Today, November 16, 2025, IHMM filed comments on EPA’s proposed rulemaking – EPA–HQ–OAR– 2025–0078; FRL–5774–01– OAR – National Emission Standards for Hazardous Air Pollutants From Secondary Lead Smelting Technology Review.
Deadline November 17, 2025
As always, IHMM’s comments are led by illustrating the breadth and strength of IHMM’s credentials; in this case, the CHMM and CHMP.
On behalf of the hazardous materials management community and the Institute of Hazardous Materials Management, we submit these comments in response to EPA’s proposed rule entitled “National Emission Standards for Hazardous Air Pollutants from Secondary Lead Smelting—Technology Review”, published October 1, 2025. IHMM is an ANSI-accredited, ISO 17024-compliant credentialing body whose certificants—including Certified Hazardous Materials Managers (CHMM®) and Certified Hazardous Materials Practitioners (CHMP®)- are responsible for environmental compliance, hazardous materials management, emissions monitoring, incident response, and operational safety across a wide range of regulated industries.
EPA proposes to retain existing NESHAP emission limits for secondary lead smelting because it did not identify cost-effective developments in practices or control technologies during the technology review under Clean Air Act § 112(d)(6). In addition, EPA proposes amendments relating to:
1. updated monitoring requirements and the use of surrogate parameters;
2. revisions applicable to startup, shutdown, and malfunction (SSM) periods;
3. elimination of the malfunction affirmative defense;
4. mandatory electronic reporting of performance tests and compliance data through CDX/CEDRI; and
5. reconsideration, through solicited comment, of the prior “ample margin of safety” determination.
IHMM submitted extensive comments on #3, the proposal to eliminate the “malfunction affirmative defense.”
An affirmative defense is a legal doctrine permitting a regulated entity to avoid or mitigate civil liability when it demonstrates that the violation, although factually established, resulted from circumstances outside the operator’s reasonable control. It does not contest the occurrence of an exceedance; instead, it provides an evidentiary pathway through which the operator may show that:
the malfunction was sudden, unavoidable, and not caused by neglect or poor maintenance;
the operator took all feasible measures to minimize emissions; and
prompt corrective action, root-cause investigation, and reporting were completed.
This doctrine mirrors long-standing administrative principles such as “unavoidable casualty” and is essential in complex industrial processes where some malfunctions are unavoidable despite prudent operation.
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