today's 
rule require the addition of exhaust gas flow monitors and dual span 
NOX concentration monitors, which would result in minimal 
secondary air impacts or increase in overall energy demand.
    For the one modification expected to take place over the next five 
years, the installation of an SCR is expected. This addition will 
result in secondary air impacts and/or an increase in overall energy 
demand. However, the reductions in NOX emissions achieved 
through installation of this control equipment will greatly outweigh 
any secondary air impacts associated with increased electricity use. 
See Secondary Impact Analysis--SCR.

C. What are the economic impacts for nitric acid production units?

    We performed an economic impact analysis that estimates changes in 
prices and output for NAPUs nationally using the annual compliance 
costs estimated for this rule. All estimates are for the fifth year 
after promulgation since this is the year for which the compliance cost 
impacts are estimated. The impacts to producers and consumers affected 
by this rule are slightly higher product prices and slightly lower 
outputs. Prices for products (nitric acid) from affected plants should 
increase by less than 0.36 percent for the fifth year. The output of 
nitric acid should decrease by less than 1.20 percent for the fifth 
year. Hence, the overall economic impact of this

[[Page 48443]]

NSPS should be low on the affected industries and their consumers. For 
more information, please refer to the Economic Impact Analysis for this 
rulemaking in the public docket.

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
information collection requirements are not enforceable until OMB 
approves them.
    These revisions to the existing new source performance standards 
for NAPUs add monitoring requirements for future affected facilities. 
We have revised the ICR for the existing rule.
    These revisions to the new source performance standards for NAPUs 
for future affected facilities include a change to the emission limit 
and additional continuous monitoring requirements. The monitoring 
requirements include installing a continuous flow monitor and a dual 
span NOX concentration monitor, and monitoring the nitric 
acid production rate and concentration. These monitoring requirements 
are in addition to a CEMS for NOX concentration which is 
required under the current Subpart G. These requirements are based on 
specific requirements in Subpart Ga which are mandatory for all 
operators subject to NSPS. These recordkeeping and reporting 
requirements are specifically authorized by section 114 of the CAA (42 
U.S.C. 7414). All information submitted to the EPA pursuant to the 
recordkeeping and reporting requirements for which a claim of 
confidentiality is made is safeguarded according to the EPA policies 
set forth in 40 CFR part 2, subpart B.
    When a malfunction occurs, sources must report them according to 
the applicable reporting requirements of 40 CFR part 60, subpart Ga. An 
affirmative defense to civil penalties for violations of emission 
standard that are caused by malfunctions is available to a source if it 
can demonstrate that certain criteria and requirements are satisfied. 
The criteria ensure that the affirmative defense is available only 
where the event that causes a violation of the emission standard meets 
the narrow definition of malfunction in 40 CFR 60.2 (sudden, 
infrequent, not reasonable preventable, and not caused by poor 
maintenance and or careless operation) and where the source took 
necessary actions to minimize emissions. In addition, the source must 
meet certain notification and reporting requirements. For example, the 
source must prepare a written root cause analysis and submit a written 
report to the Administrator documenting that it has met the conditions 
and requirements for assertion of the affirmative defense.
    For this rule, EPA is adding affirmative defense to the estimate of 
burden in the ICR. To provide the public with an estimate of the 
relative magnitude of the burden associated with an assertion of the 
affirmative defense position adopted by a source, the EPA has provided 
administrative adjustments to this ICR that shows what the 
notification, recordkeeping, and reporting requirements associated with 
the assertion of the affirmative defense might entail. The EPA's 
estimate for the required notification, reports, and records, including 
the root cause analysis, associated with a single incident totals 
approximately $3,141, and is based on the time and effort required of a 
source to review relevant data, interview plant employees, and document 
the events surrounding a malfunction that has caused a violation of an 
emission standard. The estimate also includes time to produce and 
retain the record and reports for submission to the EPA.
    The EPA provides this illustrative estimate of this burden because 
these costs are only incurred if there has been a violation and a 
source chooses to take advantage of the affirmative defense. Given the 
variety of circumstances under which malfunctions could occur, as well 
as differences among sources' operation and maintenance practices, we 
cannot reliably predict the severity and frequency of malfunction-
related excess emissions events for a particular source. It is 
important to note that the EPA has no basis currently for estimating 
the number of malfunctions that would qualify for an affirmative 
defense. Current historical records would be an inappropriate basis, as 
source owners or operators previously operated their facilities in 
recognition that they were exempt from the requirement to comply with 
emissions standards during malfunctions. Of the number of violation 
events reported by source operators, only a small number would be 
expected to result from a malfunction (based on the definition above), 
and only a subset of violations caused by malfunctions would result in 
the source choosing to assert the affirmative defense. Thus, we believe 
the number of instances in which source operators might be expected to 
avail themselves of the affirmative defense will be extremely small.
    For this reason, we estimate no more than 2 such occurrences for 
all sources subject to 40 CFR part 60, subpart Ga over the 3-year 
period covered by this ICR. We expect to gather information on such 
events in the future, and will revise this estimate as better 
information becomes available.
    The annual burden for this information collection averaged over the 
first 3 years of this ICR is estimated to total 968 labor-hours per 
year at a cost of $91,800 per year. The annualized capital costs are 
estimated at $19,300 per year. The annualized operation and maintenance 
(O&M) costs are $23,500. The total annualized capital and O&M costs are 
$42,800 per year. Burden is defined at 5 CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA) as Amended by the Small Business 
Regulatory Enforcement Fairness Act (RFA) of 1996 (SBREFA), 5 U.S.C. 
601 et seq.

