[Federal Register: June 25, 2009 (Volume 74, Number 121)]
[Rules and Regulations]
[Page 30365-30399]
[DOCID:fr25jn09-13]

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Part II

Environmental Protection Agency

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40 CFR Part 63

Revision of Source Category List for Standards Under Section 112(k) of
the Clean Air Act; National Emission Standards for Hazardous Air
Pollutants: Area Source Standards for Aluminum, Copper, and Other
Nonferrous Foundries; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2008-0236; FRL-8920-9]
RIN 2060-AO93

Revision of Source Category List for Standards Under Section
112(k) of the Clean Air Act; National Emission Standards for Hazardous
Air Pollutants: Area Source Standards for Aluminum, Copper, and Other
Nonferrous Foundries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is revising the area source category list by changing the
name of the ``Secondary Aluminum Production'' category to ``Aluminum
Foundries'' and the ``Nonferrous Foundries, not elsewhere classified
(nec)'' category to ``Other Nonferrous Foundries.'' At the same time,
EPA is issuing final national emission standards for the Aluminum
Foundries, Copper Foundries, and Other Nonferrous Foundries area source
categories. These final emission standards for new and existing sources
reflect EPA's determination regarding the generally available control
technologies or management practices (GACT) for each of the three area
source categories.

DATES: The final rule is effective on June 25, 2009. The incorporation
by reference of certain publications listed in this rule is effective
as of June 25, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2008-0236. All documents in the docket are listed in the
Federal Docket Management System index at http://www.regulations.gov.
Although listed in the index, some information is not publicly
available (e.g., confidential business information (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 http://www.regulations.gov or in hard
copy at the EPA Docket Center, Public Reading Room, EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone number for the Public Reading
Room is<PHONE_NUMBER>, and the telephone number for the Air Docket is
(202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For questions about the final
standards for aluminum foundries, contact Mr. David Cole, Office of Air
Quality Planning and Standards, Outreach and Information Division,
Regulatory Development and Policy Analysis Group (C404-05),
Environmental Protection Agency, Research Triangle Park, NC 27711;
Telephone Number:<PHONE_NUMBER>; Fax Number:<PHONE_NUMBER>; E-mail
address<EMAIL_ADDRESS>For questions about the final standards
for copper foundries and other nonferrous foundries, contact Mr. Gary
Blais, Office of Air Quality Planning and Standards, Outreach and
Information Division, Regulatory Development and Policy Analysis Group
(C404-05), Environmental Protection Agency, Research Triangle Park, NC
27711; Telephone Number:<PHONE_NUMBER>; Fax Number:<PHONE_NUMBER>; E-
mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Outline. The information 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 for This Final Rule
III. Revision to the Source Category List
IV. Summary of Changes Since Proposal
V. Summary of Final Standards
    A. Is My Foundry Subject to This Subpart?
    B. Do These Standards Apply to My Source?
    C. When Must I Comply With These Standards?
    D. What Are the Final Standards?
    E. What Are the Testing and Monitoring Requirements?
    F. What Are the Notification, Recordkeeping, and Reporting
Requirements?
    G. What Are the Title V Permit Requirements?
VI. Summary of Comments and Responses
    A. GACT Issues
    B. The Source Category Designation
    C. Subcategorization and Applicability Issues
    D. Management Practices
    E. Definitions
    F. Monitoring, Reporting and Recordkeeping
    G. Testing Requirements
    H. Exemption From Title V Permitting Requirements
    I. Miscellaneous
VII. Impacts of the Final Standards
VIII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer 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?

    The regulated categories and entities potentially affected by the
final rule include:

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                 Category                  NAICS code \1\              Examples of regulated entities
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Industry:
    Aluminum Foundries...................          331524  Area source facilities that pour molten aluminum into
                                                            molds to manufacture aluminum castings (excluding
                                                            die casting).
    Copper Foundries.....................          331525  Area source facilities that pour molten copper and
                                                            copper-based alloys (e.g., brass, bronze) into molds
                                                            to manufacture copper and copper-based alloy
                                                            castings (excluding die casting).
    Other Nonferrous Foundries...........          331528  Area source facilities that pour molten nonferrous
                                                            metals (except aluminum and copper) into molds to
                                                            manufacture nonferrous castings (excluding die
                                                            casting). Establishments in this industry purchase
                                                            nonferrous metals, such as nickel, zinc, and
                                                            magnesium that are made in other establishments.
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\1\ North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. To determine whether your facility is regulated by this action,
you should examine the applicability criteria in 40 CFR 63.11544 of
subpart ZZZZZZ (National Emission Standards for Hazardous Air
Pollutants: Area Source Standards for Aluminum, Copper, and Other
Nonferrous Foundries). If you have any questions regarding the
applicability of this action to a particular entity, consult either the
air permit authority for the entity or your EPA Regional
representative, as listed in 40 CFR 63.13 of subpart A (General
Provisions).

B. Where Can I Get a Copy of This Document?

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

C. Judicial Review

    Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of this final rule is available only by filing a petition for review in
the United States Court of Appeals for the District of Columbia Circuit
by August 24, 2009. Under section 307(b)(2) of the CAA, 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.
    Section 307(d)(7)(B) of the CAA further provides that ``[o]nly an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised during judicial review.'' This section also
provides a mechanism for EPA to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to EPA 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, U.S. EPA, Room 3000, Ariel Rios Building, 1200
Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the
person(s) 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), U.S. EPA, 1200
Pennsylvania Ave., NW., Washington, DC 20460.

II. Background Information for This Final Rule

    Section 112(d) of the CAA requires us to establish national
emission standards for hazardous air pollutants (NESHAP) for both major
and area sources of hazardous air pollutants (HAP) that are listed for
regulation under CAA section 112(c). A major source emits or has the
potential to emit 10 tons per year (tpy) or more of any single HAP or
25 tpy or more of any combination of HAP. An area source is a
stationary source that is not a major source.
    Section 112(k)(3)(B) of the CAA calls for EPA to identify at least
30 HAP that, as the result of emissions from area sources, pose the
greatest threat to public health in the largest number of urban areas.
EPA implemented this provision in 1999 in the Integrated Urban Air
Toxics Strategy (64 FR 38715, July 19, 1999). In the Strategy, EPA
identified 30 HAP that pose the greatest potential health threat in
urban areas; these HAP are referred to as the ``30 urban HAP.'' Section
112(c)(3) requires EPA to list sufficient categories or subcategories
of area sources to ensure that area sources representing 90 percent of
the emissions of the 30 urban HAP are subject to regulation. We
implemented these requirements through the Strategy and subsequent
updates to the source category list. The aluminum foundry area source
category was listed pursuant to section 112(c)(3) for its contribution
toward meeting the 90 percent requirement for beryllium, cadmium, lead,
manganese, and nickel compounds. The copper foundry area source
category was listed due to emissions of lead, manganese, and nickel
compounds, and the other nonferrous foundry area source category was
listed due to emissions of chromium, lead, and nickel compounds.
    Under CAA section 112(d)(5), the Administrator may, in lieu of
issuing a MACT standard pursuant to CAA section 112(d)(2), elect to
promulgate standards or requirements for area sources ``which provide
for the use of generally available control technology or management
practices by such sources to reduce emissions of hazardous air
pollutants.'' As explained in the preamble to the proposed NESHAP, EPA
proposed, and is finalizing in today's action, standards based on
generally available control technology and management practices (GACT).
    We are issuing these final standards in response to a court-ordered
deadline that requires EPA to issue standards for these three foundry
source categories listed pursuant to section 112(c)(3) and (k) by June
15, 2009 (Sierra Club v. Johnson, No. 01-1537, (D.D.C., March 2006)).

III. Revision to the Source Category List

    This notice announces two revisions to the area source category
list developed under our Integrated Urban Air Toxics Strategy pursuant
to section 112(c)(3) of the CAA. The first revision changes the name of
the ``Secondary Aluminum Production'' source category to ``Aluminum
Foundries.'' The second revision changes the name of the ``Nonferrous
Foundries, nec'' source category to ``Other Nonferrous Foundries.'' \1\
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    \1\ We did not receive any adverse comments on the proposed
revisions to the list.
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IV. Summary of Changes Since Proposal

    This final rule contains several clarifications to the proposed
rule as a result of public comments. We explain the reasons for these
changes in detail in the summary of comments and responses (section VI
of this preamble).
    First, we established that the production from calendar year 2010
is used to determine if your existing aluminum, copper, or other
nonferrous foundry melted more than 600 tpy of aluminum, copper, other
nonferrous metals, and all associated alloys and, therefore, is subject
to the rule. If a foundry with an existing melting operation increases
production after 2010 such that the annual metal melt production equals
or exceeds 600 tpy, it must notify the permitting authority within 30
days after the end of that calendar year and comply with the rule
within 2 years following the date of the notification. If a foundry
with an existing melting operation subsequently decreases annual
production after 2010 such that it produces less than 600 tpy, the
foundry remains subject to the rule. Foundries with new melting
operations are subject to the rule if the annual metal melt capacity at
the time of startup equals or exceeds 600 tpy. If a foundry with a new
melting operation increases capacity after startup such that the annual
metal melt capacity equals or

exceeds 600 tpy, it must notify the permitting authority within 30 days
after the capacity increase and comply with the rule at the time of the
capacity increase. If a foundry with a new melting operation
subsequently decreases annual capacity after startup such that the
capacity is less than 600 tpy, the foundry remains subject to the rule.
    Second, we revised the rule to clarify that the production from
calendar year 2010 for existing sources (or capacity at the time of
startup for new sources) is used to determine if you are a small copper
or other nonferrous foundry or a large copper or other nonferrous
foundry. Large foundries are subject to both management practices and
particulate matter (PM) emission limits.
    The final rule also addresses comments on production levels that
may fluctuate above or below the 6,000 tpy annual copper and other
nonferrous metal melt production (excluding aluminum) and whether the
PM/metal HAP control requirements apply to copper and other nonferrous
foundries when the melt production rises above or falls below 6,000
tpy. If a small copper or other nonferrous foundry with an existing
melting operation increases production after the 2010 calendar year
such that the annual copper and other nonferrous metal melt production
equals or exceeds 6,000 tons, the foundry must submit a notification of
foundry reclassification to the Administrator (or his or her authorized
representative) within 30 days after the end of that calendar year and
comply with the requirements for large copper or other nonferrous
foundries no later than 2 years after the date of the foundry's
notification that the annual copper and other nonferrous metal melt
production equaled or exceeded 6,000 tons. If a large copper or other
nonferrous foundry with an existing melting operation subsequently
decreases production such that the quantity of copper and other
nonferrous metal melted is less than 6,000 tpy, it remains a large
copper or other nonferrous foundry.
    If, subsequent to start-up, a new source small copper or other
nonferrous foundry increases its melting operation capacity such that
the annual copper and other nonferrous metal melt capacity equals or
exceeds 6,000 tons, the foundry must submit a notification of foundry
reclassification to the Administrator (or his or her authorized
representative) within 30 days after the increase in capacity and
comply with the requirements for large copper or other nonferrous
foundries at the time of the capacity increase. If a new source large
copper or other nonferrous foundry subsequently decreases metal melt
capacity such that the capacity is less than 6,000 tpy, it remains a
large copper or other nonferrous foundry and must continue to comply
with the PM/metal HAP control requirements.
    We further clarified in the final rule that, in determining whether
a source's ``annual metal melt production'' (for existing sources) and
``annual metal melt capacity'' (for new sources) exceeds 600 tpy,
sources must identify the total amount of only aluminum, copper, and
other nonferrous metal melted for existing sources (or the capacity to
melt only aluminum, copper, and other nonferrous metal for new
sources), and not the total amount of all types of metal melted (or the
capacity to melt all metals for new sources). The comments EPA received
noted that this clarification is particularly important for aluminum,
copper, and other nonferrous melting operations that are co-located
with ferrous metal melting operations. Similarly, we also clarified
that the 6,000 tpy threshold between small and large copper and other
nonferrous foundries (excluding aluminum foundries) is based on the
annual amount of copper and other nonferrous metal (excluding aluminum)
that is melted.
    We revised the recordkeeping requirements to remove the requirement
to record the date and time of each melting operation. Several
commenters, specifically for smaller sources, expressed that the burden
of recording and keeping these records would not have provided useful
documentation that the required management practices were being
followed. We have added a provision to the final rule that requires
monthly inspections to document that the management practices are being
followed during melting operations.
    We also adjusted the visible emission (VE) monitoring requirements
to allow a reduction from daily to weekly observations after 30
consecutive days of no VE instead of 90 consecutive days. Several
commenters noted that there are some special occasions when the cause
of VE cannot be remedied within 3 hours as proposed. We changed the VE
requirements to parallel those for bag leak detection systems, which
allow more than 3 hours if the owner or operator identifies the
specific conditions in a monitoring plan, adequately explains why more
than 3 hours is necessary, and demonstrates that the requested time
will alleviate the problem as expeditiously as practicable.
    Based on our survey results and a review of operating permits, we
expect most (if not all) large copper and other nonferrous foundries
will use a fabric filter to control emissions from melting operations.
However, it is conceivable that a new or existing foundry could use a
device other than a fabric filter. We revised the monitoring
requirements for large copper and other nonferrous foundries that use a
control device other than a fabric filter to require that they submit a
request to use alternative monitoring procedures as required by the
General Provisions (section 63.8(f)(4)). Submitting this request is
consistent with EPA's requirements and procedures for alternative
monitoring.
    Finally, we have clarified that the final rule does not include
other source categories, such as secondary aluminum production,
secondary copper production, secondary nonferrous metal production, and
primary copper smelting. We have explicitly stated in the rule that
primary and secondary metal melting operations are not subject to this
foundry rule. We clarified the definition of foundries to include the
casting of complex metal shapes and to exclude the products cast by
primary and secondary metal production facilities (e.g., sows, ingots,
bars, anode copper, rods, and copper cake).

