[Federal Register: December 28, 2007 (Volume 72, Number 248)]
[Rules and Regulations]
[Page 74087-74116]
[DOCID:fr28de07-24]

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Part III

Environmental Protection Agency

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40 CFR Part 63

 National Emission Standards for Hazardous Air Pollutants for Area
Sources: Electric Arc Furnace Steelmaking Facilities; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2004-0083; FRL-8509-5]
RIN 2060-AM71

National Emission Standards for Hazardous Air Pollutants for Area
Sources: Electric Arc Furnace Steelmaking Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is issuing national emission standards for electric arc
furnace steelmaking facilities that are area sources of hazardous air
pollutants. The final rule establishes requirements for the control of
mercury emissions that are based on the maximum achievable control
technology and requirements for the control of other hazardous air
pollutants that are based on generally available control technology or
management practices.

DATES: This final rule is effective on December 28, 2007. The
incorporation by reference of certain publications listed in this final
rule is approved by the Director of the Federal Register as of December
28, 2007.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2004-0083. All documents in the docket are
listed in the Federal Docket Management System index at http://www.regulations.gov
 index. Although listed in the index, some

information is not publicly available, e.g., confidential business
information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov
 or in hard copy at the National Emission Standards

for Hazardous Air Pollutants for Area Sources: Electric Arc Furnace
Steelmaking Facilities Docket at the EPA Docket and Information Center
in the EPA Headquarters Library, 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<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Mr. Phil Mulrine, Sector Policies and
Program Division, Office of Air Quality Planning and Standards (D243-
02), Environmental Protection Agency, Research Triangle Park, North
Carolina 27711, telephone number<PHONE_NUMBER>; fax number (919) 541-
3207, e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Outline. The information presented in this
preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document?
    C. Judicial Review
II. Background Information for the Final Rule
III. Summary of Final Rule and Changes Since Proposal
    A. Applicability and Compliance Date
    B. Final MACT Standards for the Control of Mercury
    C. Final GACT Standards for EAF and AOD Vessels
    D. Final GACT Standards for Scrap Management
    E. Recordkeeping and Reporting Requirements
IV. Summary of Comments and Responses
    A. Basis for Area Source Standards
    B. Proposed MACT Standard for Mercury
    C. Proposed GACT Standard for Metal HAP Other Than Mercury
    D. Proposed GACT Standards for Scrap to Control HAP Other Than
Mercury
    E. Miscellaneous Comments
V. Impacts of the Final Rule
VI. 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 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 category and entities potentially affected by this
final action include:

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                                                  Examples of regulated
            Category              NAICS code\1\          entities
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Industry.......................          331111  Steel mills with
                                                  electric arc furnace
                                                  steelmaking facilities
                                                  that are area sources.

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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 would be regulated by this
action, you should examine the applicability criteria in 40 CFR
63.10680 of subpart YYYYY (National Emission Standards for Hazardous
Air Pollutants for Area Sources: Electric Arc Furnace Steelmaking
Facilities). 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 U.S. Court of Appeals for the District of Columbia Circuit by
February 26, 2008. Under section 307(d)(7)(B) of the CAA, only an
objection to this final rule that was raised with reasonable
specificity during the period for public comment can be raised during
judicial review. Moreover, 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 us to convene a proceeding for
reconsideration, ``[i]f the person raising an objection can demonstrate
to the 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, Environmental Protection Agency, Room
3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC
20460, with a copy to the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section, and the Associate General Counsel for the
Air and Radiation Law Office, Office of General Counsel (Mail Code
2344A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20004.

II. Background Information for the Final Rule

    Section 112(k)(3)(B) of the CAA requires EPA to identify at least
30 hazardous air pollutants (HAP), which, as the result of emissions of
area sources,\1\ pose the greatest threat to public health in urban
areas. Consistent with this provision, in 1999, in the Integrated Urban
Air Toxics Strategy, EPA identified the 30 HAP that pose the greatest
potential health threat in urban areas, and these HAP are referred to
as the ``Urban HAP.'' See 64 FR 38715, July 19, 1999. 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. EPA listed the
source categories that account for 90 percent of the Urban HAP
emissions in the Integrated Urban Air Toxics Strategy.\2\ Sierra Club
sued EPA, alleging a failure to complete standards for the area source
categories listed pursuant to CAA sections 112(c)(3) and (k)(3)(B)
within the time frame specified by the statute. See Sierra Club v.
Johnson, No. 01-1537, (D.D.C.). On March 31, 2006, the court issued an
order requiring EPA to promulgate standards under CAA section 112(d)
for those area source categories listed pursuant to CAA section
112(c)(3). Among other things, the court order, as amended on October
15, 2007, requires that EPA complete standards for 9 area source
categories by December 15, 2007. On September 20, 2007 (72 FR 53814),
we proposed NESHAP for the electric arc furnace (EAF) steelmaking area
source category. Other final NESHAP will complete the required
regulatory action for the remaining area source categories.
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    \1\ An area source is a stationary source of hazardous air
pollutant (HAP) emissions that is not a major source. A major source
is a stationary source that emits or has the potential to emit 10
tons per year (tpy) or more of any HAP or 25 tpy or more of any
combination of HAP.
    \2\ Since its publication in the Integrated Urban Air Toxics
Strategy in 1999, EPA has revised the area source category list
several times.
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    Under CAA section 112(d)(5), the Administrator may, in lieu of
standards requiring maximum achievable control technology (MACT) under
section 112(d)(2), elect to promulgate standards or requirements for
area sources ``which provide for the use of generally available control
technologies or management practices by such sources to reduce
emissions of hazardous air pollutants.'' As explained in the preamble
to the proposed NESHAP, we are issuing standards based on GACT for the
control of the Urban HAP arsenic, cadmium, chromium, lead, manganese,
and nickel from area source EAF steelmaking facilities.
    Section 112(c)(6) requires EPA to list, and subject to standards
pursuant to section 112(d)(2) or (d)(4), categories of sources
accounting for not less than 90 percent of emissions of each of seven
specific HAP: Alkylated lead compounds, polycyclic organic matter,
hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,9-
tetrachlorodibenzofurans, and 2,3,7,8-tetrachloridibenzo-p-dioxin.
Standards established under CAA section 112(d)(2) must reflect
performance of MACT. On September 20, 2007 (72 FR 53817), we added EAF
steelmaking facilities that are area sources to this list of source
categories under CAA section 112(c)(6) solely on the basis of mercury
emissions. As discussed in the preamble to the proposed NESHAP, we are
issuing MACT standards pursuant to CAA section 112(d)(2) for mercury
emissions from all EAF steelmaking facilities that are area sources of
HAP. The notice also announced a revision to the area source category
list developed under our Integrated Urban Air Toxics Strategy pursuant
to CAA section 112(c)(3). The revision changed the name of the listed
area source category ``Stainless and Nonstainless Steel Manufacturing
Electric Arc Furnaces (EAF)'' to ``Electric Arc Furnace Steelmaking
Facilities.''

III. Summary of Final Rule and Changes Since Proposal

A. Applicability and Compliance Date

    The final NESHAP applies to each new or existing EAF steelmaking
facility that is an area source of HAP. The owner or operator of an
existing area source that does not have to install or modify emissions
control equipment to meet the opacity limit for fugitive emissions must
comply with all applicable rule requirements no later than June 30,
2008. The owner or operator of an existing area source that must
install or modify emission control equipment to meet the opacity limit
for fugitive emissions may request a compliance date for the opacity
limit that is no later than December 28, 2010 and must demonstrate to
the satisfaction of the permitting authority that the additional time
is needed. We revised the compliance date from 2 years to 3 years if a
facility can demonstrate the additional time is needed to install
controls after considering comments on the upgrades that some
facilities may need to meet the opacity limit. The owner or operator of
a new affected source must comply with all applicable rule requirements
by December 28, 2007 (if the startup date is on or before December 28,
2007) or upon startup (if the startup date is after December 28, 2007).

B. Final MACT Standards for the Control of Mercury

    The final standards for mercury are based on pollution prevention
and require an EAF owner or operator who melts scrap from motor
vehicles either to purchase (or otherwise obtain) the motor vehicle
scrap only from scrap providers participating in an EPA-approved
program for the removal of mercury switches or to fulfill the
alternative requirements described below. EAF facilities participating
in an approved program must maintain records identifying each scrap
provider and documenting the scrap provider's participation in the EPA-
approved mercury switch removal program. A compliance option requires
the EAF facility to prepare and operate pursuant to an approved site-
specific plan that includes specifications to the scrap

provider that mercury switches must be removed from motor vehicle
bodies at an efficiency comparable to that of the EPA-approved mercury
switch removal program (see below). An equivalent compliance option is
provided for facilities that do not utilize motor vehicle scrap that
contains mercury switches. We have added a new provision to the final
rule for scrap that does not contain motor vehicle scrap to require
certification and records documenting that the scrap does not contain
motor vehicle scrap.
    We expect most facilities that use motor vehicle scrap will choose
to comply by purchasing motor vehicle scrap only from scrap providers
who participate in a program for removal of mercury switches that has
been approved by the Administrator. The NVMSRP \3\ is an approved
program under this final standard. In response to comments, we are also
identifying the Vehicle Mercury Switch Removal Program mandated by
Maine State law as an EPA-approved program. Facilities choosing to use
an EPA-approved program as a compliance option are required to assume
all of the responsibilities for EAF steelmakers as described in the
NVMSRP MOU. The NVMSRP is described in detail in section III.D.1 of the
preamble to the proposed rule. In response to comments, we are
including in the final rule provisions for EPA-approved programs that
specify certain responsibilities that the EAF steelmaking industry
agreed to in signing the MOU, including developing a plan that
demonstrates how the facility is participating in the program,
documenting communication and outreach to scrap providers, and
corroboration to ensure mercury switches are being removed.
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    \3\ Additional details can be found at http://www.epa.gov/mercury/switch.htm
 and in section IV.D.1 of this preamble. In

particular, see the signed Memorandum of Understanding.
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    EAF facilities may also obtain scrap from scrap providers
participating in other programs if they obtain EPA approval of the
program. To do so, the facility owner or operator must submit a request
to the Administrator for approval to comply by purchasing scrap from
scrap providers that are participating in another switch removal
program and demonstrate to the Administrator's satisfaction that the
program meets the following specified criteria: (1) There is an
outreach program that informs automobile dismantlers of the need for
removal of mercury switches and provides training and guidance on
switch removal, (2) the program has a goal for the removal of at least
80 percent of the mercury switches, and (3) the program sponsor must
submit annual progress reports on the number of switches removed and
the estimated number of motor vehicle bodies processed (from which a
percentage of switches removed is derivable).
    EAF facilities that purchase motor vehicle scrap from scrap
providers that do not participate in an EPA-approved mercury switch
removal program have to prepare and operate pursuant to and in
conformance with a site-specific plan for the removal of mercury
switches. The facility's scrap specifications must include a
requirement for the removal of mercury switches, and the plan must
include provisions for obtaining assurance from scrap providers that
mercury switches have been removed. The plan must be submitted to the
permitting authority for approval and demonstrate how the facility will
comply with specific requirements that include: (1) A means of
communicating to scrap purchasers and scrap providers the need to
obtain or provide motor vehicle scrap from which mercury switches have
been removed and the need to ensure the proper disposal of the mercury
switches, (2) provisions for obtaining assurance from scrap providers
that motor vehicle scrap provided to the facility meets the scrap
specifications, (3) provisions for periodic inspection, or other means
of corroboration to ensure that scrap providers and dismantlers are
implementing appropriate steps to minimize the presence of mercury
switches in motor vehicle scrap, (4) provisions for taking corrective
actions if needed, and (5) requiring each motor vehicle scrap provider
to provide an estimate of the number of mercury switches removed from
motor vehicle scrap sent to the facility during the previous year and
the basis for the estimate. The permitting authority may request
documentation or additional information from the owner or operator at
any time. The site-specific plan must establish a goal for the removal
of at least 80 percent of the mercury switches. All documented and
verifiable mercury-containing components removed from motor vehicle
scrap counts towards the 80 percent goal. We have clarified in the
final rule that the owner or operator must operate according to the
plan during the review and approval process, must address any
deficiencies noted by the permitting authority within 60 days, and may
request changes to the plan.
    An equivalent compliance option is provided for EAF owners or
operators who do not utilize motor vehicle scrap that contains mercury.
The option requires the facility to certify that the only materials
they are charging from motor vehicle scrap are materials recovered for
their specialty alloy, such as chromium in certain exhaust systems.