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit

[[Page 48444]]

enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
certification is based on the economic impact of this action to all 
affected small entities. Only four small entities may be impacted by 
this rule. This is an estimate that may overstate small entity impacts 
in that we assume each existing small entity will have a new source 
subject to this rule, which is unlikely. We estimate that all affected 
small entities will have annualized costs of less than 0.2 percent of 
their sales.
    For more information on the small entity impacts associated with 
this rule, please refer to the Economic Impact and Small Business 
Analyses in the public docket. Although this rule would not have a 
significant economic impact on a substantial number of small entities, 
the EPA nonetheless tried to reduce the impact of this rule on small 
entities. When developing the revised standards, the EPA took special 
steps to ensure that the burdens imposed on small entities were 
minimal. The EPA conducted several meetings with industry trade 
associations to discuss regulatory options and the corresponding burden 
on industry, such as recordkeeping and reporting.

D. Unfunded Mandates Reform Act

    This rule does not contain a federal mandate that may result in 
expenditures of $100 million or more for state, local, and tribal 
governments, in the aggregate, or to the private sector in any one 
year. This rule is not expected to impact state, local, or tribal 
governments. The nationwide annualized cost of this rule for affected 
industrial sources is $585,000/yr. Thus, this rule is not subject to 
the requirements of sections 202 and 205 of the Unfunded Mandates 
Reform Act (UMRA).
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This rule will not 
apply to such governments and will not impose any obligations upon 
them.

E. Executive Order 13132, Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Nitric acid plants are privately 
owned companies and there will be no direct impact on states and other 
federal offices. Thus, Executive Order 13132 does not apply to this 
rule. In the spirit of Executive Order 13132, and consistent with the 
EPA policy to promote communications between the EPA and state and 
local governments, the EPA specifically solicited comment on this rule 
from state and local officials.

F. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have 
substantial direct effects on tribal governments, on the relationship 
between the federal government and Indian tribes, or on the 
distribution of power and responsibilities between the federal 
government and Indian tribes, as specified in Executive Order 13175. 
This rule imposes requirements on owners and operators of NAPUs and not 
tribal governments. We do not know of any NAPUs owned or operated by 
Indian tribal governments. However, if there are any, the effect of 
this rule on communities of tribal governments would not be unique or 
disproportionate to the effect on other communities. Thus, Executive 
Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    The EPA interprets Executive Order 13045 (62 F.R. 19885, April 22, 
1997) as applying to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is based 
solely on technology performance. Nevertheless, this action will result 
in reductions in NOX emissions which will provide some 
increased protection of health for people of all ages including 
children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse energy effect on the supply, 
distribution, or use of energy. This action will not create any new 
requirements for sources in the energy supply, distribution, or use 
sectors.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113 (15 U.S.C. 272 note), 
directs the EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures, 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. NTTAA directs the EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable VCS.
    This final rulemaking involves technical standards. The EPA is 
using the following: ASTM D6348-03, Standard Test Method for 
Determination of Gaseous Compounds by Extractive Direct Interface 
Fourier Transform Infrared (FTIR) Spectroscopy, and ASTM E1584-11, 
Standard Test Method for Assay of Nitric Acid, which have been 
incorporated by reference.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    The EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. The EPA has also determined that a proximity-based 
demographic study comparing populations in closest proximity to the 
regulated sources to the

[[Page 48445]]

general population is not appropriate for this rulemaking due to lack 
of pollutants with localized effects.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that, before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. The EPA will submit a report containing 
this final rule and other required information to the United States 
Senate, the United States House of Representatives, and the Comptroller 
General of the United States prior to publication of the final rule in 
the Federal Register. A major rule cannot take effect until 60 days 
after it is published in the Federal Register. This action is not a 
``major rule'' as defined by 5 U.S.C. 804(2). The final rules will be 
effective on August 14, 2012.

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: May 14, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is amended as follows:

PART 60--[AMENDED]

0
1. The authority citation for part 60 continues to read as follows:

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

Subpart A--[Amended]

0
2. Section 60.17 is amended by revising paragraph (a)(82), adding and 
reserving paragraphs (a)(97) and (a)(98), and adding paragraph (a)(99) 
to read as follows:


Sec.  60.17  Incorporations by reference.

* * * * *
    (a) * * *
    (82) ASTM D6348-03, Standard Test Method for Determination of 
Gaseous Compounds by Extractive Direct Interface Fourier Transform 
Infrared (FTIR) Spectroscopy, approved October 1, 2003, IBR approved 
for Sec.  60.73a(b) of subpart Ga of this part, table 7 of subpart IIII 
of this part, and table 2 of subpart JJJJ of this part.
* * * * *
    (99) ASTM E1584-11, Standard Test Method for Assay of Nitric Acid, 
approved August 1, 2011, IBR approved for Sec.  60.73a(c) of subpart Ga 
of this part.
* * * * *

0
3. Section 60.70 is amended by revising paragraph (b) to read as 
follows:


Sec.  60.70  Applicability and designation of affected facility.

* * * * *
    (b) Any facility under paragraph (a) of this section that commences 
construction or modification after August 17, 1971, and on or before 
October 14, 2011 is subject to the requirements of this subpart. Any 
facility that commences construction or modification after October 14, 
2011 is subject to subpart Ga of this part.

0
4. Add Subpart Ga to read as follows:
Subpart Ga--Standards of Performance for Nitric Acid Plants for Which 
Construction, Reconstruction, or Modification Commenced After October 
14, 2011
Sec.
60.70a Applicability and designation of affected facility.
60.71a Definitions.
60.72a Standards.
60.73a Emissions testing and monitoring.
60.74a Affirmative defense for violations of emission standards 
during malfunction.
60.75a Calculations.
60.76a Recordkeeping.
60.77a Reporting.

Subpart Ga--Standards of Performance for Nitric Acid Plants for 
Which Construction, Reconstruction, or Modification Commenced After 
October 14, 2011


Sec.  60.70a  Applicability and designation of affected facility.