V. Summary of Final Standards

A. Is My Foundry Subject to This Subpart?

    The three source categories subject to this rule include aluminum
foundries, copper foundries, and other nonferrous foundries. Any
aluminum, copper, or other nonferrous foundry is subject to this
subpart if it (1) is an area source defined by 40 CFR 63.2, (2) has an
annual metal melt production in calendar year 2010 for existing
affected sources or an annual metal melt capacity at startup for new
affected sources of 600 tpy or more, and (3) is an aluminum foundry
that uses material containing ``aluminum foundry HAP,'' a copper
foundry that uses material containing ``copper foundry HAP,'' or an
other nonferrous foundry uses material containing ``other nonferrous
foundry HAP'' (as these terms are defined in more detail below).
    Material containing ``aluminum foundry HAP'' is any material that
contains beryllium, cadmium, lead, or nickel in amounts greater than or
equal to 0.1 percent by weight (as the metal), or contains manganese in
amounts greater than or equal to 1.0 percent by weight (as the metal).
Material containing ``copper foundry HAP'' is any material that
contains lead or nickel in amounts greater than or equal to 0.1 percent
by weight (as the metal), or

contains manganese in amounts greater than or equal to 1.0 percent by
weight (as the metal). Material containing ``other nonferrous foundry
HAP'' is any material that contains chromium, lead, or nickel in
amounts greater than or equal to 0.1 percent by weight (as the metal).
The owner or operator must determine whether material contains
aluminum, copper, or other nonferrous foundry HAP, for example, by
using formulation data provided by the manufacturer or supplier, such
as the material safety data sheet (MSDS).

B. Do These Standards Apply to My Source?

    The standards apply to the melting operations (the affected source)
at foundries subject to the rule as discussed above. More specifically,
the affected source is (and the standards apply to) (1) the collection
of all aluminum foundry melting operations that melt any material
containing aluminum foundry HAP, (2) the collection of all copper
foundry melting operations that melt any material containing copper
foundry HAP, and (3) the collection of all other nonferrous foundry
melting operations that melt any material containing other nonferrous
foundry HAP. ``Melting operations'' means the collection of furnaces
(e.g., induction, reverberatory, crucible, tower, dry hearth) used to
melt metal ingot, alloyed ingot and/or metal scrap to produce molten
metal that is poured into molds to make castings.
    A foundry is an existing affected source if construction or
reconstruction of the melting operations commenced on or before
February 9, 2009. A foundry is a new affected source if construction or
reconstruction of the melting operations commenced after February 9,
2009. Because the affected source is the collection of all the melting
operations at, for example, a copper foundry, addition of new melting
equipment at an existing affected source (i.e., a source constructed
before February 9, 2009) does not subject the foundry to the GACT
standards for a new affected source. Furthermore, the standards for a
new affected source would only apply to an aluminum, copper or other
nonferrous foundry that is constructed or reconstructed after February
9, 2009.

C. When Must I Comply With These Standards?

    The owner or operator of an existing affected source is required to
comply with the rule no later than June 27, 2011. The owner or operator
of a new affected source is required to comply by June 25, 2009 or upon
startup of the source, whichever occurs later.

D. What Are the Final Standards?

    These final standards establish that the following management
practices are GACT for all new and existing affected sources at
aluminum, copper, and other nonferrous foundries: (1) Cover or enclose
melting furnaces that are equipped with covers or enclosures during the
melting process, to the extent practicable (e.g., except when access is
needed, including, but not limited to, charging, alloy addition, and
tapping); and (2) purchase only scrap material that has been depleted
(to the extent practicable) of ``aluminum foundry HAP,'' ``copper
foundry HAP'', or ``other nonferrous foundry HAP'' in the materials
charged to the melting furnace(s), excluding HAP metals that are
required to be added for the production of alloyed castings or that are
required to meet written specifications for the casting. Owners or
operators of affected sources must develop and operate under a written
management practices plan for minimizing emissions from melting
operations that apply the two techniques described above. The rule also
requires owners or operators to retain the plan and the appropriate
records to demonstrate that the two techniques are used during melting
operations. Both EPA and the State permitting authority can request to
review the management practices plan at their discretion.
    In addition, the owner or operator of an existing affected source
at a large copper foundry and other nonferrous foundry (i.e., one that
melts at least 6,000 tpy of copper and other nonferrous metal,
excluding aluminum) is required to achieve a PM control efficiency of
at least 95.0 percent or an outlet PM concentration of at most 0.015
grains per dry standard cubic foot (gr/dscf). The owner or operator of
a new affected source at a large copper foundry or other nonferrous
foundry must achieve a PM control efficiency of at least 99.0 percent
or an outlet PM concentration of at most 0.010 gr/dscf.

E. What Are the Testing and Monitoring Requirements?

1. Performance Test
    No performance tests are required for an aluminum foundry or for a
small copper or other nonferrous foundry (i.e., one that melts less
than 6,000 tpy of copper and other nonferrous metal, excluding
aluminum) because they are subject only to the management practices as
described in 63.11550(a). The owner or operator of any existing or any
new affected source at a large copper or other nonferrous foundry is
required to conduct a one-time initial performance test to demonstrate
compliance with the PM/metal HAP standard. The owner or operator is
required to test PM emissions from melting operations using EPA Method
5 or 5D (40 CFR part 60, appendix A-3) or EPA Method 17 (40 CFR part
60, appendix A-6).
    A performance test is not required for an existing affected source
if a prior performance test has been conducted within 5 years of the
compliance date using the methods required by this final rule, and
either (1) no process changes have been made since the test, or (2) the
owner or operator can demonstrate to the satisfaction of the permitting
authority that the results of the performance test, with or without
adjustments, reliably demonstrate compliance despite process changes.
2. Monitoring Requirements
    The owner or operator of a new or existing affected source (i.e.,
the collection of melting operations as defined in section 63.11556 of
this final rule) is required to record information to document
conformance with the management practices plan, including conducting
monthly inspections, to document that the management practices are
being followed.
    For existing affected sources at large copper or other nonferrous
foundries where PM emissions are controlled by a fabric filter, the
owner or operator is required to conduct daily observations of VE from
the fabric filter outlet during melting operations. We do not expect
any VE from a fabric filter that is properly designed, operated, and
maintained. Should any of the daily observations reveal any VE, the
owner or operator must initiate corrective action to determine the
cause of the VE within 1 hour and alleviate the cause of the emissions
within 3 hours of the observations by taking whatever corrective
actions are necessary. The owner or operator may take more than 3 hours
to alleviate the cause of VE if the owner or operator has already
identified the specific condition requiring more time in a monitoring
plan. In addition to identifying the condition in the plan, the owner
or operator must also adequately explain in the monitoring plan why it
is not feasible to alleviate this condition within 3 hours of the time
the VE occurs, provide an estimate of the time that it would take to
alleviate the cause, and demonstrate that the requested time will
ensure alleviation of this condition

as expeditiously as practicable. The owner or operator must record the
results of the daily observations and any corrective actions taken in
response to VE. Owners or operators of large copper or other nonferrous
foundries could decrease the frequency of observations from daily to
weekly if the foundry operates for at least 30 consecutive days without
any VE. The owner or operator must maintain adequate records to support
the claim of no VE for the 30-day operating period. After the foundry
converts to a weekly observation schedule, if any VE are observed, the
foundry must revert back to daily observations. The foundry may
subsequently reduce the observations to weekly if it operates for at
least 30 consecutive days without any VE.
    As an alternative to the VE observations, an owner or operator of
an existing affected source at a large copper or other nonferrous
foundry may elect to operate and maintain a bag leak detection system
as described below for a new affected source at a large copper or other
nonferrous foundry.
    The owner or operator of a new affected source (i.e., collection of
melting operations) at a large copper or other nonferrous foundry must
install, operate and maintain a bag leak detection system to monitor
the affected source. The owner or operator of a new affected source at
a large copper or other nonferrous foundry must also prepare a site-
specific monitoring plan for each bag leak detection system. As with
monitoring the VE for an existing affected source, EPA expects that a
properly designed, operated and maintained filter system will not
trigger the leak detection system.
    Our study of the industry indicates that fabric filters are used as
the control device for melting furnaces; however, a new or existing
melting operation may use some other type of control device to meet the
PM emission standards. If a large copper or other nonferrous foundry
uses a control device other than a fabric filter for a new or existing
melting operation to comply with the PM emission standards, the owner
or operator must submit a request to use an alternative monitoring
procedure as required by the General Provisions in section 63.8(f)(4).

F. What Are the Notification, Recordkeeping, and Reporting
Requirements?

    The owner or operator of an existing or new affected source is
required to comply with certain notification, recordkeeping and
reporting requirements of the General Provisions (40 CFR part 63,
subpart A), which are identified in Table 1 of the final rule. Each
owner or operator of an affected source is required to submit an
Initial Notification according to the requirements section 63.9(a)
through (d) and a Notification of Compliance Status according to the
requirements in section 63.9(h) of the NESHAP General Provisions (40
CFR part 63, subpart A). In addition to the information required in
63.9(h), the owner or operator must indicate how it plans to comply
with the requirements.
    Each owner or operator of an existing or new affected source is
required to keep records to document compliance with the required
management practices. If the melting operations use a cover or
enclosure, the owner or operator must identify which melting furnaces
are equipped with a cover or enclosure, and record the results of the
monthly inspection in order to demonstrate compliance with the
procedures in the management practices plan for covers or enclosures.
These records may be in the form of a checklist.
    The owner or operator of a new or existing affected source must
also keep records of the metal scrap purchased to demonstrate
compliance with the requirement that only metal scrap that has been
depleted of HAP metals prior to charging can be used in the melting
furnace(s).
    Owners or operators of existing affected sources at large copper or
other nonferrous foundries equipped with a fabric filter that choose to
comply with the PM standard through visual emission observations must
maintain records of all VE monitoring data including:
     Date, place, and time of the monitoring event;
     Person conducting the monitoring;
     Technique or method used;
     Operating conditions during the activity;
     Results, including the date, time, and duration of the
period from the time the monitoring indicated a problem to the time
that monitoring indicated proper operation.
     Maintenance or other corrective action.
    Recordkeeping requirements also apply to facilities that use bag
leak detection systems, including records of the bag leak detection
system output, bag leak detection system adjustments, the date and time
of all bag leak detection system alarms, and for each valid alarm, the
time corrective action was taken, the corrective action taken, and the
date on which corrective action was completed.
    Existing affected sources at small copper and other nonferrous
foundries (excluding aluminum) must keep records to demonstrate that
the annual copper and other nonferrous metal melt production is less
than 6,000 tpy for each calendar year.
    Similarly, new affected sources at small copper and other
nonferrous foundries (excluding aluminum) must keep records to
demonstrate that the annual copper and other nonferrous metal melt
capacity is less than 6,000 tpy for each calendar year.
    If a deviation from the rule requirements occurs, an affected
source is required to submit a compliance report for that reporting
period. The final rule, section 63.11553(e), specifies the information
requirements for such compliance reports.