C. Final GACT Standards for EAF and AOD Vessels

    The final rule requires the owner or operator to install, operate,
and maintain capture systems for EAF and AOD vessels that convey the
collected emissions to a venturi scrubber or baghouse for the removal
of PM. We are establishing separate emissions limits for new and
existing EAF steelmaking facilities that produce less than 150,000 tpy
of stainless or specialty steel, and for larger, non-specialty EAF
steelmaking facilities. The small facilities are required to comply
with a PM emissions limit of 0.8 pounds of PM per ton (lb/ton) of steel
for each control device serving an EAF or AOD vessel. Alternatively,
small specialty producers may elect to comply with a PM limit of 0.0052
grains per dry standard cubic foot (gr/dscf). The final rule also
includes an opacity limit of 6 percent for melt shop emissions. All
other EAF steelmaking facilities (both existing and new) are required
to meet a PM limit of 0.0052 grains per dry standard cubic foot (gr/
dscf) for emissions from a control device for an EAF or AOD vessel. The
opacity of emissions from melt shops from these sources is limited to 6
percent. We have clarified in the final rule that the emission limits
apply to AOD vessels and do not apply to ladle metallurgy operations.
    Performance tests are required for each emissions source to
demonstrate initial compliance with the PM and opacity limits.
Provisions are included in the rule for conducting the tests. The owner
or operator of an existing EAF steelmaking facility is allowed to
certify initial compliance with the emissions limits if a previous test
was conducted during the past 5 years using the methods and procedures
in the rule and either no process changes have been made since the
test, or the owner or operator can demonstrate that the test results,
with or without adjustments, reliably demonstrate compliance despite
process changes.
    All EAF steelmaking facilities are required to have or obtain a
title V permit. We have clarified in the final rule that sources that
already have a title V permit are not required to obtain a new title V
permit as a result of this area source rule. However, sources that
already have a title V permit must include the requirements of this
rule through a permit reopening or at

renewal according to the requirements of 40 CFR part 70 and the title V
permit program. See 40 CFR 70.7(f). The final rule requires each EAF
steelmaking facility to monitor the capture system, PM control device,
and melt shop; maintain records; and submit reports according to the
CAM requirements in 40 CFR part 64. The existing part 64 rule requires
the owner or operator to establish appropriate ranges for selected
indicators for each emissions unit (i.e., operating limits) such that
operation within the ranges will provide a reasonable assurance of
compliance with the emissions limitations or standards.
    The CAM rule requires the owner or operator to submit certain
monitoring information to the permitting authority for approval. This
information includes: (1) The indicators to be monitored; (2) the
ranges or designated conditions for such indicators, or the process by
which such indicator ranges or designated conditions will be
established; (3) performance criteria for the monitoring; and if
applicable, (4) the indicator ranges and performance criteria for a
CEMS, COMS, or predictive emissions monitoring system. The owner or
operator also must submit a justification for the proposed elements of
the monitoring control device (and process and capture system, if
applicable) and operating parameter data obtained during the conduct of
the applicable compliance or performance test.
    If monitoring indicates that the unit is operating outside of the
acceptable range established in its permit, the owner or operator must
return the operation to within the established range consistent with 40
CFR 64.7(d).

D. Final GACT Standards for Scrap Management

    In addition to meeting PM and opacity limits reflecting GACT, we
are also requiring EAF facilities to restrict the use of certain scrap
or follow a pollution prevention plan for scrap inspection and
selection that minimizes the amount of specific contaminants in the
scrap.
    The requirements are based on two pollution prevention approaches
depending on the type of scrap that is used, and a facility may have
some scrap subject to one approach and other scrap subject to the other
approach. One provision is for scrap that does not contain certain
contaminants and simply prohibits the processing of scrap containing
these contaminants (restricted scrap). Compliance is demonstrated by a
certification that the scrap does not contain the contaminants. This
scrap management approach is expected to be most useful to stainless
and specialty steel producers with stringent scrap specifications that
do not permit the use of motor vehicle scrap and scrap containing free
organic liquids. The other approach for scrap that may contain certain
contaminants is more prescriptive and requires a pollution prevention
plan, scrap specifications, and procedures for determining that these
requirements are met. This pollution prevention approach was developed
primarily for carbon steel producers that accept motor vehicle scrap
and many other types of ferrous scrap.
    Under the restricted scrap provision, the plant owner or operator
must agree to restrict the use of certain scrap, including metallic
scrap from motor vehicle bodies, engine blocks, oil filters, oily
turnings, machine shop borings, transformers and capacitors containing
polychlorinated biphenyls (PCBs), lead-containing components,
chlorinated plastics, or free organic liquids. The restriction on lead-
containing components does not apply to the production of leaded steel
(where lead is obviously needed for production).
    The other scrap management provision requires the plant owner or
operator to prepare a pollution prevention plan for metallic scrap
selection and inspection to minimize the amount of chlorinated
plastics, lead (except for the production of leaded steel), and free
organic liquids. This plan must be submitted to the permitting
authority for approval. The owner or operator is required to keep a
copy of the plan onsite and train plant personnel with materials
acquisition or inspection duties in the plan's requirements.
    The plan must include specifications for scrap materials to be
depleted (to the extent practicable) of lead-containing components
(except for the production of leaded steel), undrained used oil
filters, chlorinated plastics, and free organic liquids. The plan must
also contain procedures for determining if these requirements are met
(e.g., visual inspection or periodic audits of scrap suppliers) and
procedures for taking corrective actions with vendors whose shipments
are not within specifications.

E. Recordkeeping and Reporting Requirements

    Area sources subject to the requirements for EAF and AOD vessels
are subject to the recordkeeping and reporting requirements of the part
64 CAM rule. The general recordkeeping requirements of the part 64 rule
directs the owner or operator to comply with the recordkeeping
requirements for title V operating permits in 40 CFR 70.6(a)(3)(ii),
which require records of analyses, measurements, and sampling data. The
part 64 rule also requires the owner or operator to maintain records of
monitoring data, monitor performance data, corrective actions taken,
any written quality improvement plan (QIP), any activities undertaken
to implement a QIP, and other supporting information required by the
part 64 rule (such as data used to document the adequacy of monitoring,
or records of monitoring maintenance or corrective actions).
    The general reporting requirements of part 64 require the owner or
operator to submit monitoring reports to the permitting authority in
accordance with the requirements for facilities with title V operating
permits. The title V reporting requirements in 40 CFR 70.6(c)(1) and 40
CFR 71.6(c)(1) include a 6-month monitoring report, deviation reports,
and annual compliance certifications. The part 64 reporting
requirements specify that the 6-month monitoring report include: (1)
Summary information on the number, duration and cause (including
unknown cause, if applicable) of excursions or exceedances, as
applicable, and the corrective actions taken; (2) summary information
on the number, duration and cause (including unknown cause, if
applicable) for monitor downtime incidents (other than downtime
associated with zero and span or other daily calibration checks, if
applicable); and (3) a description of the actions taken to implement a
QIP during the reporting period. Upon completion of a QIP, the owner or
operator must include in the next summary report documentation that the
implementation of the plan has been completed and reduced the
likelihood of similar levels of excursions or exceedances occurring.
    All EAF steelmaking facilities subject to this NESHAP are also
subject to certain specified requirements of the NESHAP general
provisions (40 CFR part 63, subpart A). The general provisions include
requirements for initial notifications; startup, shutdown, and
malfunction records and reports; recordkeeping; and semiannual excess
emissions and monitoring system performance reports. The information
required in these records and reports is similar to the information
required by the CAM rule (40 CFR part 64) and the operating permits
rules (40 CFR parts 70 and 71).
    The NESHAP also includes specific recordkeeping and reporting
requirements for area source facilities subject to requirements for
control of contaminants from scrap. The area

source facilities are required to keep records to demonstrate
compliance with the requirements for their pollution prevention plan
for minimizing the amount of chlorinated plastics, lead, and free
organic liquids charged to a furnace or for the use of only restricted
scrap and the site-specific plan for mercury or any of the mercury
compliance options.
    As noted above, facilities subject to the site-specific plan for
mercury are required to keep records and submit semiannual reports on
the number of mercury switches removed by the scrap providers or the
weight of mercury recovered from those switches, an estimate of the
percent of mercury switches recovered, and certification that the
recovered mercury switches were managed at RCRA-permitted facilities.
We have clarified that the requested information can be aggregated in
the semiannual report and does not have to reported separately for
every scrap shipment. Facilities participating in an EPA-approved
program for switch removal must keep records that identify their scrap
providers and document that they participate in an approved switch
removal program. The final rule requires more extensive records for a
site-specific plan than for an approved program because extensive
recordkeeping, reporting, and measurement of success are already
required for approval of such a removal program, the NVMSRP being the
prime example.
    All facilities subject to the requirements for the control of
contaminants from scrap are required to submit semiannual reports
according to the requirements in Sec.  63.10(e) of the general
provisions. The report must identify any deviation from the rule
requirements and the corrective action taken.

IV. Summary of Comments and Responses

    We received a total of 20 comments on the proposed NESHAP from two
trade associations representing the steelmaking industry, two trade
associations representing the scrap recycling industry, two
associations representing State agencies, six environmental groups,
four State agencies, two companies, a consultant, and one private
citizen during the public comment period. Sections IV.A through IV.E of
this preamble provide responses to the significant public comments
received on the proposed NESHAP.