    (a) The provisions of this subpart are applicable to each nitric 
acid production unit, which is the affected facility.
    (b) This subpart applies to any nitric acid production unit that 
commences construction or modification after October 14, 2011.


Sec.  60.71a  Definitions.

    As used in this subpart, all terms not defined herein shall have 
the meaning given them in the Act and in subpart A of this part.
    Affirmative defense means, in the context of an enforcement 
proceeding, a response or defense put forward by a defendant, regarding 
which the defendant has the burden of proof, and the merits of which 
are independently and objectively evaluated in a judicial or 
administrative proceeding.
    Monitoring system malfunction means a sudden, infrequent, not 
reasonably preventable failure of the monitoring system to provide 
valid data. Monitoring system failures that are caused in part by poor 
maintenance or careless operation are not malfunctions. You are 
required to implement monitoring system repairs in response to 
monitoring system malfunctions or out-of-control periods, and to return 
the monitoring system to operation as expeditiously as practicable.
    Nitric acid production unit means any facility producing weak 
nitric acid by either the pressure or atmospheric pressure process.
    Operating day means a 24-hour period beginning at 12:00 a.m. during 
which the nitric acid production unit operated at any time during this 
period.
    Weak nitric acid means acid which is 30 to 70 percent in strength.


Sec.  60.72a  Standards.

    Nitrogen oxides. On and after the date on which the performance 
test required to be conducted by Sec.  60.73a(e) is completed, you may 
not discharge into the atmosphere from any affected facility any gases 
which contain NOX, expressed as NO2, in excess of 
0.50 pounds (lb) per ton of nitric acid produced, as a 30-day emission 
rate calculated based on 30 consecutive operating days, the production 
being expressed as 100 percent nitric acid. The emission standard 
applies at all times.


Sec.  60.73a  Emissions testing and monitoring.

    (a) General emissions monitoring requirements. You must install and 
operate a NOX concentration (ppmv) continuous emissions 
monitoring system (CEMS). You must also install and operate a stack gas 
flow rate monitoring system. With measurements of stack gas 
NOX concentration and stack gas flow rate, you will 
determine hourly NOX emissions rate (e.g., lb/hr) and with 
measured data of the hourly nitric acid production (tons), calculate 
emissions in units of the applicable emissions limit (lb/ton of 100 
percent acid produced). You must operate the monitoring system and 
report emissions during all operating periods including unit startup 
and shutdown, and malfunction.
    (b) Nitrogen oxides concentration continuous emissions monitoring 
system. (1) You must install, calibrate, maintain, and operate a CEMS 
for measuring and recording the concentration of NOX 
emissions in accordance with the provisions of Sec.  60.13 and 
Performance Specification 2

[[Page 48446]]