G. What Are the Title V Permit Requirements?

    This final rule exempts the aluminum foundries, copper foundries,
and other nonferrous foundries area source categories from title V
permitting requirements unless the affected source is otherwise
required by law to obtain a title V permit. For example, sources that
have title V permits because they are major sources under the criteria
pollutant program (i.e., for PM, ozone, carbon monoxide, nitrogen
oxides, sulfur dioxide and lead) would maintain those permits.

VI. Summary of Comments and Responses

    We received public comments on the proposed rule from a total of 24
commenters. These commenters included eight companies, seven trade
associations, five representatives of State agencies, three private
citizens, and one environmental organization. Sections VI.A through
VI.I of this preamble summarize the comments and provide our responses.

A. GACT Issues

1. Selection of GACT
    Comment: One commenter stated that EPA's decision to issue GACT
standards pursuant to CAA section 112(d)(5), instead of MACT standards
pursuant to section 112(d)(2) and (3), is arbitrary and capricious
because EPA provided no rationale for its decision to issue GACT
standards. The commenter also claimed that the proposed standards are
based solely on cost and are thus unlawful and arbitrary.
    The commenter claims that CAA section 112(d)(5) does not direct EPA
to set standards based on what is cost effective; rather, according to
the

commenter EPA must establish GACT based on the ``methods, practices and
techniques which are commercially available and appropriate for
application by the sources in the category considering economic
impacts.'' The commenter stated that because cost effectiveness is not
relevant under CAA section 112(d)(5), the reliance on cost
effectiveness as the sole determining factor in establishing GACT
renders the proposed standards unlawful.
    Response: As the commenter recognizes, in section 112(d)(5),
Congress gave EPA explicit authority to issue alternative emission
standards for area sources. Specifically, section 112(d)(5), which is
titled ``Alternative standard for area sources,'' provides:

    With respect only to categories and subcategories of area
sources listed pursuant to subsection (c) of this section, the
Administrator may, in lieu of the authorities provided in paragraph
(2) and subsection (f) of this section, elect to promulgate
standards or requirements applicable to sources in such categories
or subcategories which provide for the use of generally available
control technologies or management practices by such sources to
reduce emissions of hazardous air pollutants. See CAA section
112(d)(5) (emphasis added).

    There are two critical aspects to section 112(d)(5). First, section
112(d)(5) applies only to those categories and subcategories of area
sources listed pursuant to section 112(c). The commenter does not
dispute that EPA listed the aluminum, copper, and other nonferrous
foundries area source categories pursuant to section 112(c). Second,
section 112(d)(5) provides that for area sources listed pursuant to
section 112(c)(3), EPA ``may, in lieu of'' the authorities provided in
section 112(d)(2) and 112(f), elect to promulgate standards pursuant to
section 112(d)(5). Section 112(d)(2) provides that emission standards
established under that provision ``require the maximum degree of
reduction in emissions'' of HAP (also known as MACT). Section
112(d)(3), in turn, defines what constitutes the ``maximum degree of
reduction in emissions'' for new and existing sources. See section
112(d)(3).\2\ Webster's dictionary defines the phrase ``in lieu of'' to
mean ``in the place of'' or ``instead of.'' See Webster's II New
Riverside University (1994). Thus, section 112(d)(5) authorizes EPA to
promulgate standards under section 112(d)(5) that provide for the use
of GACT, instead of issuing MACT standards pursuant to section
112(d)(2) and (d)(3). The statute does not set any condition precedent
for issuing standards under section 112(d)(5) other than that the area
source category or subcategory at issue must be one that EPA listed
pursuant to section 112(c)(3), which is the case here.\3\
---------------------------------------------------------------------------

    \2\ Specifically, section 112(d)(3) sets the minimum degree of
emission reduction that MACT standards must achieve, which is known
as the MACT floor. For new sources, the degree of emission reduction
shall not be less stringent than the emission control that is
achieved in practice by the best-controlled similar source, and for
existing sources, the degree of emission reduction shall not be less
stringent than the average emission limitation achieved by the best
performing 12 percent of the existing sources for which the
Administrator has emissions information. Section 112(d)(2) directs
EPA to consider whether more stringent--so called ``beyond-the-
floor''--limits are technologically achievable considering, among
other things, the cost of achieving the emission reduction.
    \3\ Section 112(d)(5) also references section 112(f). See CAA
section 112(f)(5) (titled ``Area Sources''), which provides that EPA
is not required to conduct a review or promulgate standards under
section 112(f) for any area source category or subcategory listed
pursuant to section 112(c)(3) and for which an emission standard is
issued pursuant to section 112(d)(5).
---------------------------------------------------------------------------

    The commenter argues that EPA must provide a rationale for issuing
GACT standards under section 112(d)(5), instead of MACT standards. The
commenter is incorrect. Had Congress intended that EPA first conduct a
MACT analysis for each area source category, Congress would have stated
so expressly in section 112(d)(5). Congress did not require EPA to
conduct any MACT analysis, floor analysis or beyond-the-floor analysis
before the Agency could issue a section 112(d)(5) standard. Rather,
Congress authorized EPA to issue GACT standards for area source
categories listed under section 112(c)(3), and that is precisely what
EPA has done in this rulemaking.
    Although EPA need not justify its exercise of discretion in
choosing to issue a GACT standard for an area source listed pursuant to
section 112(c)(3), EPA still must have a reasoned basis for the GACT
determination for the particular area source category. The legislative
history supporting section 112(d)(5) provides that GACT is to
encompass:

* * * methods, practices and techniques which are commercially
available and appropriate for application by the sources in the
category considering economic impacts and the technical capabilities
of the firms to operate and maintain the emissions control systems.

See Senate Report on the 1990 Amendments to the Act (S. Rep. No. 101-
228, 101st Cong. 1st session. 171-172). The discussion in the Senate
report clearly provides that EPA may consider costs in determining what
constitutes GACT for the area source category.
    Congress plainly recognized that area sources differ from major
sources, which is why Congress allowed EPA to consider costs in setting
GACT standards for area sources under section 112(d)(5), but did not
allow that consideration in setting MACT floors for major sources
pursuant to section 112(d)(3). This important dichotomy between section
112(d)(3) and section 112(d)(5) provides further evidence that Congress
sought to do precisely what the title of section 112(d)(5) states--
provide EPA the authority to issue ``[a]lternative standards for area
sources.''
    Notwithstanding the commenter's claim, EPA properly issued
standards for the area source categories at issue here under section
112(d)(5) and in doing so provided a reasoned basis for its selection
of GACT for these area source categories. As explained in the proposed
rule and below, EPA evaluated the control technologies and management
practices that reduce HAP emissions at aluminum, copper and other
nonferrous foundries, including those at both major and area sources.
See 74 FR 6512. In its evaluation, EPA used information from an EPA
survey of the three source categories, discussed options for control
with industry trade associations, and reviewed operating permits to
identify the emission controls and management practices that are
currently used to control PM and metal HAP emissions. We also
considered technologies and practices at major and area sources in
similar categories. For example, we reviewed the management practices
required by the area source standards for iron and steel foundries (40
CFR part 63, subpart ZZZZZ).
    In our evaluation, we identified certain management practices and
PM control techniques that have been implemented at a significant
number of foundries. Of the management practices identified, two in
particular were used frequently: (1) Cover or enclose melting furnaces
that are equipped with covers or enclosures during the melting process,
and (2) purchase only scrap that has been depleted (to the extent
practicable) of HAP metals in the materials charged to the melting
furnace. Of the PM control technologies identified, we found that large
copper and other nonferrous foundries (i.e., foundries melting 6,000
tpy or more of copper and other nonferrous metal) frequently used
control technologies to reduce PM/HAP emissions, while smaller (less
than 6,000 tpy) did not. Furthermore, we found that large copper and
other nonferrous foundries used fabric filters as the primary technique
to reduce PM/HAP metal emissions. The

wide use of the management techniques and PM controls indicates that
such practices are generally available for the area source categories
at issue.
    The commenter further argues that EPA inappropriately chose the
management practices and controls described above as GACT based solely
on costs, and according to the commenter, cost is not relevant to GACT
determinations and as such the standards are unlawful. We disagree.
First, contrary to the commenter's assertions, EPA did not select GACT
on cost alone, as the discussion above supports. Second, and also
contrary to the commenter's assertions, the Agency's consideration of
cost effectiveness in establishing GACT and the Agency's views on what
is a cost-effective requirement under section 112(d)(5) are relevant.
The U.S. Court of Appeals for the DC Circuit has stated that cost
effectiveness is a reasonable measure of cost as long as the statute
does not mandate a specific method of determining cost. See Husqvarna
AB v. EPA, 254 F.3d 195, 201 (D.C. Cir. 2001) (finding EPA's decision
to consider costs on a per ton of emissions removed basis reasonable
because CAA section 213 did not mandate a specific method of cost
analysis).
    In addition to evaluating what was generally available to the
foundries at issue, we considered costs and economic impacts in
determining GACT. We estimated the cost of compliance for the proposed
rule to include a one-time first year cost of $656,000, a recurring
total annualized cost of $645,000 per year, and an average of $2,000
per year per plant. (74 FR 6522). To the best of our knowledge and
based on the information we have available, the management practices
are not costly to implement and would not result in any significant
adverse economic impact on any foundry. Our economic impact analysis
estimated that the proposed rule would have an impact of less than 0.05
percent of sales (74 FR 6523). We believe the consideration of costs
and economic impacts is especially important for determining GACT for
the aluminum, copper, and other nonferrous foundries because, given
their relatively low level of HAP emissions, requiring additional
controls would result in only marginal reductions in emissions at very
high costs for modest incremental improvement in control.
    Finally, even though not required, EPA did provide a rationale for
why it set a GACT standard in the proposed rule. In the proposal, we
explained that the facilities in the source categories at issue here
are already well controlled for the urban HAP for which the source
category was listed pursuant to section 112(c)(3). See 74 FR 6517 and
6522. Consideration of costs and economic impacts proves especially
important for the well-controlled area sources at issue in this final
action. Given the current, well-controlled emission levels, a MACT
floor determination, where costs cannot be considered, could result in
only marginal reductions in emissions at very high costs for modest
incremental improvement in control for the area source category.
2. Cost Effectiveness of the GACT Standards
    Comment: One commenter claimed that EPA did not undertake
sufficient analysis to support the conclusion that ``given their
relatively low levels of HAP emissions, requiring additional controls
would result in only marginal reductions in emissions at very high
costs for modest incremental improvement in control.'' (See 74 FR
6517.) As an example, the commenter said that for copper and other
nonferrous foundries that melt 6,000 tpy or more, EPA determined that
the majority of facilities currently operate using a control system for
PM, and that those controls achieve a reduction in PM emissions of 95
percent. According to the commenter, EPA did not consider setting a
tighter standard despite the fact that of the eight facilities that
reported the efficiency of their add-on controls, four achieved an
efficiency of 98 percent or higher. The commenter stated that when EPA
analyzed and rejected stronger control options, the analysis was based
solely on the cost-effectiveness of those controls. The commenter also
asserted that EPA should not have rejected the option of requiring all
copper and other nonferrous foundries to utilize add-on controls
because, in the commenter's view, such controls are ``generally
available'' and ``effective for controlling emissions of PM and metal
HAP from copper and nonferrous foundries.''
    The commenter noted that EPA determined that it would be overly
costly to require facilities to install new PM control devices for the
under 6,000 tpy subcategory because the cost effectiveness was $50,000
per ton of PM and $1 million per ton of metal HAP. According to the
commenter, EPA neither claims that the economic impacts are too great
based on the profitability of these plants, nor determines how
economically significant it would be for such a plant to make the
necessary investment in these controls.
    Response: EPA properly issued standards for the area source
categories at issue here under section 112(d)(5), and cost
effectiveness was not the only consideration in setting the standards.
    In establishing GACT standards for all three types of foundries,
EPA determined that all affected sources subject to this rule must meet
two management practices applicable to the melting operations to reduce
the HAP emissions. First, covers or enclosures are used during the
melting operation on furnaces that have them to suppress emissions.
Second, the purchased scrap is depleted to the extent practicable of
HAP metals that are contaminants and are not necessary to meet product
specifications. EPA found that most of the sources in the survey
employed one or both of these methods to control HAP emissions from the
melting process. Affected sources must use these two practices to
comply with this area source standard. The general use of these methods
and their acceptable costs and economic impacts led EPA to choose these
as part of the GACT standards applicable to aluminum, copper and other
nonferrous foundries.
    For existing large copper and other nonferrous foundries, EPA
determined these affected sources have generally available to them PM
control techniques that result in a PM control efficiency of 95
percent. The survey conducted prior to the proposal indicated that the
large copper and other nonferrous foundries used operating practices
and add-on control devices to control PM emissions. EPA requested test
data as part of the industry survey, but none was provided. Sources did
report control efficiencies, but in some cases, the control levels for
the baghouses and cartridge filters were engineering estimates or
equipment manufacturer specifications.
    In choosing the management practices for foundries in all three
source categories and additional PM controls on large copper and other
nonferrous foundries, EPA looked to the discussion on GACT as found in
the Senate report on the legislation (Senate report No. 101-228, Dec.
20, 1989), which describes GACT as:

* * * methods, practices and techniques which are commercially
available and appropriate for application by the sources in the
category considering economic impacts and the technical capabilities
of the firms to operate and maintain the emission controls systems.

    The information we collected supports a 95 percent control level
for PM (as a surrogate for metal HAP) as GACT for these two categories
of existing area sources. While the data collected during the survey
shows that

some sources reported a 98 percent PM emission control efficiency, the
data also showed that the control equipment commercially available and
appropriate for application to these sources (e.g., baghouses) does not
result in control efficiencies of 98 percent on a continuing basis. See
Mossville Environmental Action Now v. EPA, 370 F.3d 1232, 1242 (D.C.
Cir. 2004) (EPA may appropriately account for operational variability
in setting section 112(d) emission standards).
    EPA also determined that the cost associated with replacing
existing control equipment that achieves 95 percent control with newer
equipment to achieve 98 percent control would result in a cost and cost
effectiveness not justified by the incremental reduction in emissions.
For example, consider a copper foundry melting 6,000 tpy of copper in
electric induction furnaces with a fabric filter as the control device
operating at 95 percent control efficiency. Uncontrolled emissions of
PM (at 1.5 lb/ton) and HAP (at 5 percent of PM) of 4.5 tpy and 0.23
tpy, respectively, would be reduced to 0.225 and 0.0113 tpy,
respectively, assuming the 95 percent control efficiency of the
existing fabric filter. Either a new baghouse in series or an expanded
baghouse, both with newer fabric for the filter (e.g., membrane bags)
and a lower air-to-cloth ratio, would be required to increase the
control efficiency from 95 percent to 98 percent. At the new 98 percent
control level, emissions of PM and HAP would be reduced to 0.09 tpy and
0.0045 tpy, respectively. The capital cost of the new or expanded
baghouse would be $520,000 with a total annualized cost of $119,000 per
year (sized for a flow of 16,500 actual cubic feet per minute). The
incremental cost effectiveness for the upgrade would be $880,000/ton
for PM and $18,000,000/ton for HAP, which is a very high cost
effectiveness to achieve an additional HAP emission reduction of only
0.0067 tpy (0.0113 tpy at 95 percent control versus 0.0045 tpy at 98
percent control). As the commenter noted and quoted, we also presented
at proposal the very high cost effectiveness of requiring small copper
and other nonferrous foundries (i.e., all of the copper and nonferrous
foundries subject to the rule) to install PM controls. We do not
believe the cost numbers presented here and in the proposal are
reasonable for requiring PM controls for melting furnaces at all copper
and other nonferrous foundries.
    Contrary to the commenter's assertions, the Agency's consideration
of cost effectiveness in establishing GACT and the Agency's views on
what is a cost-effective requirement under section 112(d)(5) are
relevant. The U.S. Court of Appeals for the DC Circuit has stated that
cost effectiveness is a reasonable measure of cost as long as the
statute does not mandate a specific method of determining cost. See
Husqvarna AB v. EPA, 349 U.S. App. D.C. 118, 254 F.3d 195, 201 (D.C.
Cir. 2001) (Finding EPA's decision to consider costs on a per ton of
emissions removed basis reasonable because CAA section 213 did not
mandate a specific method of cost analysis). Section 112(d)(5) does not
mandate a specific method for considering cost when setting GACT
standards.
    The commenter has provided no information to support its assertion
that add-on control requirements for small copper and other nonferrous
foundries are generally available for melting operations in the two
source categories. The commenter also failed to provide any information
indicating that our cost- effectiveness determinations were
unreasonable and likewise failed to provide any information concerning
the economic impacts associated with requiring the standards that the
commenter suggests represent GACT. The GACT standards for the three
foundry area source categories are consistent with the requirements of
section 112(d)(5).
    Comment: One commenter questioned the authority for the
promulgation of the GACT standards. The commenter stated it is
inconsistent with the CAA section 112(d)(1) schedules to promulgate
this new area source standard after the expiration of the schedules.
According to the commenter, it would be more appropriate to promulgate
GACT standards under CAA section 112(f)(2)(C) to comply with the court
order. The commenter stated he did not think the court intends to order
EPA to violate the time frame specified by the CAA.
    Response: The commenter is incorrect. In Sierra Club v. Johnson,
(D.D.C. 2006), the Court held, among other things, that EPA violated a
mandatory duty by failing to establish emission standards for area
source categories listed pursuant to section 112(c)(3) and (k)(3)(B) by
the date specified in the statute. The Court issued an order in March
2006, requiring the Agency to promulgate emission standards for the
area source categories listed pursuant to section 112(c)(3) and
(k)(3)(B). In August 2006, the Court issued an opinion establishing
deadlines for issuing the standards. By issuing emission standards for
the three area source categories at issue in this rule, the Agency is
acting wholly consistently with the schedule set forth in the Court's
August 2006 opinion, as amended. The commenter's thoughts about what
the Court ``intend[ed] to order'' are wholly irrelevant. The order
speaks for itself, and the Agency continues to comply with the terms of
the order.
    Moreover, because the requirements of the Court's order are
unambiguous, the commenter's thoughts about the ``appropriate[ness]''
of promulgating GACT standards under CAA section 112(f)(2)(C) are
similarly irrelevant. Furthermore, the commenter fails to recognize
that section 112(f) of the CAA addresses the second stage of standard
setting under section 112, and this phase occurs 8 years after the
initial promulgation of a technology-based standard under section
112(d). This rule marks the promulgation of a technology-based standard
under section 112(d). If EPA sought to conduct a residual risk analysis
for these categories, it would do so 8 years after issuance of the
section 112(d) standard. The commenter also fails to recognize that
residual risk review is not required for area sources where the
standards are based on GACT, as is the case in this rule. See CAA
112(f)(5).
2. Estimates of Impacts of the Proposed Rule
    Comment: One commenter stated that EPA did not estimate the
emissions reductions or cost effectiveness associated with the
management practices that represent GACT. The commenter noted that EPA
estimated the costs associated with the rule, but not the emissions
reductions, and consequently, did not show that GACT was cost
effective. The commenter asked that EPA identify the amount of HAP
reductions associated with the rule, and reconsider the cost
effectiveness and potential impacts on area sources (almost all of
which are small businesses) if the environmental benefits are minimal.
    One commenter stated it was the intent of the CAA that the area
source program results in reductions in emissions from area sources of
hazardous air pollution and expressed disappointment that EPA's
proposal states ``we estimate that the only impacts associated with the
proposed rule are the compliance requirements (i.e., monitoring,
reporting, recordkeeping and testing).'' The commenter was concerned
that such proposals are merely paperwork exercises and are not
responsive to Congress' intent to reduce hazardous air pollution when
it included the area source provisions in the CAA. The

commenter recommended that in this rule and in future area source
proposals, EPA incorporate provisions that will provide additional
public health protection from the adverse effects of emissions of HAP
from area sources.
    One commenter stated that, as described in the CAA section
112(k)(1), the purpose of the area source program is to ``achieve a
substantial reduction in emissions of hazardous air pollutants from
area sources and an equivalent reduction in the public health risks
associated with such sources * * *'' According to the commenter, the
approach laid out by EPA in the proposed rule does not reflect this
purpose and instead focuses entirely on cost estimates. The commenter
stated that the preamble did not contain any discussion or estimate of
the current emissions of HAP from the sources to be regulated or the
public health risks associated with those sources, and that there was
no discussion of the expected benefits of the proposed rule.
    Response: We disagree with the commenter's assertions that EPA did
not show that GACT for these sources was cost effective. We examined
all available HAP emission reduction approaches and determined GACT,
considering costs, economic impacts, and the cost effectiveness of PM
control devices (74 FR 6518 and 6523). Few additional quantifiable
emission reductions at existing affected sources are expected to result
from the requirements of this rule because most of the existing
affected sources are already implementing the process improvements,
management practices, and control devices required by this rule. The
requirements in the final rule, however, will prevent any existing
facilities from making changes that could result in less stringent
requirements and an increase in HAP emissions. Codifying these
requirements will result in fewer emissions from new affected sources
at large copper and other nonferrous foundries due to the more
stringent PM/metal HAP emission standards and continuous monitoring by
bag leak detectors. In addition, we expect that the increased attention
to the implementation of management practices, recordkeeping, and the
monitoring of control devices required by the rule will result in
additional emission reductions because the management practices will be
applied more consistently and uniformly, and control device monitoring
will result in shorter times that fabric filter bags are allowed to
leak. The management practices will also focus more attention on the
raw materials (metals) being melted and will promote pollution
prevention for reducing HAP emissions.
    Although we are, in large part, codifying the status quo, the
emission reductions we are obtaining, as compared to 1990 levels, are
significant because these facilities have implemented controls over the
past 20 years. For example, HAP emissions reported to the 1990 Toxics
Release Inventory (TRI) by 86 foundries in these three source
categories totaled 18.2 tpy compared to 13.6 tpy in 2005 with 132
plants reporting (i.e., there has been a large decrease in emissions
even though over 50 percent more plants were reporting to the TRI).
These reductions are consistent with the goals of the Urban Air Toxics
Strategy, which uses 1990 as the baseline year and measures reductions
against that baseline.
    Finally, one commenter requests that EPA incorporate provisions
that will provide additional public health protection from HAP
emissions. In this rule, we set technology-based standards pursuant to
section 112(d)(5) for three area source categories. The emission
control requirements in the final rule reflect GACT. Although assessing
public health risks is not a part of the GACT determination, we believe
that the rule requirements will provide important public health
protection, as discussed above.
3. GACT Determination for PM
    Comment: One commenter stated that it was unclear from the
administrative record how EPA set the standards for control
efficiencies and emission limits for copper and other nonferrous
foundries. Based on the limited data available to EPA, the commenter
claims that it is difficult to establish standards that foundries can
reliably and consistently meet. The commenter requested that EPA
provide its detailed analysis on how the control efficiencies and
emission limits were established to allow the commenter to determine if
the standards appropriately represent GACT.
    Response: EPA developed the control efficiencies for copper and
other nonferrous foundries based on available operating permit
information and industry survey responses. The summary of survey
responses from copper and other nonferrous foundries is included in the
supporting docket materials for the proposed rule (Docket ID No. EPA-
HQ-OAR-2008-0236, items 0012, 0021, and 0022).
    EPA developed the alternate emission limit from control equipment
(baghouse) specifications and performance test data from other NESHAP
background/compliance demonstration information involving similar
industries (e.g., foundries), similar emission sources (e.g., melting
furnaces), and similar control devices (e.g., baghouses).
    Industry stakeholders stated that a 95 percent standard will be a
significant (and costly) issue for some facilities to demonstrate
compliance because it is difficult or impossible in some cases to
sample the inlet according to the test method criteria because of the
configuration of the duct work. Sampling the outlet is easier because
it is a straight duct or stack. We investigated alternate forms of an
emission limit used in similar source categories and found that
baghouses in secondary nonferrous metals processing facilities were
subject to an emission limit of 0.015 gr/dscf for the outlet.
    For existing affected sources, the 0.015 gr/dscf limit provides at
least the same level of HAP emission reduction as GACT, which requires
a 95 percent reduction, based on secondary nonferrous metals processing
project data (subpart TTTTTT), as well as information and test data
from other similar industries that show well-designed and operated
baghouses can achieve the limit. We proposed this limit as an
alternative to GACT to provide flexibility and to provide a more
straightforward way of demonstrating compliance.
    A similar decision was made for the new affected source emission
limit, i.e., 99 percent control efficiency. The alternative limit
proposed was 0.010 gr/dscf, which was also based on data from the
secondary nonferrous metals processing NESHAP (subpart TTTTTT). We
proposed an alternative limit for affected sources at large copper and
other nonferrous foundries that provides at least the same level of HAP
emission reduction as the 99.0 percent GACT requirement.
    Comment: One commenter requested that EPA consider providing
another alternative emissions limit in the proposed regulation,
particularly because the proposed regulation allows control devices
other than fabric filters. Specifically, the commenter said that an
emissions limit expressed in ``pounds of PM per tons of metal (i.e.,
copper and other nonferrous metal) melted'' could be helpful to many
copper and other nonferrous foundries in demonstrating compliance with
the applicable emissions limit, especially with a control device other
than a fabric filter. The commenter noted that the emission limits in
other foundry rules are often expressed in these units, and this
alternative limit could allow foundries a more consistent and flexible
approach to collecting data and demonstrating compliance.