A. Basis for Area Source Standards

    Comment: One commenter stated that EPA's decision to issue GACT
standards for mercury pursuant to section 112(d)(5), instead of MACT
standards pursuant to section 112(d)(2) and (d)(3), is arbitrary and
capricious because EPA provided no rationale for its decision to issue
GACT standards. The commenter further stated that EPA's proposed GACT
for mercury emissions from EAFs does not satisfy section 112(d)(5) of
the CAA because EPA is relying on a voluntary program to keep switches
that contain mercury out of the EAF rather than evaluating potential
reduction measures that are commercially available.
    Response: The commenter evidently misread the proposed rule. The
proposed standard for mercury is based on MACT and is not based on
GACT. As we explained at proposal (72 FR 53816), EAF steelmaking
facilities were listed under CAA section 112(c)(6) solely on the basis
of mercury emissions, and we proposed standards for mercury under CAA
section 112(d)(2) that reflect the performance of MACT. We identified
the MACT floor (72 FR 53822) as the pollution prevention approach of
using scrap only from scrap providers that are first removing mercury
switches pursuant to an EPA-approved program. We also evaluated more
stringent beyond-the-floor options for MACT (72 FR 53824). Additional
discussion of our MACT determination is provided in section IV.B.1 of
this preamble. Since the commenter did not address any aspect of the
actual proposal, further response is unnecessary.
    If, against all natural readings, the comment is construed as
stating that EPA must first provide a rationale as to why it is not
issuing a MACT standard before it can issue a GACT standard under CAA
section 112(d)(5) for HAP other than mercury, we disagree with the
commenter for the reasons set forth in the final rules for Acrylic and
Modacrylic Fibers Production, Carbon Black Production, Chemical
Manufacturing: Chromium Compounds, Flexible Polyurethane Foam
Production and Fabrication, Lead Acid Battery Manufacturing, and Wood
Preserving (72 FR 38880, July 16, 2007). We reiterate that we do not
view the commenter as having raised an issue with respect to GACT vs.
MACT for HAP other than mercury; however, we provide this response in
an abundance of caution to the extent the comment is, in some way,
construed in this manner.

B. Proposed MACT Standard for Mercury

    We determined at proposal that the MACT floor and MACT for mercury
emissions was the pollution prevention practice of removing mercury
switches from end-of-life vehicles before the vehicles were crushed and
shredded for use in EAFs. MACT would be implemented by EAF owners or
operators purchasing scrap only from scrap providers that were
participating in an EPA-approved program for switch removal, operating
pursuant to an EPA-approved site-specific plan (of equal effectiveness
to an EPA-approved program) that ensured scrap providers had removed
mercury switches, or by not melting scrap from end-of-life vehicles. We
further proposed that the National Vehicle Mercury Switch Recovery
Program (NVMSRP) met the requirements of an EPA-approved program.
However, we received several comments questioning how the effectiveness
of an EPA-approved program would be ensured and suggestions for
improving aspects of the rule related to program transparency,
enforceability, and implementability. We have incorporated several of
these suggested improvements into the final rule, and we address these
comments and describe these improvements in detail in section IV.B.3 of
this preamble. The improvements include developing and maintaining a
plan showing how the facility is participating in the approved program,
documentation of communication to suppliers of the need for them to
remove mercury switches, or other means of corroboration by the
facility to ensure suppliers are implementing switch removal
procedures. We note here that the Administrator is committed to
evaluating the effectiveness of the approved program on a continuing
basis and is a party to the agreement that established the NMVSRP. The
parties (including the Administrator) recently reviewed the program's
effectiveness after 1 year. The 1-year review showed reasonable
progress, with recycling programs now available in every State. The
national program was slightly ahead of the schedule projected for
start-up. We now expect switch removals to steadily increase over the
next year as these programs begin to fully operate. If the
Administrator finds the program to be ineffective at the next scheduled
review under the MOU, or at any time as provided in the rule, the
Administrator may disapprove the program in whole or in part (e.g., for
a particular State), and participation in the program would no longer
be a

compliance option, leaving EAF owners or operators obliged to develop
site-specific programs for EPA approval in order to meet the
requirements of this rule. Under the site-specific program, it would
fall on the EAF owner or operator to provide a detailed accounting of
switches removed and vehicles processed from all of their scrap
providers to enable the Administrator or permitting authority to
evaluate whether the facility is in compliance with the switch removal
requirements. The somewhat lower documentation feature of the NVMSRP
provides a strong incentive to all of the parties involved in switch
removal to make every effort to ensure the NVMSRP is effective on a
continuing basis. However, if the national program were to prove
unsatisfactory and be subsequently disapproved as a compliance option,
the burden would be on the EAF owner or operator to implement a site-
specific approach. In either case (whether a national program or site-
specific program), we have codified an approach that provides
accountability and measures of effectiveness as described in detail in
section IV.B.3 of this preamble.
    We also considered a standard based on the performance of activated
carbon injection (ACI) with continuous monitoring for mercury as a
beyond-the-floor option, and as we discuss in detail in section IV.B.1
of this preamble, we rejected this option for several reasons. In
summary, ACI has not been demonstrated for EAFs, its effectiveness is
highly uncertain due in large part to the extreme variability in
mercury loading from this batch operation (e.g., it is difficult to
design and estimate the capacity of the ACI system that would be needed
to handle the highly variable loading of mercury), and it would likely
result in the landfilling of large quantities of hazardous waste (EAF
dust) that is currently recycled (pursuant to RCRA subtitle C
standards) to recover its zinc content. In addition, it would be
costly, and the continuous monitoring that would be needed to assess
the effectiveness of ACI is not feasible for the majority of EAF
facilities because they have baghouses without stacks. (See 72 FR
53817.)
1. Emission Controls and an Emission Limit for Mercury
    Comment: One commenter stated that the proposed standard for
mercury does not satisfy the requirements of section 112(d)(5) of the
CAA because EPA is relying solely upon a voluntary program to keep
switches from cars out of the EAF rather than evaluating the potential
reduction measures that are commercially available. One commenter noted
that EPA's calculated cost effectiveness of $11,000/pound (lb) of
mercury for ACI is similar to the cost effectiveness anticipated by EPA
for municipal waste combustors and medical waste incinerators, and it
is well below the control costs expected from implementation of the
utility boiler Clean Air Mercury Rule--all rules where a technology-
based standard for mercury is based upon performance of ACI. The
commenter notes that without further analysis to determine the non-air
quality health and environmental impacts and energy requirements, it
appears that ACI is a cost effective control for mercury emissions and
was rejected by EPA prematurely. Several commenters recommended that
EPA require controls beyond the vehicle switch removal program. One of
these commenters stated that ACI is widely used on other combustion
sources (e.g., municipal waste combustors, medical waste incinerators,
and hazardous waste incinerators) and that ACI has already been
successfully applied to iron and steel melters in Europe. The commenter
stated that coal-fired boilers use ACI successfully, and no
circumstances specific to EAFs have been identified that would indicate
that EAFs could not use the same technology efficaciously. The
commenter noted that the State of New Jersey estimated the cost to
implement source separation and to install ACI on an existing baghouse
to be less than $1.80 per ton of scrap processed. The commenter claimed
that the cost of compliance is minimal compared to the price of a ton
of steel ($360 to $780/ton) or a ton of scrap ($300/ton) and is not
expected to cause any facility to close. The commenter believes these
cost estimates indicate that add-on controls for mercury for EAFs are
cost effective when the impacts of mercury emissions on human health
and the environment are weighed.
    Several commenters requested that EPA include a mercury emission
limit and monitoring strategy for EAFs rather than relying solely on a
voluntary program. Three commenters said it is important to establish
an emission limit and require testing for mercury because 40 to 50
percent of the mercury comes from non-automobile sources and would not
be removed by the switch removal program. One commenter requested that
EPA establish a mercury emission limit, require appropriate testing to
verify compliance, and require add-on emission controls if the emission
limit is not met. Another commenter suggested that EPA set a mercury
emission standard that uses a tiered approach towards demonstrating
compliance, e.g., sources that emit less than a certain amount of
mercury per year may be allowed to comply with the pollution prevention
standard along with a mercury emissions monitoring requirement. The
commenter continues by stating that more stringent mercury monitoring
should be required for more significant mercury emitters with the
understanding that if a certain level is not reached within a given
time frame (e.g., three years), the source must install mercury
emissions controls and implement associated monitoring. Another
commenter requested a protective backstop for the MACT requirement,
including advanced mercury emissions removal technology and continuous
emission monitoring systems (CEMS) for facilities that do not meet the
mercury pollution prevention standards.
    One commenter stated that two EAFs in Michigan have mercury
emission limits and must perform stack testing. This commenter asks
that if EPA determines that an emission limit is not practical for the
area source standard, EPA should consider a percent reduction standard
similar to what is required in the State of New Jersey (75 percent).
The commenter asks that measures and targets be established and
consequences identified if targets are not achieved. The commenter said
measures and targets include an estimate of mercury-containing devices
collected, inlet and outlet stack testing, and baghouse dust analysis
to confirm reduced mercury inputs and emissions. The commenter stated
that identifying spikes in the mercury concentration of baghouse dust
provides information to conduct additional quality control on scrap
shipments.
    Two commenters claimed that ACI is not a demonstrated technology
for EAFs and that there is a great deal of uncertainty about its
potential effectiveness due in large part to the high variability of
mercury emission levels. The commenters also stated that the use of ACI
would have a negative effect on recycling EAF dust because the mercury
in the dust makes it necessary to landfill the dust instead of
recycling it. The commenters agreed with EPA's pollution prevention
approach and stated that EPA properly explained the technological and
economic feasibility difficulties associated with developing and
enforcing a mercury emission limit for EAFs, including the fact that
continuous monitoring for mercury from EAFs is impractical.
    Response: At proposal, we determined that the MACT floor for

mercury was a pollution prevention approach based on preventing mercury
switches from entering the EAF. We also explained at proposal that
standards requiring pollution prevention were not work practices under
section 112(h), and even assuming for the sake of argument that they
were work practices, it is not feasible to prescribe or enforce an
emissions limit for mercury within the meaning of section 112(h) (72 FR
53817). We received no adverse comments on or challenges to our MACT
floor determination or our conclusion that pollution prevention
standards were not work practices under section 112(h).
    We evaluated ACI as a beyond-the-floor control option for mercury
emissions and rejected the option for several reasons (72 FR 53824). We
also considered the feasibility of establishing an emission limit for
mercury and explained in detail why we chose instead an approach based
on a pollution prevention standard (72 FR 53816). We disagree that the
proposed standard for mercury relies solely on a voluntary program to
keep mercury switches out of the scrap supply. First, there is nothing
voluntary about the obligations of EAF owners or operators under the
rule. They are not in compliance with the rule unless they obtain scrap
from dealers participating in an effective program to remove mercury
switches. Moreover, the standard contains detailed requirements for
preparing and operating a pollution prevention plan that must be
approved by the Administrator, specific criteria that will be used by
the Administrator to review and approve plans, criteria for approval of
switch removal programs to ensure they are effective, and reporting and
recordkeeping requirements (including progress reports). The
Administrator can evaluate the success of an approved switch removal
program based on progress reports that provide the number of mercury
switches removed, the estimated number of vehicles processed, and the
percent of switches removed. Based on this evaluation, the
Administrator may subsequently disapprove a previously approved switch
removal program or a site-specific plan. An example of an existing
switch recovery program that has been documented as successful is the
one implemented by the State of Maine, which was one of the first such
programs and was in place in advance of the NVMSRP. The Maine program
is now fully operational and reported a recovery rate of over 90
percent for mercury switches in 2006.
    The commenters provided no new information or additional facts with
respect to ACI that were not considered and addressed at proposal when
we evaluated it as a beyond-the-floor option (72 FR 53824, 53825) and
concluded that:

    Based on the fact that activated carbon injection is not a
demonstrated mercury control technology for EAF facilities, the
uncertainty in design and performance of the add-on controls and
hence of the actual mercury emission reductions for EAF facilities,
the cost impacts per ton of emission reduction, and the adverse
energy and solid waste impacts, we determined that control beyond
the floor is not warranted for mercury. Therefore, we are proposing
that the removal of mercury switches from the scrap before it is
melted in the EAF represents MACT for mercury for new and existing
EAF facilities.