of Appendix B and Procedure 1 of Appendix F of this part. You must use 
cylinder gas audits to fulfill the quarterly auditing requirement at 
section 5.1 of Procedure 1 of Appendix F of this part for the 
NOX concentration CEMS.
    (2) For the NOX concentration CEMS, use a span value, as 
defined in Performance Specification 2, section 3.11, of Appendix B of 
this part, of 500 ppmv (as NO2). If you emit NOX 
at concentrations higher than 600 ppmv (e.g., during startup or 
shutdown periods), you must apply a second CEMS or dual range CEMS and 
a second span value equal to 125 percent of the maximum estimated 
NOX emission concentration to apply to the second CEMS or to 
the higher of the dual analyzer ranges during such periods.
    (3) For conducting the relative accuracy test audits, per 
Performance Specification 2, section 8.4, of Appendix B of this part 
and Procedure 1, section 5.1.1, of Appendix F of this part, use either 
EPA Reference Method 7, 7A, 7C, 7D, or 7E of Appendix A-4 of this part; 
EPA Reference Method 320 of Appendix A of part 63 of this chapter; or 
ASTM D6348-03 (incorporated by reference, see Sec.  60.17). To verify 
the operation of the second CEMS or the higher range of a dual analyzer 
CEMS described in paragraph (b)(2) of this section, you need not 
conduct a relative accuracy test audit but only the calibration drift 
test initially (found in Performance Specification 2, section 8.3.1, of 
Appendix B of this part) and the cylinder gas audit thereafter (found 
in Procedure 1, section 5.1.2, of Appendix F of this part).
    (4) If you use EPA Reference Method 7E of Appendix A-4 of this 
part, you must mitigate loss of NO2 in water according to 
the requirements in paragraphs (b)(4)(i), (ii), or (iii) of this 
section and verify performance by conducting the system bias checks 
required in EPA Reference Method 7E, section 8, of Appendix A-4 of this 
part according to (b)(4)(iv) of this section, or follow the dynamic 
spike procedure according to paragraph (b)(4)(v) of this section.
    (i) For a wet-basis measurement system, you must measure and report 
temperature of sample line and components (up to analyzer inlet) to 
demonstrate that the temperatures remain above the sample gas dew point 
at all times during the sampling.
    (ii) You may use a dilution probe to reduce the dew point of the 
sample gas.
    (iii) You may use a refrigerated-type condenser or similar device 
(e.g., permeation dryer) to remove condensate continuously from sample 
gas while maintaining minimal contact between condensate and sample 
gas.
    (iv) If your analyzer measures nitric oxide (NO) and nitrogen 
dioxide (NO2) separately, you must use both NO and 
NO2 calibration gases. Otherwise, you must substitute 
NO2 calibration gas for NO calibration gas in the 
performance of system bias checks.
    (v) You must conduct dynamic spiking according to EPA Reference 
Method 7E, section 16.1, of Appendix A-4 of this part using 
NO2 as the spike gas.
    (5) Instead of a NOX concentration CEMS meeting 
Performance Specification 2, you may apply an FTIR CEMS meeting the 
requirements of Performance Specification 15 of Appendix B of this part 
to measure NOX concentrations. Should you use an FTIR CEMS, 
you must replace the Relative Accuracy Test Audit requirements of 
Procedure 1 of appendix F of this part with the validation requirements 
and criteria of Performance Specification 15, sections 11.1.1 and 12.0, 
of Appendix B of this part.
    (c) Determining NOX mass emissions rate values. You must use the 
NOX concentration CEMS, acid production, gas flow rate 
monitor and other monitoring data to calculate emissions data in units 
of the applicable limit (lb NOX/ton of acid produced 
expressed as 100 percent nitric acid).
    (1) You must install, calibrate, maintain, and operate a CEMS for 
measuring and recording the stack gas flow rates to use in combination 
with data from the CEMS for measuring emissions concentrations of 
NOX to produce data in units of mass rate (e.g., lb/hr) of 
NOX on an hourly basis. You will operate and certify the 
continuous emissions rate monitoring system (CERMS) in accordance with 
the provisions of Sec.  60.13 and Performance Specification 6 of 
Appendix B of this part. You must comply with the following provisions 
in (c)(1)(i) through (iii) of this section.
    (i) You must use a stack gas flow rate sensor with a full scale 
output of at least 125 percent of the maximum expected exhaust 
volumetric flow rate (see Performance Specification 6, section 8, of 
Appendix B of this part).
    (ii) For conducting the relative accuracy test audits, per 
Performance Specification 6, section 8.2 of Appendix B of this part and 
Procedure 1, section 5.1.1, of Appendix F of this part, you must use 
either EPA Reference Method 2, 2F, or 2G of Appendix A-4 of this part. 
You may also apply Method 2H in conjunction with other velocity 
measurements.
    (iii) You must verify that the CERMS complies with the quality 
assurance requirements in Procedure 1 of Appendix F of this part. You 
must conduct relative accuracy testing to provide for calculating the 
relative accuracy for RATA and RAA determinations in units of lb/hour.
    (2) You must determine the nitric acid production parameters 
(production rate and concentration) by installing, calibrating, 
maintaining, and operating a permanent monitoring system (e.g., weigh 
scale, volume flow meter, mass flow meter, tank volume) to measure and 
record the weight rates of nitric acid produced in tons per hour. If 
your nitric acid production rate measurements are for periods longer 
than hourly (e.g., daily values), you will determine average hourly 
production values, tons acid/hr, by dividing the total acid production 
by the number of hours of process operation for the subject measurement 
period. You must comply with the following provisions in (c)(2)(i) 
through (iv) of this section.
    (i) You must verify that each component of the monitoring system 
has an accuracy and precision of no more than 5 percent of 
full scale.
    (ii) You must analyze product concentration via titration or by 
determining the temperature and specific gravity of the nitric acid. 
You may also use ASTM E1584-11 (incorporated by reference, see Sec.  
60.17), for determining the concentration of nitric acid in percent. 
You must determine product concentration daily.
    (iii) You must use the acid concentration to express the nitric 
acid production as 100 percent nitric acid.
    (iv) You must record the nitric acid production, expressed as 100 
percent nitric acid, and the hours of operation.
    (3) You must calculate hourly NOX emissions rates in 
units of the standard (lb/ton acid) for each hour of process operation. 
For process operating periods for which there is little or no acid 
production (e.g., startup or shutdown), you must use the average hourly 
acid production rate determined from the data collected over the 
previous 30 days of normal acid production periods (see Sec.  60.75a).
    (d) Continuous monitoring system. For each continuous monitoring 
system, including NOX concentration measurement, volumetric 
flow rate measurement, and nitric acid production measurement 
equipment, you must meet the requirements in paragraphs (d)(1) through 
(3) of this section.
    (1) You must operate the monitoring system and collect data at all 
required intervals at all times the affected facility