    Response: We agree that alternative emission standards provide
additional flexibility; EPA proposed one alternate emission standard
based on outlet concentrations alone to provide additional flexibility.
We do not, however, have adequate data or a reasonable basis that would
allow us to finalize a production-based limit (e.g., ``pound per
ton''). In addition, the commenter did not provide any data for EPA to
assess whether a ``pound per ton'' format is appropriate or to
determine the appropriate and equivalent value in that format.

B. The Source Category Designation

    1. The source categories at issue in this rule are defined as only
those aluminum, copper or other nonferrous foundries that melt 600 tpy
or more of aluminum, copper and other nonferrous metals.
    Comment: Six commenters asked that EPA revise the proposed rule to
base the 600 tpy clarification of the source category only on the
amount of aluminum, copper, and other nonferrous metals melted without
including the quantity of ferrous metals melted. The commenters noted
that this is a particular concern for foundries that are predominantly
iron and steel foundries already subject to an area source standard for
that source category (40 CFR Part 63, subpart ZZZZZ). The commenters
stated that iron and steel foundries may melt a small amount of
aluminum, copper, or other nonferrous metals, but the large majority of
their production is ferrous castings. One commenter cited an example of
a small ferrous foundry in Texas that is subject to subpart ZZZZZ that
melted 900 tons of metal in 2008, which included 22 tons of aluminum
and copper. According to the commenter, if the 600 tpy threshold
includes the ferrous metal melted, this facility would be included in
the source category subject to the standards. The commenter claimed
that this undue burden would likely force the foundry to abandon its
small nonferrous operations.
    One commenter stated that foundries that melt primarily ferrous
metals should not be included in the source category, and therefore
subject to the rule, because they are not included in the Standard
Industrial Classification (SIC) and NAICS codes used by EPA to
determine the population of affected sources (i.e., ferrous foundries
are included in separate SIC and NAICS codes specific to iron and steel
foundries). One commenter requested clarification of the rule's scope
and was concerned that if the rule is promulgated as proposed, EPA may
inadvertently regulate sources that are outside the rule's intended
scope (i.e., area source iron and steel foundries). Consequently, the
commenter asked that the rule be revised to clarify that it is
inapplicable to foundries melting predominately ferrous metals.
    Another commenter requested that the 600 tpy threshold be
determined separately for aluminum, copper, and other nonferrous metals
rather than from the combined total of all three and requested that the
rule clarify that the threshold is based on actual production and not
on melting potential or capacity.
    Response: EPA based the 600 tpy threshold on the facilities in the
1990 TRI that reported under the SIC codes for aluminum, copper, and
other nonferrous foundries. Foundries melting predominantly iron and
steel would have reported to TRI under different SIC codes and were not
included in our 1990 TRI database for the three area source categories
addressed in this rule. Consequently, when determining whether an area
source meets the 600 tpy threshold, the source should not include the
tpy of ferrous metal melted, but rather only include the nonferrous
metal melted (aluminum, copper, and other nonferrous metals) in
determining its annual production.
    In our analysis of the 1990 TRI emissions data, we could not
distinguish the quantities of aluminum, copper, and other nonferrous
metals melted at each facility. We confirmed that some of the foundry
facilities in the 1990 inventory melted a combination of these metals.
Consequently, the 600 tpy threshold must be based on the sum of
aluminum, copper, and other nonferrous metals melted at each existing
affected source, and not based on each type of metal melted separately
as the commenter suggests (i.e., there is not a 600 tpy threshold for
each type of nonferrous metal at a single facility).
    We have clarified that for an existing source, the 600 tpy
threshold is based on the annual metal melt production in calendar year
2010 and not capacity. However, for a new affected source we use the
annual metal melt capacity at startup because a new affected source
must comply at startup (if startup occurs after the date of publication
of the final rule in the Federal Register), and at startup it would not
have any history of annual production.
    Comment: One commenter suggested that the 600 tpy threshold be
based solely on the quantity of metals containing foundry HAP and not
on the total amount of metal melted. The commenter cited as an example
that a facility melting 599 tpy of metal containing no foundry HAP and
1 tpy of metal containing foundry HAP would be subject to the rule. On
the other hand, the commenter stated that a foundry melting 599 tons of
metal containing foundry HAP would not be subject to the rule. The
commenter suggested that EPA reconsider the basis of the 600 tpy.
    Another commenter asked for clarification of how the 600 tpy
threshold should be calculated. Does the 600 tpy of metal (such as
aluminum) include any aluminum the facility melts regardless of the
amount of metal HAP (by weight) in the charge material?
    Response: As discussed in the proposal, and clarified again in the
earlier response to comment, the 600 tpy of metal melted threshold is
not an applicability threshold. Rather, EPA realized that emissions
from foundries that melt less than 600 tpy were not included in the
1990 TRI baseline, which is the basis of EPA's listing of the aluminum,
copper and other nonferrous foundries area source categories. In
addition, the 600 tpy threshold was based on the amount of aluminum,
copper and other nonferrous foundry metal melted regardless of the
amount of aluminum foundry HAP, copper foundry HAP or other nonferrous
foundry HAP contained in the metal. Defining the threshold in this way
was necessary because the level of detail regarding the individual HAP
content was not available for the facilities in the 1990 emission
inventory. Therefore, as the commenter pointed out, the affected source
at an aluminum foundry that melts 599 tpy of aluminum that contains no
aluminum foundry HAP and 1 tpy of aluminum that contains an aluminum
foundry HAP is subject to this rule.
    Comment: Commenters noted that the rule did not specify the
baseline year(s) for determining the production level to compare with
the 600 tpy threshold and also recommended that EPA address annual
production fluctuations. For example, commenters asked when a facility
would become subject to the rule and when must the facility demonstrate
compliance if it initially melted below 600 tpy, but later in time
melts over 600 tpy of aluminum, copper and other nonferrous metal. One
commenter suggested that the applicability threshold be based on
production in 2010 or 2011 to be consistent with the compliance date.
Another related question posed by the commenter involved the
applicability of the rule if a foundry initially melted over 600 tpy,
but in subsequent years melted less than 600 tpy due to economic
factors or other reasons.
    Response: Pursuant to a court order, this final rule will be signed
by the

Administrator by June 15, 2009. We expect that the rule will be
published in the Federal Register in late June 2009, in which case the
compliance date for existing sources would be June 2011 (2 years after
the date of promulgation of the final standards). In light of this
compliance date, we revised the rule to require that an existing
foundry use the annual metal melt production for calendar year 2010 to
determine whether it is in the source category. To provide further
clarification, we added a definition for ``annual metal melt
production.'' If the owner or operator of an existing foundry increases
its annual metal melt production after 2010 such that it equals or
exceeds 600 tpy in a subsequent year, the owner or operator must notify
its permitting authority within 30 days after the end of that calendar
year (e.g., December 2011) and comply with the rule requirements within
2 years following the end of the calendar year.
    If the foundry's annual metal melt production (the total aluminum,
copper and other nonferrous foundry metal) exceeds 600 tpy in a
subsequent year, it is not automatically subject to the GACT
requirements of the rule. For example, if an aluminum foundry increases
its annual metal melt production from 525 tpy to 725 tpy in 2011, it
must also melt materials containing aluminum foundry HAP, as defined in
section 63.11556, in order to be subject to the rule's GACT
requirements. If the aluminum foundry does not melt materials that
contain beryllium, cadmium, lead or nickel in amounts greater than or
equal to 0.1 percent by weight (as metal), or contains manganese in
amounts greater than or equal to 1.0 percent by weight (as metal), then
the aluminum foundry is not subject to the GACT requirements.
    If an existing foundry subsequently decreases production such that
it has an annual metal melt production of less than 600 tpy, the
foundry remains subject to the rule. We incorporated this requirement
into the final rule for several reasons. First, we have listed the
three foundry area source categories under CAA section 112(c)(3), and
we based the listing and definition of the categories on those
facilities that melted at least 600 tpy of aluminum, copper, other
nonferrous metals, and all associated alloys in 1990, regardless if
they subsequently decreased production. Second, existing foundries
subject to the rule at promulgation (i.e., with 600 tpy or greater
metal melt production) will have prepared a management practices plan
and implemented the management practices. If their annual metal melt
production falls below 600 tpy for any year subsequent to 2010, EPA
believes it is reasonable to expect that they keep their management
practices plan and continue to implement the management practices to
reduce emissions. Third, because EPA learned that the management
practices are routine procedures already implemented at most foundries,
EPA believes that there would be no significant burden for the rule to
continue to apply if annual metal melt production falls below 600 tpy
in a calendar year. Finally, if foundries (specifically, existing
affected sources) on the borderline of 600 tpy of annual metal melt
production (or capacity for new affected sources) fall above and below
that level over different years, the time-consuming complexity of
possibly other State or local permit revisions is a burden on both the
permitting authority and the foundry.
    We made clarifications for new affected sources that parallel those
for existing affected sources except that annual metal melt capacity is
used instead of production because new affected sources must comply at
startup (provided startup occurs after the date of publication of this
rule in the Federal Register), and there would be no production history
at startup.