We emphasize again that ACI was not rejected as a beyond-the-floor
option solely on the basis of cost effectiveness. We concluded that ACI
has not been demonstrated for EAFs and that there is a great deal of
uncertainty in design (e.g., the carbon capacity that would be needed
to treat a highly variable inlet loading of mercury) and potential
performance (i.e., how much mercury would actually be removed), and
hence of the actual mercury emission reductions that might be achieved.
We also considered and discussed the adverse energy and solid waste
impacts.
2. Monitoring for Mercury
    Comment: Several commenters stated that stack monitoring for
mercury emissions from EAFs was needed to assess the effectiveness of
the NVMSRP and other programs. These commenters believe it is important
to have information on the actual emissions, the emissions impact of
pollution prevention measures, and an indication of need for additional
actions that may be needed to further reduce mercury emissions. One
commenter stated that CEMS are essential to establish that the
voluntary switch removal program reduces emissions. Another commenter
requested that the monitoring program include a requirement to test
emissions within 6 months of publication of the final rule to establish
a baseline for each facility.
    One commenter stated that although the proposal states that no
feasible methods of emissions testing exist for any EAF facility (e.g.,
continuous emissions monitoring), there are monitoring technologies
that are adaptable for use by any facility in this industry. The
commenter noted that batch process emissions are tested and monitored
in many industrial sectors, and EPA has established emission standards
for many batch processes without requiring the use of continuous
monitors, including Pesticide Active Ingredient Manufacturing and
Miscellaneous Organic Chemical Manufacturing. The commenter also noted
that EPA has recently promulgated the ``sorbent tube'' method for
sampling stack gases at coal-fired power plants (40 CFR part 75,
appendix K). The commenter believes that because this method of
monitoring mercury is capable of sampling flue gases over any period of
time (hours or even days), there appears to be little impediment to
using this method to sample ``batch'' processes like those at an EAF.
Another commenter also noted that CEMS are available and in use at
other types of mercury-emitting facilities.
    One commenter stated that data from frequent monitoring will be
essential to determine if actual reductions in mercury emissions have
been achieved in order to determine whether the ``sunset'' of the
pollution prevention standard in 2017 should be allowed to occur. One
commenter was concerned that if there are no mercury emission
standards, it may be very difficult for EPA to conduct its residual
risk determination. The commenter wonders how EPA will calculate
residual risk when there has been no attempt to establish a baseline of
mercury emissions, determine the effectiveness of the switch removal
program, or measure emissions after controls are implemented. One
commenter stated that at least one steel mill of which they are aware
has reported higher levels of mercury emissions since starting to
participate in the NVMSRP. The commenter notes that frequent monitoring
is needed to determine whether the program is effective.
    One commenter suggested that EPA require facilities to keep records
of the sources of scrap metal entering the facility in a manner that
allows correlation of scrap sources with elevated mercury emissions and
that these records be available to the Agency and accessible for public
review.
    Response: At proposal, we considered the use of CEMS for mercury
(72 FR 53817):

    We therefore examined the technological and economic feasibility
of continuous monitoring for mercury from these sources. We note
first that mercury CEMS are not demonstrated for EAF, raising a
threshold question of their technical feasibility for all EAF.
Furthermore, most EAF discharge emissions from positive pressure
baghouses without stacks. Continuous mercury monitoring would not be
technically feasible for these EAF (i.e., stackless EAF), even
assuming that mercury CEMS were otherwise

demonstrated for EAF. This is because volumetric flow rate and
concentration would need to be determined by CEMS to measure the
mass emission rate of mercury, and without a stack, it is nearly
impossible to obtain an accurate measurement of volumetric flow rate
or to obtain representative measurements of mercury concentration in
the discharged emissions. Indeed, EPA has previously determined that
the use of continuous opacity monitoring systems (COMS) was not
feasible for positive pressure baghouses without stacks for this
reason.

    The commenters did not address any of these points that we made at
proposal. After further consideration of CEMS, we continue to believe
that CEMS are not feasible for monitoring baghouses without stacks.
    One commenter stated that batch processes such as EAF steelmaking
could be monitored for mercury emissions using the sorbent tube method.
We agree that there are monitoring methods for mercury that can be used
for batch processes; however, the problem with applying CEMS or the
sorbent tube method is because of baghouses without stacks, not because
steelmaking is a batch process. We received no other comments that
addressed, much less refuted, EPA's view of the fundamental
shortcomings of applying mercury CEMS to EAFs without stacks that were
discussed at proposal.
    We discuss in much greater detail in section IV.B.3 of this
preamble the monitoring requirements of the rule and how they are used
to determine the effectiveness of the standard. We have developed
monitoring requirements that are appropriate for the pollution
prevention standard, and since we have concluded it is not necessary or
appropriate to establish a mercury stack emission limit, it is not
appropriate and in most cases it is infeasible to require monitoring
for mercury emissions.
    The lack of a mercury emission standard will not affect our ability
to conduct a residual risk assessment in the future. We will by that
time have historical data on the effectiveness of the MACT standard,
and mass balance approaches as well as innovative methods for sampling
and analysis of sources or ambient air concentrations may provide
additional data.
    We cannot directly address the commenter who claimed that one
plant's mercury emissions had increased since joining the NVMSRP
because the commenter provided no details to substantiate the claim.
However, there is no doubt that removal of mercury switches before
motor vehicle scrap is melted will reduce mercury emissions, whether
the removal takes place under the NVMSRP or under other switch removal
programs.
3. Effectiveness of the Pollution Prevention Standard for Mercury
    Comment: Several commenters stated that requirements to verify the
effectiveness of the NVMSRP and other switch removal programs are
needed and that accountability is not adequately addressed. The
commenters claimed that there are no enforceable mechanisms to ensure
effective participation in or compliance with the switch removal
programs and identified the need for increased recordkeeping and
reporting beyond just participation in a switch removal program. One
commenter requested that EPA include enforceable measures of
accountability that include consequences if the programs do not meet
their goals. Two commenters requested that quantifiable performance
measures be included to verify the effectiveness of mercury reduction
programs. One commenter requested written documentation and audits of
program participation of suppliers, evaluation of switch recovery
rates, and mercury emissions testing and monitoring requirements.
Another commenter suggested incorporating verifiable measurement and
accountability systems and using some of the specific language from the
MOU to make the scrap plans accountable and enforceable. This commenter
also requested that EPA revise the rule to include enforceable scrap
specification requirements and binding contracts with scrap suppliers
(rather than a ``means of communicating'') and require recordkeeping,
reporting, and certification to assure that scrap meets specifications,
as well as contract termination in the event of deviations. This
commenter also states that the switch removal requirements must be more
than a ``goal''; they must be achieved through binding contracts
establishing removal requirements and effective tracking,
recordkeeping, and reporting requirements. Two commenters noted that
since there are no effective performance measures, goals, or
consequences for failure to remove switches, there is no strong
incentive for the NVMSRP to continue after the initial funding has been
expended.
    Two commenters requested achievement of specific switch recovery
percentages as the rule is implemented. They suggest a ramped capture
rate of 30 percent for year one, 50 percent for year two, and 80
percent in year three. The commenters believe it is essential that the
rule require increasing mercury switch capture rates so that a rate of
80 percent or more is achieved within two to three years.
    One commenter stated that two studies of switch removal and mercury
emission reductions do not constitute evidence of a cause and effect
relationship between removal of switches and mercury reductions. The
commenter believes that documentation based on a large number of
studies can determine the cause and effect relationship. The commenter
further states that because no monitoring or testing of mercury
emissions are required by the proposed rule, no evidence of correlation
between amounts of mercury emitted and the quality of scrap can be
demonstrated, and there would be no evidence that the switch removal
program is working to reduce mercury emissions.
    Several commenters noted that the proposed rule is silent on what
happens if the 80 percent switch removal goal is not met. One commenter
believes the rule should include a final date when the goal is to be
met and identify emission standards to be met as an alternative to the
80 percent removal goal.
    One commenter was concerned about using an estimate of the
percentage of mercury switches removed to determine whether an approved
plan should continue to be approved because the estimate of the
percentage of mercury switches removed is highly uncertain and
dependant on many assumptions. The commenter stated that determining
the effectiveness of site-specific mercury switch removal programs by
comparing uncertain statistics with an aggressive removal goal (80
percent) may cause effective programs to have their approval revoked.
    Response: The NVMSRP resulted from a two-year process of
collaboration and negotiation among a diverse group of stakeholders to
create a dedicated nationwide effort to remove mercury-containing
switches from end-of-life vehicles. The stakeholders included EPA,
automakers, steel manufacturers, environmental groups, automobile scrap
recyclers, and State agency representatives. These stakeholders signed
an MOU detailing their respective responsibilities and commitments in
the national switch recovery effort. This effort will result in
substantial reductions in mercury emissions from EAFs by removing the
majority of mercury from metal scrap. In addition, it will have
environmental benefits from reducing mercury emissions from sources
other than EAFs and will reduce mercury releases to media other than
air. We disagree with

the commenter that without testing for mercury emissions, there would
be no evidence that the switch removal program is working to reduce
mercury emissions. Many States have implemented switch removal
programs, and major environmental groups have participated in and
signed agreements supporting the programs, both of which are
indications of the participants' belief in the ability of such programs
to reduce mercury emissions. EPA recounts this history not to show that
the Agency is blindly accepting the negotiated agreement, but that EPA
has examined the agreement anew in light of the requirements of section
112(d) and finds that the program resulting from that agreement meets
the statutory requirements. The success of the program has been
documented by direct measurements of mercury in switches removed, and
as of November 28, 2007, over 843,000 switches with 1,855 pounds of
mercury have been recovered.
    As we stated in detail at proposal, this pollution prevention
approach was determined to be the MACT floor and MACT for reducing
mercury emissions from EAFs. Emissions of mercury result from the
melting of scrap metal that contains mercury components. When these
components are removed prior to charging the scrap to an EAF, the
mercury emissions are prevented.
    Thousands of automobile recyclers have already joined the NVMSRP,
although not all members have yet sent in recovered switches. (As we
discuss in more detail below, there is a lag time as dismantlers
accumulate enough switches to fill a shipping container.) Information
on the program, including scrap suppliers who have joined and the
number of switches they have turned in to date, can be found on the End
of Life Vehicle Solutions Web site (http://www.elvsolutions.org).