[[Page 48447]]

is operating except for periods of monitoring system malfunctions or 
out-of-control periods as defined in Appendix F, sections 4 and 5, of 
this part, repairs associated with monitoring system malfunctions or 
out-of-control periods, and required monitoring system quality 
assurance or quality control activities including, as applicable, 
calibration checks and required zero and span adjustments.
    (2) You may not use data recorded during monitoring system 
malfunctions or out-of-control periods, repairs associated with 
monitoring system malfunctions or out-of-control periods, or required 
monitoring system quality assurance or control activities in 
calculations used to report emissions or operating levels. You must use 
all the data collected during all other periods in calculating 
emissions and the status of compliance with the applicable emissions 
limit in accordance with Sec.  60.72a(a).
    (e) Initial performance testing. You must conduct an initial 
performance test to demonstrate compliance with the NOX 
emissions limit under Sec.  60.72a(a) beginning in the calendar month 
following initial certification of the NOX and flow rate 
monitoring CEMS. The initial performance test consists of collection of 
hourly NOX average concentration, mass flow rate recorded 
with the certified NOX concentration and flow rate CEMS and 
the corresponding acid generation (tons) data for all of the hours of 
operation for the first 30 days beginning on the first day of the first 
month following completion of the CEMS installation and certification 
as described above. You must assure that the CERMS meets all of the 
data quality assurance requirements as per Sec.  60.13 and Appendix F, 
Procedure 1, of this part and you must use the data from the CERMS for 
this compliance determination.


Sec.  60.74a  Affirmative defense for violations of emission standards 
during malfunction.