C. Subcategorization and Applicability Issues

1. Threshold of 6,000 tpy for Copper and Other Nonferrous Foundries
    Comment: Several commenters asked that EPA clarify that the 6,000
tpy threshold should be determined only from the amount of copper and
other nonferrous metals melted and would not include the quantity of
aluminum or ferrous metals melted at the facility. One commenter
requested that the 6,000 tpy threshold be determined only from the
copper and other nonferrous metals that contain the foundry HAP (as
defined in the rule) rather than the total amount of copper and other
nonferrous metal melted. One commenter provided an example of a foundry
that melts 5,000 tpy of iron and 2,000 tpy of copper. Under the
proposed rule, the commenter notes that the furnace would have to be
equipped with emission controls. The commenter claims this would not be
consistent with EPA's analysis of cost and cost effectiveness in
deriving the 6,000 tpy threshold because it was based on retrofitting
baghouses to furnaces melting only copper and other nonferrous metals.
    Response: The survey results used to develop the threshold included
facilities that were melting copper and other nonferrous metals and
indicated that facilities melting 6,000 tpy or more of copper and other
nonferrous metals had PM emission controls. Although we requested data
prior to proposal on the amount of copper and other nonferrous metal
containing the specific foundry HAP subject to this rule, we did not
receive information to determine a HAP-based threshold. In addition,
the analysis of whether to apply PM controls to facilities melting less
than 6,000 tpy was based on the costs and cost effectiveness of
applying PM emission controls to foundries melting copper and other
nonferrous metals, resulting in the conclusion that it was not cost
effective to apply emission controls on those melting less than 6,000
tpy of copper and other nonferrous metal. As documented in the proposal
(see 74 FR 6518), the cost effectiveness for applying a baghouse to the
melting operations at a small copper or other nonferrous foundry was
estimated to be $50,000 per ton of PM and $1 million per ton of metal
HAP. Therefore, we have clarified in the rule that the 6,000 tpy
threshold is based on the total amount of copper and other nonferrous
metal melted, excluding the amount of aluminum and ferrous metals
melted at the facility. In addition, we have added definitions for
``annual copper and other nonferrous metal melt production'' and
``annual copper and other nonferrous metal melt capacity'' to be used
to determine if an affected source is subject to the control
requirements. Therefore, if an existing or new affected source melts
6,000 tpy or more of copper and other nonferrous metal, it must comply
with the controls for PM/metal HAP.
    Comment: Four commenters asked that EPA specify in the rule how the
6,000 tpy threshold is applied under fluctuating production levels over
time. One commenter suggested that the approach used in the iron and
steel foundry area source rule be incorporated to address questions of
changing production levels and noted that those procedures addressed
both cases in which a foundry is initially below the threshold and
subsequently exceeds it and also the case where a foundry subsequently
produces at levels below the threshold.
    Response: In the final rule, EPA has incorporated definitions for
``large foundry'' and ``small foundry.'' These definitions are
consistent with the subcategorization scheme set forth in the proposed
rule, which used a 6,000 tpy metal melting production rate to define
facility size. We have defined a ``small foundry'' as an existing
copper or other nonferrous foundry with an annual copper and other
nonferrous metal melt production of less than 6,000

tpy (or a new copper or other nonferrous foundry with an annual copper
and other nonferrous metal melt capacity of less than 6,000 tpy). We
have defined a ``large foundry'' as a copper or other nonferrous
foundry with an annual copper and other nonferrous metal melt
production of 6,000 tpy or more (or a new copper or other nonferrous
foundry with an annual copper and other nonferrous metal melt capacity
of 6,000 tpy or more). The proposal did not discuss fluctuating
production levels with regard to the 6,000 tpy threshold for
determining which copper and other nonferrous foundries must comply
with the PM emission limit. EPA has reviewed the Iron and Steel Foundry
Area Source rule (40 CFR 63, subpart ZZZZZ). We have incorporated into
this final rule some of the features of the Iron and Steel Area Source
rule. For example, some of the concepts we applied from that rule
include establishing a baseline calendar year for determining annual
metal melt production, using capacity at startup for new affected
sources, requiring a notification if a small foundry becomes a large
foundry, and allowing 2 years to comply if a small foundry becomes a
large foundry. Therefore, we revised this rule to provide that if the
annual metal melt production of your existing small foundry equals or
exceeds 6,000 tons of copper and other nonferrous metal during a
calendar year subsequent to 2010, you must submit a notification of
foundry reclassification to the Administrator within 30 days and comply
with the requirements for existing large foundries within 2 years of
the date of the notification.
    However, in this rule, you must continue to comply with the
requirements for large copper and other nonferrous foundries in the
case of a production decrease below 6000 tpy after 2010. Because you
would have already installed the emission control device, EPA believes
it is reasonable to require continued operation of that device. EPA
further believes it would not be reasonable to allow you to turn the
control device off and not comply with the PM emission limit. Our
intent at proposal was that if a large copper or other nonferrous
foundry subsequently decreases annual copper and other nonferrous metal
melt production below 6,000 tpy, it should remain subject to the
requirements for large copper and other nonferrous foundries. We
revised the rule to state that if your facility is, at any time,
classified as a large foundry, you must continue to comply with the PM
control requirements even if your annual copper and other nonferrous
metal melt production falls below 6,000 tons in subsequent calendar
years.
    Comment: According to one commenter, the proposed rule language is
not clear regarding whether the PM control requirements apply to
aluminum foundries. The commenter would like EPA to clarify that
aluminum foundries are subject only to management practices and not the
add-on emission control requirements.
    Response: EPA has revised the rule language to make it clear that
only large copper and other nonferrous foundries (excluding aluminum)
are subject to the PM control requirements. The rule's definition for
large foundry includes only copper and other nonferrous foundries.
Furthermore, we have inserted new definitions for the ``annual copper
and other nonferrous metal melt production'' and ``annual copper and
other nonferrous metal melt capacity'' to further clarify that the
6,000 tpy threshold applies only to copper and other nonferrous metal
melt production. Therefore, the commenter is correct that the PM
controls required in the rule are not applicable to aluminum foundries.
3. Material Containing HAP
    Comment: One commenter stated that the language at section
63.11544(a)(1) should be clarified to set an unambiguous threshold for
materials containing aluminum, copper or nonferrous HAP below which the
rule does not apply. The commenter notes that section 63.11544(a)(1)
limits applicability of the rule to foundries using material containing
aluminum, copper or nonferrous foundry HAP, but it expands
applicability to include foundries that use materials that have the
``potential to emit'' copper foundry HAP. The commenter claims that
this language is contradictory and appears to set a de minimis
applicability threshold based on the definition of material containing
foundry HAP, then takes away the threshold with the catch-all
``potential to emit'' language. The commenter asked that the language
be revised to clarify that the rule does not apply to foundries using
feedstock that does not meet the definition of materials that contain
aluminum, copper, or nonferrous foundry HAP. Several other commenters
provided similar comments on the term ``potential to emit.''
    One commenter requested that the definition of ``material
containing aluminum foundry HAP'' be included in the ``affected
source'' definition. The commenter stated that in reviewing the
interrelationship of these proposed definitions, the proposed language
defining ``affected source'' does not clearly limit applicability based
solely on materials content. The commenter said that the linkage
between the ``affected source'' definition and the definition of
``material containing aluminum foundry HAP'' is not clearly established
and the use of the term ``or have the potential to emit'' seems to
establish an independent applicability test that could apply even if
the materials content is less than the levels set forth for ``material
containing aluminum foundry HAP.'' To clarify applicability, the
commenter recommended that the applicability in proposed section
63.11544, and its definition of affected source be revised to
specifically use the defined term ``material containing aluminum
foundry HAP,'' and either: (1) eliminate the reference to ``potential
to emit'' or (2) use the conjunctive, rather than the ``disjunctive''
preposition in the definition (i.e., both requirements would need to be
satisfied).
    Another commenter interpreted the proposal to mean that aluminum
foundry operations would not be covered under the proposed rules,
including the management practices provisions, if they do not use a
HAP-containing material for aluminum foundries as defined in the
proposed rule. The commenter interprets this to mean that the use of
aluminum foundry metal below the defined weight percentage HAP content
is not subject to the rule.
    Response: We agree that the term ``potential to emit'' used in this
context is ambiguous and unnecessary, and we have deleted it in the
final rule. Our intent was that the rule be applicable to foundries
that melt materials containing the aluminum foundry HAP, copper foundry
HAP, and other nonferrous foundry HAP. We have also revised the
applicability section in the final rule to state that the requirements
apply to the collection of foundry melting operations that melt
materials containing aluminum foundry HAP, copper foundry HAP, and
other nonferrous foundry HAP (see the definitions of these terms
provided in the rule). As an example, if an aluminum foundry melted
greater than 600 tpy of aluminum, and that aluminum contained less than
0.1 percent by weight of beryllium, cadmium, lead or nickel
(individually) and contained less than 1.0 percent by weight manganese,
then that foundry would not be subject to the rule.
4. Facilities That Are Not Foundries
    Comment: One commenter stated that his facility processes aluminum
scrap and/or dross to produce aluminum that

is used as the raw material in other operations. The commenter's
facilities produce molten aluminum, aluminum sow and/or aluminum ingot.
The commenter stated that facilities that produce sow and/or ingot by
pouring molten aluminum from furnaces, holders or meters into molds are
not and should not be subject to the proposed rule because they are not
``aluminum foundries.'' The commenter noted that the sows and ingots
produced by these facilities are not complex shapes nor are they used
in processes that require specific mechanical properties,
machinability, and/or corrosion resistance. According to the commenter,
the sows and ingots are used in processes as the raw aluminum metal
that is melted and then cast into complex shapes for use in processes
requiring the listed properties, and the company does not produce
aluminum castings.
    Response: The facility described by the commenter that melts scrap
metal and cast molten metal to produce sows, ingots, or billets is a
secondary aluminum production facility and is not an aluminum foundry
as defined by this rule. We have clarified in the final rule's
definitions that a foundry casts complex shapes rather than sow and
ingot (see, for example, definition for ``aluminum foundry'' in section
63.11556), and we have stated explicitly in the definitions for
aluminum foundry, copper foundry and other nonferrous foundry that the
definitions do not include secondary metal production.
    Comment: Another commenter stated that as currently written,
questions of applicability will arise as to how the rules apply to area
sources that may include both types of operations (aluminum foundry
casting and secondary aluminum production). According to the commenter,
most secondary aluminum production facilities conduct ``casting''
operations directly after the melting of aluminum scrap and notes that
the proposal's preamble provides some explanatory language by
describing production operations for aluminum and other nonferrous
foundry casting operations as those that ``produce complex metal shapes
by melting the metal in a furnace and pouring the molten metal into a
mold to solidify into the desired shape.'' The commenter said that this
contrasts only slightly with ``casting'' for other secondary aluminum
production facilities where the metal is formed or molded into simple
shapes, such as ingots, sows or billets for shipping or further
processing.
    The commenter said the proposal does not address the nuances of
these different casting operations and therefore does not provide the
regulated community with sufficient notice regarding the rule's
applicability and what is needed to comply with the rule, and in
addition, the rule is subject to misinterpretation by permit
authorities. To address these issues, the commenter asked that the rule
be revised to make clear which MACT rule (40 CFR part 63 CFR subpart
RRR or subpart ZZZZZZ) takes precedence for particular operations where
interpretations of applicability may conflict. The commenter said that
given the confusion witnessed frequently with permit authorities
addressing implementation and compliance for the secondary aluminum
production MACT rules, this necessity is even more pronounced. The
commenter requested that the rule be revised and that EPA provide an
appropriate definition for the term ``aluminum castings'' and also use
the term ``aluminum castings'' in the definition for ``melting
operations'' in section 63.11556.
    Response: The facilities that cast molten metal to produce sows,
ingots, or billets are secondary metal producers and are not foundries
covered by this rule (see definition of aluminum foundry in section
63.11556). Secondary metal producers do not produce complex castings
that are final or near final products, but instead produce a metal
product that is a simple shape that is shipped to other facilities
(including foundries) where it is re-melted and transformed into final
product. We have revised the definitions in the final rule to make a
clearer distinction between secondary metal production (such as
secondary aluminum facilities that are subject to 40 CFR part 63,
subpart RRR) and aluminum foundries. We do not believe there is any
conflict or overlap with subpart RRR because that rule does not
regulate metal HAP emissions from aluminum foundries as this rule does.
It is possible for an aluminum foundry to be subject to both rules, but
there would be no overlap in the requirements because the two rules
apply to different HAP.
    Comment: One commenter asked that EPA clarify that 40 CFR part 63
subpart RRR sources are not included in this NESHAP. The commenter
stated that there may be confusion because, in subpart RRR (the NESHAP
for secondary aluminum production facilities), EPA included certain
area sources in that major source rule. According to the commenter, in
the secondary aluminum production rule, EPA determined that furnaces,
including area sources, melting clean charge, internal scrap, runaround
scrap, or customer returns are not subject to the requirements of
Subpart RRR because the use of clean charge materials results in
sufficiently low emissions. Therefore, the commenter requested that
furnaces melting clean charge, internal scrap, runaround scrap or other
customer returns that are area sources subject to 40 CFR part 63
subpart RRR (but excluded from the requirements) also be excluded from
applicability of this rule because EPA has already considered the
emissions from these furnaces in subpart RRR.
    Another commenter seeks clarification on aluminum foundry source
category applicability relative to the secondary aluminum MACT
standards. The commenter stated the language in the proposal preamble
addressing the source category change from secondary aluminum
production to aluminum foundries is confusing and appears to be subject
to potentially conflicting interpretations. According to the commenter,
the language can be interpreted to mean that the secondary aluminum
production source category, for which there are existing MACT standards
under 40 CFR part 63 subpart RRR, has been changed. The commenter said
this distinction is of particular importance since the secondary
aluminum production MACT standards also apply in part to area sources.
    Response: This rule, subpart ZZZZZZ, does not apply to secondary
aluminum production facilities, including those secondary aluminum
production facilities that are area sources. Furthermore, EPA did not
intend any overlap or conflict between 40 CFR part 63 subpart RRR and
this rule. Certain types of area source aluminum foundries are subject
to a dioxin emission limit under subpart RRR, but subpart RRR has no
metal HAP or PM emission limits that would apply to these area sources.
Consequently, there are no aluminum foundries that can be addressed
solely by subpart RRR, and this foundry area source rule (40 CFR part
63 subpart ZZZZZZ) is necessary to regulate the metal HAP emissions
from aluminum foundries.
    The change in the source category name in this rule does not change
the source category name for secondary aluminum plants subject to
subpart RRR. The effect of the change in name is to list aluminum
foundries as an area source category for which standards must be
developed, and to remove secondary aluminum facilities as a source
category for which standards must be developed. We explained in the
proposal preamble, 74 FR 6511, that we incorrectly named the
``Secondary