    As we discussed at proposal, there are many elements in the NVMSRP
that are designed to measure success and to evaluate its effectiveness.
One year following the effective date of the MOU and each year
thereafter, the parties or their designees and EPA agreed to meet to
review the effectiveness of the program at the State level based upon
recovery and capture rates. The parties to the agreement will use the
results to improve the performance of the program and to explore
implementation of a range of options in that effort. Two and one-half
years from the inception of the program, the parties agreed to meet and
review overall program effectiveness and performance. This review will
include analysis of the number of switches that have been collected and
what factors have contributed to program effectiveness. The
Administrator is one of the parties committed to this review and
assessment of effectiveness, and the Administrator may disapprove the
program as a compliance option (in whole or in part) at any time based
on the assessment of effectiveness.
    A key element of measuring the success of the program is
maintaining a database of participants that includes detailed contact
information; documentation showing when the participant joined the
program (or started submitting mercury switches); records of all
submissions by the participant including date, number of mercury
switches; and confirmation that the participant has submitted mercury
switches as expected. Another important element is aggregated
information to be updated on a quarterly basis, including progress
reports, summaries of the number of program participants by State,
individual program participants, and records of State and national
totals for the number of switches and the amount of mercury recovered.
The program is also estimating the number of motor vehicles recycled.
The NVMSRP will issue reports quarterly during the first year of the
program, every six months in the second and third year of the program,
and annually thereafter. The reports prepared by ELVS will include the
total number of dismantlers or other potential participants identified;
the total number of dismantlers or others contacted; and the total
number of dismantlers or others participating. The annual report will
include the total mercury (in pounds) and number of mercury switches
recovered nationwide; the total pounds of mercury recovered and number
of mercury switches by State; and an estimated national capture rate.
Other information includes the total number and identity of dismantlers
or others dropped due to inactivity or withdrawal from the program.
Mercury switch removal is already underway--more than 1,855 pounds of
mercury from over 843,000 switches have been recovered to date by
program participants. This represents almost 20 percent of our
estimated reduction in mercury emissions of 5 tons per year once the
final rule and NVMSRP are fully implemented.
    The commenters make valid points that the effectiveness of the rule
could be improved by incorporating certain elements that the steel
manufacturers have already agreed to in the MOU. We have revised the
proposed rule to provide more specificity to the EAF owner or operator
responsibilities and to improve the effectiveness of EPA-approved
programs, which may include programs other than the NVMSRP. In
addition, we are including these same requirements in the option for
developing a site-specific plan for switch removal. The rule changes
include:
     EAF owners or operators must develop and maintain onsite a
plan demonstrating the manner through which their facility is
participating in the EPA-approved program. The plan must include
facility-specific implementation elements, corporate-wide policies,
and/or efforts coordinated by a trade association as appropriate for
each facility.
     EAF owners or operators must provide in the plan
documentation of direction to appropriate staff to communicate to
suppliers throughout the scrap supply chain the need for the removal of
mercury switches from end-of-life vehicles. Upon the request of the
permitting authority, the owner or operator must provide examples of
materials that are used for outreach to suppliers, such as letters,
contract language, policies for purchasing agents, and scrap inspection
protocols.
     EAF owners or operators must conduct periodic inspections
or provide other means of corroboration to ensure that suppliers are
aware of the need for and are implementing appropriate steps to
minimize the presence of mercury in scrap from end-of-life vehicles.
    One commenter claimed that because no monitoring or testing for
mercury is required, there is no way to determine if the pollution
prevention approach is reducing mercury emissions. We strongly disagree
because the number of switches or weight of mercury recovered is a
direct measure of the amount of mercury prevented from entering the
environment. As we explained at proposal and in an earlier comment
response, it is not feasible to require continuous emission monitoring
at EAFs with baghouses without stacks, and because of the variability
in mercury emissions from this batch process, periodic manual sampling
is inadequate and provides only a snapshot in time of the emissions.
    Commenters also asked what happens if the 80 percent goal is not
met. Another stated that there is a great deal of uncertainty in
estimating the percent of switches removed and that the use of this
uncertain statistic could cause effective switch removal programs to
have their approval revoked. We addressed these issues at proposal (72
FR 53824) and we note again that the 80 percent minimum recovery rate
is a goal that all parties to the MOU agreed to work toward. We
recognize that 80

percent recovery will not be achieved in the first year or two;
however, the parties to the MOU agreed to aim for collection of at
least four million switches in the first three years of the NVMSRP and
agreed to exceed this amount if possible. We believe that recovery of
four million switches (approximately 4.4 tons of mercury at 1 gram per
switch) in the first three years is a good beginning for working toward
recovery of 80 percent of mercury switches. It is necessary to
acknowledge that there will be an initial delay in many States that
have recently joined the NVMSRP while individual dismantlers accumulate
sufficient switches to make a shipment for recovery. It has been
estimated that it may take from 6 to 12 months to fill a switch
collection bucket (e.g., according to the ELVS Web site at http://www.elvsolutions.org
, switches are typically collected in 3.5 gallon

buckets that can hold up to 450 mercury pellets from switch
assemblies).
    Furthermore, the goal of removing 80 percent of the mercury
switches is not the only criteria used to evaluate the success of a
program. In the proposed rule, we explained that the Administrator can
evaluate the success of an EPA-approved program at any time, identify
States where improvements might be needed, recommend options for
improving the program in a particular State, and if necessary,
disapprove the program as implemented in a State from being used to
demonstrate compliance with the rule based on an assessment of this
performance. The evaluation would be based on progress reports
submitted to the Administrator that provide the number of mercury
switches removed, the estimated number of vehicles processed, and
percent of mercury switches recovered. The Administrator can assess the
information with respect to the program's goal for percent switch
recovery and trends in recovery rates. For example, as the NVMSRP has
ramped up, switch recovery rates have increased from 241,000 switches
in 2006 to 602,000 through the first 10 months of 2007.
    Comment: One commenter noted that in the NVMSRP MOU, funding was
negotiated with the understanding that the EAF rule would provide
strong incentives for switch removal after the incentive fund was
depleted. The commenter states that the proposed rule does not appear
to provide such incentives because there are no performance measures,
goals, or consequences for failing to remove switches. The commenter
further states that to provide accountability and enhance
effectiveness, the rule should stipulate enforceable consequences for
the EAF sector in the event that the pollution prevention approach is
not sufficient to achieve necessary emission reductions. The commenter
suggests that if existing and proposed programs are not successful,
then additional emission control and monitoring requirements and/or
further EAF financial support to the NVMSRP should be required.
    Response: The rule provides a strong incentive for EAF owners or
operators to continue their support for the NVMSRP even after the
incentive fund is depleted. Facilities that do not participate in an
EPA-approved program must develop and operate by site-specific switch
removal plans that may prove to be more burdensome than that of
participating in the NVMSRP. The rule requires that metal scrap
purchased for use in an EAF be procured from a supplier that removes
mercury convenience light switches. If an EAF owner or operator fails
to meet the requirements related to audits of suppliers, reporting,
recordkeeping or any other rule provisions, then the owner or operator
is at risk of being found in violation of the rule. If the facility is
at risk of non-compliance because of the actions of a scrap provider,
then it is in the interest of the owner or operator to take corrective
actions and fix the problem with the scrap provider or to terminate the
scrap purchasing contract because of failure to meet scrap
specifications.
    Comment: One commenter stated that a review of the End of Life
Vehicle Solutions (ELVS) database indicates a number of cases where
individual dismantlers are participants in the NVMSRP, but have yet to
submit collected switches.
    Response: The ELVS Web site, which provides information on the
NVMSRP and its members, includes the date when a particular automobile
or scrap recycler joined the program. As the facility-specific data
show, some recyclers joined the program during its first year of
implementation or even earlier. We do not believe that this should
cause undue concern at this time. Some States had instituted
statutorily mandated programs prior to the establishment of the
national program and, therefore, have been operating for a longer
period of time. Automobile and scrap recyclers in these States have had
more of incentive to participate early on in the program. It is
possible that automobile and scrap recyclers in those States have
already submitted switches to be recycled, some of which may have been
stored in anticipation of a future opportunity to dispose or recycle
them. States that have just joined the national program are clearly in
a ramp-up phase. There will be an initial delay associated with many
new programs while individual dismantlers accumulate sufficient
switches to make a shipment for recovery. It has been estimated that it
may take from 6 to 12 months to fill a switch collection bucket that
typically holds about 400 mercury pellets from switches. The same type
of lag time in shipping was noted when one of the first switch removal
programs in the country was initiated by the State of Maine.
    The data show that during its first full year, the program has made
significant progress, and as we pointed out earlier, over 1,855 pounds
of mercury has been recovered, and this represents almost 20 percent of
our estimated annual reduction in mercury emissions (5 tons per year)
once the rule is fully implemented. The second year of the program will
shift from roll-out to ramping up participation and collection rates.
We should see significant progress toward achieving 80 percent recovery
of switches in the third year of program implementation.
    Comment: One commenter questioned the meaning of ``80 percent'' in
the reduction of mercury switches: Does it refer to the convenience
switches in one automobile, the total weight of mercury in switches in
a vehicle being turned into scrap, the total number of switches and
other sources of mercury in one vehicle, or none of the above.
    Response: ``80 percent'' switch recovery is the goal, and the
percent of switches recovered (the capture rate as defined in the MOU)
is the number of mercury switches removed from end-of-life vehicles
divided by the total mercury switch population in end-of-life vehicles
in a given time period (e.g., each year of the program) times 100.
    Comment: One commenter objected to the credit allowed in
calculating the 80 percent mercury switch removal goal for site-
specific plans. The commenter objected to the credit because it allows
counting of mercury removed from components other than convenience
lighting while the approved plan requires only the removal of mercury
switches from convenience lighting. The commenter stated that the
provision is not consistent with the MOU, which states that only
mercury switches used for convenience lighting will be counted for
purposes of measuring program performance. The commenter argued that
site-specific plans should not be held to a higher standard than the
NVMSRP.