    In response to an action to enforce the standards set forth in 
Sec.  60.72a, you may assert an affirmative defense to a claim for 
civil penalties for violations of such standards that are caused by 
malfunction, as defined at 40 CFR 60.2. Appropriate penalties may be 
assessed, however, if you fail to meet your burden of proving all of 
the requirements in the affirmative defense. The affirmative defense 
shall not be available for claims for injunctive relief.
    (a) To establish the affirmative defense in any action to enforce 
such a standard, you must timely meet the reporting requirements in 
paragraph (b) of this section, and must prove by a preponderance of 
evidence that:
    (1) The violation:
    (i) Was caused by a sudden, infrequent, and unavoidable failure of 
air pollution control equipment, process equipment, or a process to 
operate in a normal or usual manner; and
    (ii) Could not have been prevented through careful planning, proper 
design or better operation and maintenance practices; and
    (iii) Did not stem from any activity or event that could have been 
foreseen and avoided, or planned for; and
    (iv) Was not part of a recurring pattern indicative of inadequate 
design, operation, or maintenance; and
    (2) Repairs were made as expeditiously as possible when a violation 
occurred. Off-shift and overtime labor were used, to the extent 
practicable to make these repairs; and
    (3) The frequency, amount, and duration of the violation (including 
any bypass) were minimized to the maximum extent practicable; and
    (4) If the violation resulted from a bypass of control equipment or 
a process, then the bypass was unavoidable to prevent loss of life, 
personal injury, or severe property damage; and
    (5) All possible steps were taken to minimize the impact of the 
violation on ambient air quality, the environment, and human health; 
and
    (6) All emissions monitoring and control systems were kept in 
operation if at all possible, consistent with safety and good air 
pollution control practices; and
    (7) All of the actions in response to the violation were documented 
by properly signed, contemporaneous operating logs; and
    (8) At all times, the affected facility was operated in a manner 
consistent with good practices for minimizing emissions; and
    (9) A written root cause analysis has been prepared, the purpose of 
which is to determine, correct, and eliminate the primary causes of the 
malfunction and the violation resulting from the malfunction event at 
issue. The analysis shall also specify, using best monitoring methods 
and engineering judgment, the amount of any emissions that were the 
result of the malfunction.
    (b) Report. The owner or operator seeking to assert an affirmative 
defense shall submit a written report to the Administrator with all 
necessary supporting documentation, that it has met the requirements 
set forth in paragraph (a) of this section. This affirmative defense 
report shall be included in the first periodic compliance, deviation 
report or excess emission report otherwise required after the initial 
occurrence of the violation of the relevant standard (which may be the 
end of any applicable averaging period). If such compliance, deviation 
report or excess emission report is due less than 45 days after the 
initial occurrence of the violation, the affirmative defense report may 
be included in the second compliance, deviation report or excess 
emission report due after the initial occurrence of the violation of 
the relevant standard.


Sec.  60.75a  Calculations.

    (a) You must calculate the 30 operating day rolling arithmetic 
average emissions rate in units of the applicable emissions standard 
(lb NOX/ton 100 percent acid produced) at the end of each 
operating day using all of the quality assured hourly average CEMS data 
for the previous 30 operating days.
    (b) You must calculate the 30 operating day average emissions rate 
according to Equation 1:
[GRAPHIC] [TIFF OMITTED] TR14AU12.016

Where:

E30 = 30 operating day average emissions rate of 
NOX, lb NOX/ton of 100 percent 
HNO3;
Ci = concentration of NOX for hour i, ppmv;
Qi = volumetric flow rate of effluent gas for hour i, 
where Ci and Qi are on the same basis (either 
wet or dry), scf/hr;
Pi = total acid produced during production hour i, tons 
100 percent HNO3;
k = conversion factor, 1.194 x 10-\7\ for NOX; 
and
n = number of operating hours in the 30 operating day period, i.e., 
n is between 30 and 720.


Sec.  60.76a  Recordkeeping.