Aluminum Production'' category in the area source category listing
notice, and the emissions used in the listing were from aluminum
foundries (see also the EPA memorandum cited in the proposal preamble,
dated November 26, 2002, which explains this error at Docket ID No.
EPA-HQ-OAR-2008-0236, Item 0011).
    Comment: One commenter stated his plant produces beryllium-copper
alloys, copper alloys that do not contain beryllium, and beryllium
alloys that do not contain copper. The commenter noted that his plant
is subject to the NESHAP ambient air quality standard for beryllium,
which is set forth in 40 CFR part 61.32(b). The commenter requested
that EPA clarify that the proposed rule for copper and other nonferrous
foundries does not apply to his facility because it is already subject
to part 61 due to emissions of beryllium. The commenter requested that
EPA expressly state in the preamble to the final rule that facilities
currently subject to part 61 are not covered by the proposed copper and
other nonferrous foundry rule. To make this clear in the rule itself,
the commenter suggested that EPA exempt any foundries located at a
facility that produces beryllium and/or beryllium alloys and is covered
by 40 CFR part 61.32 through 61.34 which coverage, of course, mandates
title V permitting for that facility.
    Another commenter asked for clarification on whether their facility
would be classified as a ``foundry'' and subject to the rule since the
facility melts copper scrap in a gas-fired melting furnace and is a
metal powder producer with main product lines consisting of copper,
bronze and tin powders.
    Response: The information supplied by the commenters indicates that
these facilities may be secondary metal production facilities that do
not cast the molten metal into complex shapes that are final products.
As discussed in response to an earlier comment, we have clarified the
distinction between foundries and secondary metal producers. We cannot
state in the preamble and rule that these facilities are not subject to
the rule, and any questions related to applicability should be
discussed with the permitting authority (i.e., the State agency if
delegated or the EPA regional office if not delegated). In response to
the comment about already being subject to a part 61 standard, we
confirm that it is possible for an area source to be subject to both a
part 61 standard and an area source standard.
    Comment: One commenter asked how ``nonferrous'' is defined or
interpreted by EPA and whether it is reasonable to infer that
``nonferrous'' excludes any iron-containing metal (e.g., nickel alloy
containing 10 percent iron would be considered ferrous). Another
commenter stated that because many foundries that pour nonferrous
metals also pour ferrous metal alloys in the same building, it should
be emphasized that this rule is not intended to apply to ferrous alloys
and suggested that the word ``nonferrous'' should be added before the
word ``material'' in the definition of ``material containing copper
foundry HAP.''
    Response: The types of facilities described by the commenters are
nonferrous foundries if they melt any nonferrous metals (other than
copper or aluminum or copper based alloys) unless their melting
operations have been identified as a ferrous melting operation that is
subject to the area source standard for iron and steel foundries (40
CFR part 63, subpart ZZZZZ). The other nonferrous foundry (i.e., other
than copper and aluminum foundries) source category is comprised of
facilities identified under NAICS 331528, Other Nonferrous Foundries
(except Die-Casting): ``This U.S. industry comprises establishments
primarily engaged in pouring molten nonferrous metals (except aluminum
and copper) into molds to manufacture nonferrous castings (except
aluminum die-castings, nonferrous (except aluminum) die-castings,
aluminum castings, and copper castings). Establishments in this
industry purchase nonferrous metals, such as nickel, lead, and zinc,
made in other establishments.'' Examples are foundries (excluding die
casting) melting zinc and zinc-base alloys, nickel and nickel-base
alloys (including ferrous metal), magnesium and magnesium-base alloys.
However, we have not defined the different types of foundries by NAICS
because a facility could have multiple types of foundries and NAICS. We
specifically define aluminum, copper, and other nonferrous foundry in
the rule, and a nonferrous foundry could be co-located with an iron and
steel foundry.
    Comment: One commenter stated that the proposed definition of
``copper foundry'' should be revised to exclude primary copper
smelters, refineries and stand-alone rod mills. The commenter stated
that EPA should make clear that the definition does not include the
melting of copper (scrap copper, anode copper or cathode copper) at
primary copper smelters and refineries, and pouring into casting
machines to produce anode copper, copper rod and cake.
    Response: EPA has revised the definition of copper foundry, stating
that ``this definition does not include primary or secondary metal
producers that cast molten copper to produce simple shapes such as
sows, ingots, billets, bars, anode copper, rods or copper cake.''

D. Management Practices

1. Purchased Scrap Requirements
    Comment: One commenter stated that the rule provides that aluminum,
copper, and other nonferrous foundry area sources that are subject to
the rule shall ``purchase only metal scrap that has been depleted (to
the extent practicable) of aluminum foundry HAP, copper foundry HAP, or
other nonferrous foundry HAP (as applicable) in the materials charged
to the melting furnace.'' Because foundries also charge ingots, sow,
alloys and other ``clean charge'' materials into the melting furnace,
the commenter said that EPA should clarify that this provision also
includes these materials. According to the commenter, in purchasing
these materials, a foundry may have content specification for its
casting application and product that should be sufficient to meet the
``deplete'' criterion of this management practice, and other references
to ``metal scrap'' should be broadened to include these ``compliant''
clean charge materials.
    Another commenter quoted the proposed rule as stating that
foundries are to ``purchase only metal scrap that has been depleted (to
the extent practicable) of * * * HAP.'' Because the specifications of
many nonferrous alloys contain metallic HAP, the commenter recommends
the rule be changed to state ``excluding metallic HAP that are required
to be added for the production of alloyed castings.''
    One commenter recommended the HAP content requirement for melting
metal scrap be deleted or substantially modified to avoid a domestic
prohibition against recycling valuable metal scrap. The commenter
stated that the proposal requires that covered foundries purchase
``only metal scrap that has been depleted (to the extent practicable)''
of the identified HAP, but said that this purchase requirement is vague
and the word ``deplete'' is not defined. The commenter said that it is
important for EPA to make this clarification to avoid the risk that the
depletion requirement will be spuriously interpreted as prohibiting the
remelting of scrap that contains HAP in excess of low levels or even
trace amounts because it would mean that some metal scrap could only be
buried

or exported for remelting outside the U.S. The commenter noted that the
proposal recognizes the importance of recycling by providing that the
management practice requires the use of scrap depleted of HAP metals
except where the scrap is purchased specifically for its HAP metal
content for use in alloying. The commenter asked that this provision be
broadened by changing the phrase ``for use in alloying'' to ``for use
in the production of metal or alloys.'' According to the commenter,
this change is appropriate and needed because metal HAP in scrap can be
valuable in the production of a metal as well as of an alloy.
    One commenter recommended that EPA amend definitions in the
proposed rule to align the applicability with subpart RRR. The
commenter stated that the preamble to the rule indicates that GACT is
considered the use of ``clean charge'' but, rather than defining that
term, EPA requires that affected sources purchase or use only metal
scrap that has been ``depleted of HAP metals (to the extent
practicable) charged to the melting furnace.'' According to the
commenter, EPA does not clearly define clean charge or explain what it
means to deplete material of HAP metals ``to the extent practicable.''
The commenter is concerned that the definition of ``depleting to the
extent practicable'' could change over time, leading to the proposed
standard becoming a moving target for sources. Moreover, the commenter
is concerned that internal scrap, which is permissible to use under
subpart RRR, continue to be usable without any additional conditions
under this proposed rule. To that end, the commenter requests that EPA
revise the definition of ``material containing aluminum foundry HAP''
to clarify that clean charge, internal scrap, runaround scrap, and
customer returns do not fall within that definition.
    The commenter recommended adding this sentence to the definition:
``For purposes of this subpart the following materials are not material
containing aluminum foundry HAP--clean charge, internal scrap,
runaround scrap, or customer returns, as defined in Sec.  (section)
63.1503.'' The commenter said another way of addressing this concern
would be to clarify in section 63.11550 that use of clean charge,
internal scrap, runaround scrap, or customer returns as defined in
section 63.1503 of subpart RRR, constitutes compliance with the
requirements of this rule by adding this sentence: ``Purchase or use of
clean charge, internal scrap, runaround scrap, or customer returns, as
defined in Sec.  63.1503 constitutes compliance with the requirement of
this subparagraph to deplete a material of aluminum foundry HAP.''
    Response: Our intent was that purchased metal scrap be depleted to
the extent practicable of HAP contaminants, except when the HAP metal
is an important specified component in the final casting. We did not
intend for this provision to apply to ingots, sows, and alloys (they
are not metal scrap), nor did we intend it to apply to internal scrap,
runaround scrap, and customer returns (they are not purchased). We have
clarified the final rule by stating that the provisions relating to the
purchase of only metal scrap do not apply to ``material that is not
scrap (e.g., ingots, alloys, sows) or to materials that are not
purchased (e.g., internal scrap, customer returns)''.
    We acknowledged at proposal that certain types of scrap metal
containing HAP were necessarily purchased to meet alloy specifications.
We have clarified the management practices in the final rule that
purchased metal scrap must be depleted to the extent practicable of HAP
metals except when the HAP metal is needed to meet specifications for
the casting. We have also added a recordkeeping requirement for
documentation that the HAP metal is in the specifications for the cast
metal product.
    Comment: One commenter suggested that EPA eliminate records for
``use'' and focus solely on ``purchase.'' The commenter said the
proposed rule requires facilities to purchase only metal scrap that has
been depleted to the extent practicable of the relevant HAP. However,
the commenter notes that the recordkeeping and labeling requirements in
the proposed rule refer to ``purchase and use'' of such scrap. The
commenter is concerned that the insertion of the word ``use'' might be
misread to require tracking of use after metal enters the facility even
though he understands that not to be EPA's intent. The commenter said
that EPA has appropriately determined that this aspect of the standard
should apply at the point of purchase (i.e., entry to the facility) as
the most effective way of assessing compliance and, after that point,
the ``usage'' is not relevant to compliance. The commenter recommends
that EPA delete the word ``use,'' or if that word is to remain, change
the phrasing to ``purchase for use.''
    Response: We revised the reporting requirements to be consistent
with the management practice provision, which stated ``purchase only
metal scrap * * *,'' by deleting the words ``and use'' in the reporting
requirements as suggested by the commenter.
    Comment: One commenter requested that EPA clarify that the alloy
exception for purchased scrap in section 63.11550(a)(2) also applies to
nickel or other HAP.
    Response: The exception for ``metal scrap that is purchased
specifically for its HAP metal content for use in alloying'' (alloy
exception) applies to any aluminum foundry HAP, copper foundry HAP and
other nonferrous foundry HAP.
    Comment: One commenter stated that the rule has a potentially
adverse effect upon the beneficial reuse of metal scrap and asked that
EPA consider not imposing the scrap purchase requirement upon those
furnaces which are subject to the PM emission and control efficiency
requirements. According to the commenter, these highly-controlled and
closely-monitored furnaces are where EPA should most strongly encourage
the melting of metal scrap and that EPA can encourage this practice by
exempting these furnaces from the scrap purchase requirement and their
attendant burdens. The commenter said that EPA can appropriately do so
because these furnaces are the ones that are subject to the additional
emission and control efficiency requirements, which make the scrap
purchase requirement redundant and therefore unnecessary.
    Response: Our analysis indicated that the management practices in
the proposed rule represent GACT for all furnaces, even for those
melting furnaces equipped with efficient emission controls. We expect
careful attention to purchasing scrap metal, which has been depleted to
the extent practicable of HAP metals that are not needed in the final
casting, and use of covers during melting will reduce emissions at all
melting operations. Consequently, we are requiring the use of
management practices, including the limitations on scrap metal, at all
of the affected sources, even if the furnaces are equipped with control
devices for PM and metal HAP.
2. Covers
    Comment: One commenter recommended the following revision to the
requirement to use covers:

    Cover or enclose each melting furnace that is equipped with a
cover or enclosure during the melting operation to the extent
practicable (e.g., except for standard foundry operating practices
such as when access is needed for charging, alloy addition, tapping,
ladling, fluxing, slagging/drossing, temperature measurement,
observation).

    The commenter also asked that EPA make clear that this
parenthetical list of practices is illustrative, and is not meant to be
exclusive or limiting in any way. The commenter suggested it would be
helpful to have an additional example to address the situation in which
a cover-closing mechanism fails and the cover must remain open, or
partially open, until maintenance can be performed within a reasonable
period. As an example, the commenter said one copper foundry reported
that it would be impractical to cover and uncover a melting furnace
continually for its permanent mold operations that ladles the metal
into molds as many as 35 times in an hour.
    One commenter stated that the rule should be revised to clarify
requirements during periods that cover-closing mechanisms fail. The
commenter said that occasionally the closing mechanism on a cover will
jam, requiring maintenance to correct the problem, and these periods
should be included as times during which it is not practicable to close
the cover.
    Another commenter suggested adding to the rule other examples of
opening a cover on the melting furnace and to state that other examples
include, but may not be limited to, ramming, scraping, fluxing,
slagging, sampling, and temperature taking.
    Response: The commenter correctly quoted the proposed rule, but we
believe the commenter misreads the management practices requirements
and that the term ``to the extent practicable'' addresses the concerns
raised by the commenters. We cannot include every possibility in the
rule of when it might be necessary to not use the cover. However, we
have added the phrase ``including but not limited to'' to the examples
in the rule to indicate that the list is not all inclusive.
3. Other Management Practices
    Comment: One commenter said that foundries subject to the proposed
regulation are required to prepare and operate pursuant to a written
management practices plan and that the plan must include the management
practices required by the rule, as well as ``any other management
practices that are implemented at the facility to minimize emissions
from melting furnaces.'' The commenter stated that foundries that
implement additional management practices to minimize emissions from
melting furnaces should not have additional regulatory requirements
imposed on them through the written management plan because a foundry
that implements an additional management practice that results in
reduced emissions from the melting furnace could be penalized if the
practice is not included in the written management practices plan. The
commenter believes such a result is unreasonable, and instead EPA
should change the regulatory language to state that a facility may
include additional management practices that minimize emissions from
melting furnaces in the written management practices plan.
    Response: We proposed to require the use of two management
practices. We are finalizing those management practices in this rule,
and they must be in the management practices plan. Although owners and
operators can include additional requirements in their management
practices plan, they are not required to do so by this rule. If,
however, additional management practices are included in the plan, the
owner or operator could be held responsible for them to the extent they
are not followed. See section 11550(a)(3) in the final rule.

E. Definitions

    Comment: One commenter requested that EPA add a definition of
``deviation'' for purposes of this rule so it is clear to sources when
they need to report. Because this is an area source rule, the commenter
believes that sources may not be subject to part 70 and, in any event,
may not be familiar with deviation reporting, and that EPA should
explain that a deviation occurs if the facility fails to meet
applicable standards.
    Response: We agree that a definition of ``deviation'' is needed,
and we have added the definition that has been used in other NESHAP,
such as the area source standard for iron and steel foundries (40 CFR
63, subpart ZZZZZ).
    Comment: Two commenters stated that EPA should clearly define in
the rule that the affected source is a ``melting operation.'' The
commenters stated that the affected source is defined in the preamble
as ``* * * foundry melting operations (including all the various types
of melting furnaces at the affected foundry) * * *'' However, the
commenters said that the affected source does not appear to be defined
within the rule.
    Response: We agree that the rule language should specify what the
affected source is, and we have stated directly in the final rule that
the affected source is the collection of all melting operations at the
facility.
    Comment: One commenter asked to see clearer distinctions in the
rule between the requirements for ``large'' foundries (above 6,000
tpy), ``small'' foundries (less than 6,000 tpy, but above 600 tpy
actual), and ``exempt'' foundries (below 600 tpy actual).
    Response: We have clarified the final rule, as the commenter
suggested, and inserted definitions for ``large'' and ``small''
foundries that are subject to different requirements. It is important
to recognize, however, that foundries with an annual metal melt
production less than 600 tpy in calendar year 2010 are not exempted
from the rule, but rather these foundries are not included in the
source category, as discussed above in Section VI.B., and, therefore,
not subject to the management practices, recordkeeping and other
requirements of this final rule. In addition, it is also important to
note that these rule requirements will not apply to these foundries so
long as their production after calendar year 2010 remains below 600
tpy.
    Comment: One commenter suggested that EPA add a definition of ``die
casting'' to the rule to help clarify what operations are not
applicable to the rule and asked that EPA also clarify the
applicability of permanent mold casting, including ``low pressure
permanent mold casting'' and ``vacuum permanent mold casting''
operations.
    Another commenter asked for clarification of applicability when
melting furnaces for die casting operations, which are not part of the
source category, are co-located with aluminum, copper or other
nonferrous foundry melting furnaces that are included in the source
category. This commenter also requested a definition of ``die
casting.'' The commenter also stated that it would be helpful for EPA
to define ``aluminum die casting operations,'' and, for clarity, to
make a conforming change to its definition of ``aluminum foundry''
using this defined term. The commenter suggested a modified version of
the NAICS definition: ``aluminum die casting operations mean operations
included under the Standard Industrial Classification code 3363 and
NAICS 331521. For purposes of this subpart, aluminum die casting
operations includes low-pressure injection and high-pressure injection
die casting process methods'' and ``aluminum foundry means a ``facility
that melts aluminum and pours molten aluminum into molds to manufacture
aluminum castings (except aluminum die casting operations).''
    Response: We agree that ``die casting'' should be defined and have
done so in the final rule using the NAICS definition, which
specifically states ``under high pressure'' and does not include
``under low pressure,'' as suggested by the commenter. With

regard to co-located operations, if melting operations for die casting
and other types of casting are co-located, melting operations dedicated
to die casting are not subject to this rule. However, melting
operations that serve both types of casting operations are subject to
the rule.
    In response to the clarification on permanent mold casting, the
rule applies to facilities using permanent mold casting because it is
not die casting.

F. Monitoring, Reporting and Recordkeeping

    Comment: Two commenters noted that records must identify the date
and time of each melting operation; however, many foundries do not
record this level of detail and are not configured to record this level
of detail. In addition, the commenter said the benefit of such
recordkeeping detail is not apparent and requested that EPA remove the
requirement for recording the time of each melt event.
    Two commenters requested that the reporting and recordkeeping be
simplified and not required on a per melt basis. The commenter stated
that his facility is subject to title V permitting requirements, and
that the proposal's monitoring, recordkeeping and reporting
requirements are based on EPA's expectation that the furnaces being
regulated would not be subject to title V permit requirements. The
commenter believes that overlaying the proposal's requirements on his
plant would produce a complexity and added costs without any added
benefits and stated that this is why EPA has proposed to exempt these
foundries from title V permitting.
    Another commenter claimed that demonstrating compliance with this
management practice can also be unnecessarily burdensome because the
rule states that a foundry ``must keep records to document conformance
with the management practice plan'' and that the records ``must
identify each melting furnace equipped with a cover or enclosure, the
date and time of each melting operation, and that the procedures in the
management practices plan were followed for each melting operation.''
According to the commenter, this recordkeeping requirement is too
onerous for area source foundries, so much so that some foundries could
be forced to have one full-time employee dedicated to this single
regulatory requirement.
    As proposed, the commenter said this requirement would be a serious
disincentive for foundries to have covers or enclosures on their
melting furnaces, because melting furnaces that are not equipped with
covers and enclosures are in compliance with this management practice
and have no recordkeeping requirements at all. The commenter continued
by saying that such a result is counterproductive, and regulations
should provide foundries with incentives to install covers and
enclosures rather than adding regulatory burdens to those that already
have them installed. The commenter recommended that EPA streamline the
recordkeeping requirement for covers and enclosures to state that the
facility shall demonstrate that it follows the standard foundry
operating practices for covers and enclosures that are included in its
written management practices plan.
    If EPA adopts the proposed approach discussed above, two commenters
asked that EPA clarify that records of each time the furnace is opened
and charged are not required because the proposed rule is ambiguous on
this point. An alternative approach suggested by the commenter would be
to require monthly inspections to verify that the covers are closed at
the appropriate times during the melting operations. According to the
commenter, given that sources already have a strong incentive to close
covers on furnaces during operations due to OSHA and energy
conservation concerns, a periodic check of operations is certainly
sufficient to provide an assurance of compliance.
    One commenter was concerned that sources will be required to record
and report deviations from the recordkeeping requirements even though
the covers were likely closed. According to the commenter, even with
EPA's suggestion that checklists can be used, at a facility that does
not have an extensive staff, an operator may fail to ``check the box''
even though the operator is following the good management practice of
closing the cover that the facility has always used. The commenter said
that these types of deviations may make a facility appear as though it
is violating the standard even though it is substantively compliant.
The commenter stated that a monthly inspection approach, on the other
hand, will avoid this paperwork issue while still ensuring that
facilities routinely comply with the rule. The commenter provided
specific recommendations for revising the proposed rule language to
address their recordkeeping concerns.
    Response: After considering the numerous comments on the burden of
the proposed recordkeeping requirements, we agree that the requirements
can be streamlined and still be effective. Based on the comments
provided, EPA agrees that the burden to record the time of each melting
operation and document that the management practices for covers were
followed for each melting operation may require significant additional
labor to implement. We have revised the rule to require that the owner
or operator inform their appropriate operating personnel of the
applicable management practices, perform monthly inspections to ensure
that they are being followed, and maintain records documenting
conformance with the management practices plan. The rule no longer
requires records for the time of each melting operation and
documentation that covers were used during each melt.
    Comment: One commenter suggested that EPA consider a notification
for copper and other nonferrous foundries to determine their production
level above or below the 6,000 tpy threshold because such a
notification would help to clarify which foundries are subject to the
applicable emissions limits and monitoring requirements.
    Response: We have revised the rule to require sources to indicate
whether they are a small or a large foundry in the Notification of
Compliance report.
    Comment: One commenter said that EPA appears to be requiring all
new sources equipped with a fabric filter to install, operate, and
maintain a bag leak detection system, but that does not appear to be