    Response: While it is true that only switches from convenience
lighting apply to the 80 percent minimum goal of the NVMSRP, ELVS
accepts all automobile mercury switches (including those from anti-lock
brake systems (ABS)), and the automobile or scrap recyclers that remove
them are paid the incentive fee of $1.00 per switch. We believe that
this provides an incentive to remove switches from other systems as
well as for convenience lighting. In the requirements for site-specific
plans, other sources of mercury are included in determining the 80
percent goal, such as ABS, security systems, active ride control, and
other applications. Inclusion of these other components in the site-
specific programs provides an incentive for their removal. These
mercury-containing components contribute less mercury (13 percent
compared to 87 percent from convenience light switches), and they are
more difficult to locate, identify, and remove. Mercury-containing
components in ABS will be the components other than convenience light
switches that are most often removed. The removal of these components
requires removing the rear seat and dismantling the ABS. We believe
that if a dismantler chooses to take the time to remove and recover
mercury components from ABS or other components, they should receive
some type of credit for doing so, thus they can include them in their
80 percent minimum recovery goal.
    Comment: One commenter stated that at least two EAF facilities are
exempt from the proposed rule because they are collocated with major
source integrated iron and steel manufacturing facilities. The
commenter noted that if these facilities are not covered by the rule
and choose not to participate in the voluntary NVMSRP, then these
facilities and their suppliers will enjoy at least two competitive
advantages over the 91 facilities that will have to comply with the
rule: They will have lower costs and they will be free of any legal
requirement to address mercury in the scrap that they receive,
generate, and or use as feedstock. The commenter also stated that scrap
from any supplier who chooses to ignore mercury will preferentially
flow to these facilities because there will be no legal or voluntary
obligation for that supply chain to address mercury.
    Response: As we stated at proposal, we plan to list EAFs as a major
source category and develop MACT standards for HAP emissions, including
mercury.
    Comment: One commenter noted that the criteria by which the
Administrator will evaluate semiannual reports are not specified for
the option of a site-specific plan for switch removal. The commenter
went on to state that there is no incentive to meet the requirements
and no penalty for failing to do so. Another commenter is concerned
about the proposed rule's mechanism for approval of alternative switch
recovery programs since States vary in their level of participation in
the NVMSRP and have a variety of statutory and regulatory requirements,
State level MOUs, State incentive funds, and other program components.
The commenter said that to ensure consistency and enforceability, clear
criteria and procedures that ensure any program's effectiveness need to
be specified in the rule. One commenter suggested the Administrator
specifically consider the participation rate of scrap suppliers to an
area steel mill and the collection rate of the largest scrap suppliers
to the facility prior to approving the goals. One of the commenters
noted that as proposed, the rule directs the Administrator to determine
if NVMSRP or alternative programs are adequately recovering switches,
but provides no quantitative requirements.
    Response: As we discussed above, the Administrator will evaluate
the number of mercury switches removed, the estimated number of
vehicles processed, and percent of mercury switches recovered. (See
Sec.  63.10685(b)(1)(v) and (b)(2)(iii)). The Administrator can assess
the information with respect to the program's goal for percent switch
recovery and trends in recovery rates. The criteria are not hard and
fixed because flexibility is needed to consider potentially lower
recovery rates as the program is established and higher rates as the
number of participants peaks. We have described earlier the database
used for documenting and measuring mercury switch recovery. We believe
that this database provides sufficient transparency to ensure that the
program is making measurable program progress and assuring
accountability while at the same time remaining flexible.
    We have provided sufficient detail in the rule for the criteria
used to approve State and other switch removal programs: (1) There is
an outreach program that informs automobile dismantlers of the need for
removal of mercury switches and provides training and guidance on
switch removal, (2) the program has a goal for the removal of at least
80 percent of the mercury switches, and (3) the program sponsor must
submit annual progress reports on the number of switches removed and
the estimated number of motor vehicle bodies processed.
4. Other Sources of Mercury in Scrap
    Comment: Several commenters claimed that a significant amount of
mercury comes from sources other than automobile scrap, including
household and commercial appliances, heating and air conditioning
units, and industrial equipment. Some of these commenters suggested
addressing these sources of mercury by expanding the NVMSRP. One
commenter stated that the mercury from sources other than automobiles
was on the order of 40 to 50 percent of the mercury in scrap. Another
commenter noted that the counteracting effect of increased use of ABS,
more mercury containing electronic devices in cars, and other mercury-
containing items, could conceivably lead to a net increase in the
mercury in scrap processed by steel mills.
    One commenter stated that the rule should address these mercury
sources to scrap metal by incorporation into the NVMSRP or through the
establishment and funding (by mercury product manufacturers and the EAF
sector) of collection programs targeting other products that contribute
to scrap metal. The commenter suggested as an example a possible
requirement that mercury thermostat manufacturers and the EAF sector
could fund an expansion of the Thermostat Recycling Corporation (TRC)
program, a voluntary end-of-life mercury thermostat collection
initiative supported by thermostat manufacturers. The commenter stated
that the TRC is a well-established program but provides no recovery
incentives and has achieved a poor national recovery rate.
    Response: At proposal, we considered the removal of other mercury-
containing components in automobiles, such as switches in ABS, and
determined the option was not justified as a beyond-the floor standard
(72 FR 53824). These sensors are considerably more difficult and time
consuming to remove than are convenience light switches, and they
contribute much less mercury (e.g., 87 percent of the mercury in end-
of-life vehicles comes from convenience light switches). The commenters
provided no data or rationale to support that the removal of other
sources of mercury from the scrap supply was economically and
technologically feasible as a beyond-the-floor option.
    We have no data or documentation that non-automobile sources
contribute 40 to 50 percent of the mercury as the commenters claim, and
we have some indications their estimate is quite high. For example, a
report (available at http://www.epa.gov/region5/air/mercury/appliancereport.html
) prepared for the State of Massachusetts

stated that mercury switches in obsolete appliances accounted for less
than 1 percent of the mercury in the solid waste stream. Most mercury-
containing components in appliances were phased out several years ago,
and any that might remain would contribute very little mercury to the
scrap supply compared to switches in automobiles. In addition, end-of-
life vehicles contribute approximately 7 times more in tons of total
metal to the scrap supply than do obsolete appliances; consequently,
these factors suggest that end-of-life vehicles are the primary
contributor to mercury in the scrap supply. While some ABS contained
mercury sensors as we noted at proposal, these too have been phased out
and were much less common and contained less mercury than convenience
light switches.
5. Role of State Agencies
    Comment: One commenter claimed that State agencies would have
little or no say in approving site-specific pollution prevention plans
and that State and/or local agencies should have more authority over
such approvals. Another commenter noted that part of the approval
process can be delegated to the permitting authority, but there may be
many varying programs and elements of programs that individual
companies or facilities may wish to implement, some of which States do
not have any experience with. The commenter recommends that EPA retain
the responsibility for approving programs and provide clear criteria
for an acceptable program, and use these criteria to approve existing
State programs that are not part of the NVMSRP.
    Two commenters were concerned about the ability of air agencies to
enforce a pollution prevention program that will, in many cases, be
overseen by solid and hazardous waste programs. The commenters noted
that the requirements of the switch removal program must be
incorporated into air permits, and the provisions must be clearly
understood and enforceable by State air agencies in cooperation with
their counterparts in other media programs. The commenters are
concerned that if these provisions are not explicit in the program,
this pollution prevention approach will not be effective.
    One State agency commenter asked that EPA approve the vehicle
mercury switch recovery program mandated by Maine State law as an EPA-
approved program under the rule. The commenter noted that the Maine
program has been the most successful switch recovery program to date,
with a 2006 recovery rate of over 90 percent for all mercury switches--
not just convenience light switches. The commenter further added that
the program meets or exceeds all of the criteria that are identified in
the proposed rule as necessary to effect mercury reductions from EAFs.
    One commenter recommended that EPA grant pre-approval of existing
State programs. The commenter argued that pre-approval of the eight
existing State programs (which account for about 1,900 participants),
would eliminate the need for scrap providers participating in those
programs to obtain EPA approval of their site-specific plans.
    Response: We agree that State agencies should be involved in
reviewing and approving or disapproving site-specific pollution
prevention plans. We expect that the State permitting authority will
have a better understanding of the facilities in their State and their
site-specific operating conditions and any special circumstances. We
are clarifying that the rule delegates to the States the authority to
implement and enforce those requirements in the rule dealing with
contaminants from scrap except for the approval of national, State, or
local agency programs under the option for approved mercury programs.
We believe that such broad programs should require EPA approval and
that it is not appropriate for a State agency to evaluate and approve a
national program or their own program. The rule should be implemented
by State air programs and not by solid and hazardous waste programs.
    We are also identifying the mercury switch recovery program
mandated by State law in Maine as an EPA-approved program because they
submitted documentation that the requirements are equivalent to (or
more stringent than) the approved national program. The program in
Maine represents MACT, and we explained at proposal that MACT is a
national, State, local or facility-specific switch recovery program
that meets specific criteria. No other States made such requests or
submitted information showing equivalency; consequently, we are not
currently identifying other State programs as EPA-approved in the final
rule.
6. Comments on Specific Rule Changes
    Comment: One commenter stated that in Sec.  63.10685(b)(1)(i) and
(ii), the requirement for removal of mercury switches from vehicle
bodies used to make scrap does not seem to recognize the possibility of
inaccessible switches. The commenter suggests replacing ``mercury
switches'' with ``accessible mercury switches.''
    Response: We have defined mercury switch to include only those
switches that are part of a convenience light switch mechanism. Our
information indicates that these switches are accessible and are easily
removed, and it is important to the success of the pollution prevention
program that they be removed. Consequently, we are not adding the
additional requirement that they be ``accessible,'' which would
introduce additional uncertainty because of the judgment that must be
made as to what is accessible.
    Comment: One commenter stated the requirement in Sec.
63.10685(b)(1)(B) for assurances from scrap providers that scrap meets
specifications does not seem to allow for uncertainty or error. The
commenter suggested that the language read ``Provisions for obtaining
assurance from scrap providers that to the best of their knowledge,
motor vehicle scrap provided to the facility meets the scrap
specification''.
    Response: We disagree that the change recommended by the commenter
is necessary because the phrase ``to the best of their knowledge'' is
subjective and likely creates confusion rather than clarity. The EAF
owner or operator must obtain assurance to their satisfaction that the
scrap meets specifications.
    Comment: One commenter said the requirement in Sec.
63.10685(b)(1)(ii)(C) for a means of corroboration to ensure that scrap
providers and dismantlers are implementing appropriate steps to
minimize the presence of mercury switches in motor vehicle scrap should
be replaced with appropriate steps ``to encourage the removal of
accessible mercury switches from motor vehicles to be shredded.''
    Response: We disagree because corroboration to ensure that scrap
providers and dismantlers are implementing appropriate steps to
minimize the presence of mercury switches in motor vehicle scrap is
necessary to ensure the effectiveness and credibility of the pollution
prevention requirements.
    Comment: One commenter expressed concern that the requirements in
Sec.  63.10685(b)(1)(ii)(C), (b)(1)(iii), and (b)(1)(v) may require
scrap providers to divulge confidential business information (CBI) or
to provide sensitive information to EAF operators to comply.
    Response: It is in the interest of both the scrap provider and EAF
operator to provide the information required by the rule and to
establish procedures if necessary to protect confidential information.
The requirements cited by the commenter refer to: (1) Periodic