    (a) For the NOX emissions rate, you must keep records 
for and results of the performance evaluations of the continuous 
emissions monitoring systems.
    (b) You must maintain records of the following information for each 
30 operating day period:
    (1) Hours of operation.
    (2) Production rate of nitric acid, expressed as 100 percent nitric 
acid.
    (3) 30 operating day average NOX emissions rate values.
    (c) You must maintain records of the following time periods:
    (1) Times when you were not in compliance with the emissions 
standards.
    (2) Times when the pollutant concentration exceeded full span of 
the NOX monitoring equipment.
    (3) Times when the volumetric flow rate exceeded the high value of 
the

[[Page 48448]]

volumetric flow rate monitoring equipment.
    (d) You must maintain records of the reasons for any periods of 
noncompliance and description of corrective actions taken.
    (e) You must maintain records of any modifications to CEMS which 
could affect the ability of the CEMS to comply with applicable 
performance specifications.
    (f) For each malfunction, you must maintain records of the 
following information:
    (1) Records of the occurrence and duration of each malfunction of 
operation (i.e., process equipment) or the air pollution control and 
monitoring equipment.
    (2) Records of actions taken during periods of malfunction to 
minimize emissions in accordance with Sec.  60.11(d), including 
corrective actions to restore malfunctioning process and air pollution 
control and monitoring equipment to its normal or usual manner of 
operation.


Sec.  60.77a  Reporting.

    (a) The performance test data from the initial and subsequent 
performance tests and from the performance evaluations of the 
continuous monitors must be submitted to the Administrator at the 
appropriate address as shown in 40 CFR 60.4.
    (b) The following information must be reported to the Administrator 
for each 30 operating day period where you were not in compliance with 
the emissions standard:
    (1) Time period;
    (2) NOX emission rates (lb/ton of acid produced);
    (3) Reasons for noncompliance with the emissions standard; and
    (4) Description of corrective actions taken.
    (c) You must also report the following whenever they occur:
    (1) Times when the pollutant concentration exceeded full span of 
the NOX pollutant monitoring equipment.
    (2) Times when the volumetric flow rate exceeded the high value of 
the volumetric flow rate monitoring equipment.
    (d) You must report any modifications to CERMS which could affect 
the ability of the CERMS to comply with applicable performance 
specifications.
    (e) Within 60 days of completion of the relative accuracy test 
audit (RATA) required by this subpart, you must submit the data from 
that audit to EPA's WebFIRE database by using the Compliance and 
Emissions Data Reporting Interface (CEDRI) that is accessed through 
EPA's Central Data Exchange (CDX) (https://cdx.epa.gov/SSL/cdx/EPA_Home.asp). You must submit performance test data in the file format 
generated through use of EPA's Electronic Reporting Tool (ERT) (http://www.epa.gov/ttn/chief/ert/index.html). Only data collected using test 
methods listed on the ERT Web site are subject to this requirement for 
submitting reports electronically to WebFIRE. Owners or operators who 
claim that some of the information being submitted for performance 
tests is confidential business information (CBI) must submit a complete 
ERT file including information claimed to be CBI on a compact disk or 
other commonly used electronic storage media (including, but not 
limited to, flash drives) by registered letter to EPA and the same ERT 
file with the CBI omitted to EPA via CDX as described earlier in this 
paragraph. Mark the compact disk or other commonly used electronic 
storage media clearly as CBI and mail to U.S. EPA/OAPQS/CORE CBI 
Office, Attention: WebFIRE Administrator, MD C404-02, 4930 Old Page 
Rd., Durham, NC 27703. At the discretion of the delegated authority, 
you must also submit these reports to the delegated authority in the 
format specified by the delegated authority. You must submit the other 
information as required in the performance evaluation as described in 
Sec.  60.2 and as required in this chapter.
    (f) If a malfunction occurred during the reporting period, you must 
submit a report that contains the following:
    (1) The number, duration, and a brief description for each type of 
malfunction which occurred during the reporting period and which caused 
or may have caused any applicable emission limitation to be exceeded.
    (2) A description of actions taken by an owner or operator during a 
malfunction of an affected facility to minimize emissions in accordance 
with Sec.  60.11(d), including actions taken to correct a malfunction.
[FR Doc. 2012-19691 Filed 8-13-12; 8:45 am]
BILLING CODE 6560-50-P