inspections of scrap providers and dismantlers to ensure appropriate
steps are being taken to remove mercury switches; (2) estimates of the
number of switches removed; and (3) semiannual progress reports that
provide the number of switches or weight of mercury removed, number of
vehicles processed, estimate of the percent of switches removed, and
certification of proper disposal of the switches. This information is
an essential monitoring component of the rule to measure the
effectiveness of a facility's pollution prevention program. The
information on number of vehicles processed can be aggregated for a
facility if it is important not to reveal the number of vehicles
processed by a given scrap provider. We do not see nor did the
commenter identify exactly what component of the requested information
would be CBI; however, if the case can be made that there is CBI
involved, EPA and the permitting authorities have established
procedures for managing and safeguarding CBI and will, of course,
utilize them.
    Comment: One commenter objected to the requirement in Sec.
63.10685(b)(1)(iii), which effectively compels scrap providers to
collect switch removal information from all upstream sources of end-of-
life vehicles. The commenter stated that to impose such burdensome
requirements on the suppliers of the regulated entity far exceeds the
Agency's regulatory authority.
    Response: The burden imposed by the Agency is on the EAF owner or
operator to obtain switch removal information because it is a critical
monitoring component of the rule. The EAF owner or operator in turn
must require this information from scrap providers, and if such
information is not obtained, the EAF owner or operator could be found
in violation of the rule.
    Comment: One commenter objected to the proposed requirement for EPA
approval of the scrap pollution prevention plan and mercury switch
removal plan if prior approval is needed before the plan can be
implemented or a change made. The commenter argued that prior approval
would require all EAF operations to be shut down from the effective
date of the rule until the plan is approved (unless EPA can approve all
plans in the limited time available), that the need to respond to scrap
that is presently available precludes the ability of the facility to
seek prior approval of changes, and that it is unclear that EPA can
provide meaningful review of scrap plans. The commenter suggested
language that would require facilities to keep a copy of the plan
onsite and update the plan to address any deficiency within 90 days of
receiving a written notice from the Administrator. The commenter stated
that recordkeeping and compliance certification requirements should be
added consistent with the requirement.
    Response: We continue to believe that the pollution prevention
plans must be submitted to the permitting authority for review and
approval to ensure they adequately address the requirements in the
rule. We are clarifying in the final rule that the owner or operator
must operate according to the plan as submitted during the review and
approval process, operate according to the approved plan at all times
after approval, and address any deficiency identified by the permitting
authority within 60 days following disapproval of a plan. We are also
clarifying that the owner or operator may request approval to revise
the plan and may operate according to the revised plan unless and until
the revision is disapproved by the permitting authority.
    Comment: One commenter pointed to the provision in Sec.
63.10685(b)(2)(iii) which allows the Administrator to revoke approval
for all or part of the NVMSRP based on review of the reported data. The
commenter asked if the 90-day period between the revocation notice and
the effective date of the revocation provide sufficient time for the
Administrator to approve 100 site-specific plans under Sec.
63.10685(b)(1) and if there was a process in place for seeking
reconsideration of revocation.
    Response: We are clarifying in the final rule that the authority
for the approval of site-specific plans is delegated to the permitting
authority. This is what the proposed rule allowed because this
authority was not among those listed in the rule as not being
delegated. We believe the 90-day period is adequate for the approval
process. The rule has no formal process for seeking reconsideration of
revocation.
    Comment: One commenter recommended that the proposed definition of
``scrap provider'' be revised because the definition includes brokers
who have no oversight over scrap preparation and delivery. According to
the commenter, a revised definition should allow brokers to be
considered ``scrap providers'' as a contractual matter. The commenter
suggested that EPA define ``scrap provider'' to mean ``the final
preparer of scrap delivered to a steel mill, or a broker when a
brokered transaction specifies that the broker provide information to
the steel mill from the scrap processors participating in the brokered
transaction.''
    Response: We disagree because the definition as proposed allows a
broker to be considered a scrap provider. The EAF owner or operator
must ensure that the broker receives scrap only from suppliers
participating in an EPA-approved program, and we have clarified this in
the final rule. For the site-specific option, the EAF owner or operator
must obtain assurance from all scrap providers that mercury switches
have been removed and provide an accounting of the number of switches
removed and vehicles processed for all scrap providers, along with all
of the other requirements in the site-specific plan.
    Comment: One commenter recommended that the proposed definition of
``motor vehicle scrap'' be revised to refer to shredded scrap that
contains shredded end-of-life vehicles. The commenter explained that
shredded scrap typically includes shredded end-of-life or obsolete
appliances as well as other materials. Alternatively, the commenter
suggested replacing the definition of ``motor vehicle scrap'' with a
definition of ``shredded scrap'', which would contain some fraction of
shredded end-of-life vehicles.
    Response: The definition of motor vehicle scrap is specific to
vehicles processed in a shredder. We do not see a need to revise the
definitions as suggested by the commenter.
    Comment: One commenter recommended that EPA revise Sec.
63.10685(b) to clarify that scrap that does not contain motor vehicle
scrap does not need to meet one of the three compliance options for
mercury. The commenter suggested using the term ``motor vehicle scrap
provider'' instead of ``scrap provider.'' Otherwise, the commenter
asked that EPA add a fourth compliance option under Sec.  63.19685(b)
for scrap that contains no motor vehicle scrap and require
certification to that effect for the scrap provider, contract for
scrap, or scrap shipment. The commenter stated that recordkeeping and
compliance certification requirements should be added consistent with
the requirement.
    Response: We have clarified in the final rule that the mercury
switch removal provisions and three compliance options apply to scrap
that contains motor vehicle scrap. In addition, we have added a new
provision to the rule for scrap that does not contain motor vehicle
scrap to require a certification and documentation through records that
the scrap does not contain motor vehicle scrap.

    Comment: One commenter objected to the requirement for facilities
to submit a semiannual report of all scrap shipments received under the
site-specific compliance option. The commenter recommended that EPA
review scrap management records to determine compliance. The commenter
provided recommended language for a semiannual report containing a
certification of compliance, along with records of how each motor
vehicle scrap provider, contract, or shipment complies with the rule.
    Response: We continue to believe that an accounting of mercury
switches and estimated number of vehicles processed must be submitted
in semiannual reports because it is an important monitoring provision
that is necessary to determine if the site-specific plan is being
implemented and to assess its effectiveness. However, we are clarifying
that the information can be submitted in aggregate form and does not
have to be submitted for each shipment, which could include hundreds of
records for some large facilities. However, the owner or operator must
maintain records for each motor vehicle scrap provider, contract, or
shipment (as the commenter suggests) sufficient to demonstrate
compliance with the rule and must make these records available upon the
request of the permitting authority.
    Comment: One commenter stated that the scrap specification
requirements for mercury switches make unrealistic and unenforceable
demands of metal purchasers. The commenter notes that steel mill staff
are required to assure that the scrap is clean by visiting suppliers
(who may be hundreds of miles away) by doing visual inspection of their
facilities and treated scrap. The commenter further notes that
suppliers change frequently, they buy from middlemen, and they ship
scrap from combined sources. The commenter believes this shifts
responsibility of ``ensuring'' quality of scrap to the steelmakers and
makes no requirements of the steelmakers themselves, but asks them to
inspect members of an independent industry at large cost in staffing
and travel when it is unlikely to be effective.
    Response: The rule applies to owners or operators of EAF
steelmaking facilities, and it is the responsibility of these
facilities to comply with the rule. Among other things, the final rule
requires that EAF owners or operators conduct periodic inspections or
provide other means of corroboration to ensure that suppliers are aware
of the need for and are implementing appropriate steps to minimize the
presence of mercury in scrap from end-of-life vehicles. Periodic audits
or inspections of scrap suppliers or dismantlers are one means of
complying with this requirement. Although there are certainly other
means to comply with this requirement, we note that periodic audits or
inspections of scrap suppliers or dismantlers are consistent with the
agreement reached in the NVMSRP among many stakeholders, including the
scrap providers. Some EAF facilities already perform inspections of
suppliers, and EAF facilities have historical experience in ensuring
the quality of the scrap they receive because of safety concerns (e.g.,
radiation or explosion hazards) and the direct effect of scrap quality
on steel quality.
    The corroboration requirement in the final rule, as described
above, is an important element of assuring program effectiveness and
achieving the pollution prevention objective of section 112(d)(2)(A).
EPA is thus adopting the requirement as an exercise of independent
judgment, not simply because it is in the agreement.

C. Proposed GACT Standard for Metal HAP Other Than Mercury

1. Opacity Limit for the Melt Shop
    Comment: Two commenters stated that a subcategory for older non-
NSPS facilities is justified by the fact that the non-NSPS status of
these facilities has a direct bearing on the technical and economic
feasibility of retrofitting to achieve the six percent opacity standard
during charging and tapping. According to the commenters, these
facilities, by virtue of their design, are of a different class and
type from the NSPS facilities. The commenters concluded that the
alternative standard described in the proposal preamble with an opacity
standard of six percent and an allowance of 20 percent opacity during
charging and tapping was appropriate for these non-NSPS facilities. The
commenters provided a discussion of EPA's authority to establish such a
subcategory and information they claimed indicated that EPA's estimates
of the costs to retrofit the non-NSPS facilities was understated. The
commenters also argued that applying the NSPS to the non-NSPS
facilities was not justified because the proposed standard was not as
cost effective as EPA had estimated, and in addition, the cost
effectiveness for HAP was much higher than what EPA had determined to
be unacceptable in other rulemakings.
    The commenters noted that CAA section 112 grants the EPA authority
to categorize and subcategorize based on class, type, and size of
source. According to the commenters, the Administrator ``may
distinguish among classes, types, and sizes of sources within a
category or subcategory'' under section 112(d)(l), and similarly,
section 112(c) authorizes EPA to establish categories and subcategories
of major and area sources in a manner that is consistent with the list
of categories and subcategories under Section 111. The commenters also
indicated that section 111(b)(2) provides EPA with authority to
``distinguish among classes, types, and sizes within categories,'' and
section 112 further provides that ``(n)othing in the preceding sentence
(referring to the desire to maintain consistency between source
categories under Sections 111 and 112) limits the Administrator's
authority to establish subcategories under this section, as
appropriate.''
    The commenters pointed out that in the preamble to the proposed
rule (72 FR 53826), EPA stated that it may be appropriate to consider a
separate subcategory of facilities based on the technical and economic
feasibility of retrofitting pre-1983 (non-NSPS) facilities. According
to the commenters, such subcategorization is not new and falls within
the Agency's discretion to create subcategories. The commenters
continued by stating that while age is not specifically identified as a
criterion for subcategorizing under Section 112, age may have a direct
correlation to the design of a facility, the production and air
pollution control equipment used by the facility, and other factors
that allow for ``class, type, or size'' subcategory distinctions within
an industry. The commenters stated that courts have confirmed this
relationship between age and allowable subcategorization factors where
there is a meaningful, discernable relationship between the age of the
facility and the basis for subcategorization (e.g., the cost or
feasibility of retrofitting or the effectiveness of anti-pollution
devices on emissions) and cited American Iron and Steel Inst. v. EPA,
568 F.2d 244, 298 (3rd Cir. 1977) (``AISI'') (also cited by EPA in the
preamble to the proposed rule). The commenters claimed that the courts
have recognized that age may play a direct role in a facility's ability
to install anti-pollution devices (i.e., retrofitting costs) and on the
effectiveness of reducing emissions (citing American Iron and Steel
Inst. v. EPA, 526 F.2d 1046, 1048 (3rd Cir. 1975) (also cited by EPA),
recognizing the ``special problem'' in requiring a one-size-fits-all
anti-pollution device in industries where there is considerable
variation in the age of facilities).

    The commenters stated that they are not seeking subcategorization
based strictly on the age of the facility, but rather to recognize that
non-NSPS facilities (those that were constructed prior to 1983 and not
subsequently modified) face design and equipment challenges in
achieving the opacity standards that more modern facilities are
engineered to meet. According to the commenters, non-NSPS facilities
are a different ``class'' or ``type'' of facility from NSPS facilities,
and consistent with the cases cited, the non-NSPS status of certain EAF
steelmaking facilities bears directly on the technical and economic
feasibility of reducing fugitive emissions and warrants a separate
subcategory. The commenters claimed that non-NSPS facilities vary
substantially in design and compliance requirements, but in almost all
cases the buildings are not fully closed and the furnace design and
emission capture systems are such that modifications are required to
achieve the NSPS standards. According to the commenters, these design
and equipment differences are reasonable bases on which to justify a
non-NSPS subcategory.
    The commenters provided information concerning the modifications
and retrofitting that would be required at the non-NSPS facilities to
meet the six percent opacity limit. In addition, the commenters
submitted estimates of the costs and identified additional non-NSPS
facilities not previously included in EPA's analysis of impacts. The
commenters noted that there are 11 non-NSPS facilities that cannot
currently meet the NSPS opacity limit (rather than the six identified
at proposal) and estimated that the capital cost to meet the standard
as $85 to $99 million instead of EPA's estimate at proposal of $29
million. Among the plants identified by the commenter was one plant
that the commenter stated could meet the opacity limit 99 percent of
the time, but the commenter claimed that costs would be incurred to
address trivial and infrequent excursions to ensure the facility could
meet the limit 100 percent of the time.
    The commenters stated that applying the NSPS opacity limit to the
non-NSPS plants was less cost effective than EPA's estimates at
proposal because costs were underestimated and emission reductions were
overestimated. The commenters cited the higher capital costs described
above and also stated that other costs, such as lost revenue due to
downtime to perform upgrades and annual operating costs (including
increased power consumption and maintenance labor) had not been
included in EPA's estimates. In addition, the commenters claimed that
EPA's estimates of emission reductions were overstated because some of
the dust assumed to be collected by the improved capture system would
have settled within the melt shop rather than being emitted as fugitive
emissions through the melt shop roof. The commenter also stated that
the improved capture efficiency estimated for three facilities (from 85
percent to 95 percent) assumed an open roof monitor; however the
improvement in capture is more likely from 90 percent to 95 percent
because these facilities do not have open roofs. The commenter believes
that the emission reductions for these facilities is about half of that
estimated by EPA.
    The commenter also stated that EPA's cost effectiveness estimate of
$160,000/ton of HAP was higher than what had been accepted in other
rulemakings: $6,800/ton chlorine rejected and $1,100/ton chlorine
accepted (hazardous waste combustors); $45,000/ton hydrogen chloride
rejected (industrial boilers); $90,000/ton acrylonitrile rejected
(acrylic and modacrylic fibers); $724 to $9,000/ton of organic HAP
accepted (halogenated solvent cleaning); and $300 to $10,000/ton of
organic HAP accepted (gasoline distribution). The commenters stated
that it was inappropriate to compare the particulate matter (PM) cost
effectiveness of the proposed rule with that of mobile source programs
because those programs were geared towards addressing PM while the area
source rule is focused on HAP emissions. The commenters believe the
proper comparison is with respect to the cost effectiveness of HAP
emission reductions as described above.
    Response: We proposed a standard of six percent opacity for the EAF
melt shop for all plants in the source category (i.e., no
subcategories) as GACT because about 90 percent of the existing
facilities are subject to and achieve this level of control, and the
technology used by these facilities is generally available. We
requested comment on an alternative based on a subcategory for older
facilities and an alternative standard of six percent opacity except
for 20 percent opacity during charging and tapping (72 FR 53826). We
also requested supporting documentation in sufficient detail to allow
characterization and representativeness of the data.
    The commenters claimed that there are meaningful differences
between plants that are subject to the NSPS and those that are not
subject to it, although they correctly acknowledged that age can only
be a proxy for some process difference (i.e., age in and of itself is
not a basis for subcategorization). However, we are not convinced that
there is any basis for subcategorization because the non-NSPS plants
have no physical differences that are impediments to the installation
of the necessary and widely-demonstrated capture and control systems
for fugitive emissions. Moreover, as we discuss in detail below, even
if (against our view) it is appropriate to subcategorize, GACT would be
the same for NSPS plants and non-NSPS plants.
    We stated at proposal that GACT for fugitive emissions from the
melt shop includes hoods to capture the fugitive emissions escaping
during charging, melting, and tapping, and ducting the emissions to a
baghouse. All EAF facilities have capture and control systems for
emissions from charging, melting, and tapping, and this technology has
been applied to many other industries (e.g., iron and steel foundries,
integrated iron and steel plants). However, most EAF steelmaking
facilities have better capture systems for charging and tapping
emissions than do some of the affected non-NSPS plants. We have
identified no technical reason that the capture and control systems
demonstrated by plants subject to the NSPS to achieve an opacity limit
of six percent cannot be applied industry wide. The technology for
upgrading the capture and control of emissions from charging and
tapping is generally available and includes new or redesigned capture
hoods, higher evacuation rates, and in some cases, additional baghouse
capacity, all of which have been accounted for in our cost estimates.
    Not only is this type of technology routinely utilized, but there
is no technical impediment to its applicability in this source
category. The commenters stated that ``buildings are not fully closed
and the furnace design and emission capture systems are such that
modifications are required to achieve the NSPS standards'', but this
merely indicates that some type of upgrade would be required for plants
to meet the standards, not that these older plants cannot be physically
enclosed so that they were able to achieve the NSPS opacity limit.
Moreover, these sources' fugitive emissions consist of the same HAP in
the same concentration as all of the NSPS plants. (See the HAP
concentration data presented in ``Electric Arc Furnace Impacts
Analysis'', Docket Item 0074 in Docket Number EPA-HQ-OAR-2004-0083.) In
addition, a number of pre-NSPS EAFs have in fact upgraded to meet a 6
percent opacity limit. Not only are these

sources' fugitive emissions comparable to those of the remaining non-
upgraded facilities, but their costs are comparable as well, as are the
cost effectiveness of the emission reductions. (See the results of the
cost survey of plants that have previously upgraded as discussed in
``Electric Arc Furnace Impacts Analysis'', Docket Item 0074 in Docket
Number EPA-HQ-OAR-2004-0083.)
    EPA therefore does not believe that the remaining non-NSPS plants
are of a different class or type than the universe of sources meeting
the 6 percent opacity standard. They produce the same product by the
same means, are capable of controlling opacity by the same means at the
same effectiveness, appear to be identically situated to non-NSPS EAFs
which meet the 6 percent standard, and (as discussed below) are capable
of meeting that standard at reasonable cost and cost effectiveness.
    Moreover, even if (against our views) subcategorization would be
appropriate, EPA believes GACT for the subcategory would be the NSPS
standard. The standard reflects readily available technology (as just
discussed) at reasonable cost and cost effectiveness. EPA carefully
reviewed the detailed cost information submitted by the commenters for
upgrading non-NSPS plants to meet the proposed opacity limit. The cost
estimates are higher than those we developed at proposal reflecting
that there are certain unique or site-specific factors for several
plants that would result in costs higher than those we generated that
did not include site-specific cost elements. We have accordingly
revised the cost analysis from proposal and used the commenters'
estimates of capital cost for most of the non-NSPS plants (using the
average for those cases where a range of costs were provided for a
given plant). We have also incorporated the commenters' estimates on
the increased operating costs when they provided such estimates (e.g.,
increased consumption of electricity and labor for operation and
maintenance). When estimates of operating cost were not provided, we
developed estimates of operating costs for electricity, labor for
operation and maintenance, and dust disposal based on the size of the
upgraded system.
    We did not accept the commenters' full estimate of cost for one
non-NSPS plant. The commenters provided a capital cost estimate of
$30.5 million to replace the entire existing melt shop at this plant,
including a new and larger EAF to replace two small ones, new EAF
transformers, new cranes and other ancillary equipment, and other
modifications. We disagree with this cost estimate because it is based
on the cost for a new facility, including new process equipment, in
addition to new capture and control equipment for emissions. For our
revised impacts analysis, we estimated the cost for emission capture
and control equipment only and used a capital cost of $16.3 million
that the commenter attributed to a new baghouse and ancillary equipment
associated with emission control; however, we note that it could be
more economical to upgrade the existing baghouses, and the cost
estimate of $16 million was based on an EAF steelmaking facility that
was several times larger than this plant, making even this estimate
highly conservative. (The estimated impacts, including the revised cost
estimates, are documented in ``Revised Analysis of Impacts'' in the
rulemaking docket.)
    We also reviewed the available information on costs associated with
lost production when the upgrades are installed. Prior to proposal, we
sent a detailed cost survey to several plants that had made substantial
upgrades to improve the capture and control of fugitive emissions. One
plant stated that the installation was performed as much as possible
over a 1 year period during normal operations, the final tie-in of the
control system to the EAF was made during a regularly-scheduled
production outage of two weeks, and sufficient inventory was maintained
to supply customers. A second plant also said that most of the
installation was completed during normal operations, final tie-in was
during two different scheduled outages of two weeks, and sufficient
inventory was maintained to supply customers. A third plant replied
that they could not provide a reliable estimate of any costs that might
have been due to lost production during the installation. Based on the
actual experience of plants that have made upgrades, we believe that
significant costs due to lost production can be avoided by installation
as much as possible during normal operation, final tie-in during a
regularly-scheduled outage for maintenance, and building sufficient
inventory to supply customers during the short period of production
shutdown.
    The commenter identified one plant that could meet the opacity
limit 99 percent of the time, but claimed that costs would be incurred
to address trivial and infrequent excursions to ensure the facility
could meet the limit 100 percent of the time. The commenter did not
include any cost estimates for this plant in their estimates of total
costs for meeting the opacity limit and only provided a qualitative
discussion and capital cost estimates for the wholesale replacement of
EAFs. The estimates provided by the commenter were for the capital cost
of replacing EAFs, including in one case purchasing a used 20-ton EAF
to replace existing furnaces with a capital cost of $4.2 million and in
another case installing a new 40-ton furnace at a cost of over $70
million. We requested several times but did not receive any opacity
data showing whether this plant could or could not meet the opacity
limit, and we do not think it appropriate to assume a new and larger
EAF would need to be installed at a cost of many millions of dollars to
address trivial and infrequent excursions even if they had occurred.
Excursions that occur one percent of the time or less could well be
outliers and a result of an equipment failure that is not preventable
(i.e., a malfunction). Moreover, a rare excursion could be caused by a
preventable equipment failure or operating error, in which case the
event might be considered a deviation. If the excursion occurs because
of a particular sequence or overlapping of cycles since this facility
has multiple small furnaces, then careful attention to scheduling of
operations might be a solution. In any event, the commenter and
facility did not provide sufficient information, a credible cost
estimate, or any opacity data; consequently, we do not have sufficient
information to conclude that the facility would incur significant costs
for upgrading.
    Our revised estimate of the cost for non-NSPS to meet the NSPS
opacity limit is a capital cost of $69 million and a total annualized
cost of $13 million per year. These costs average less than one percent
of sales, will not affect the profit margin significantly, and will not
cause plant closures. Consequently, the technology to meet the NSPS is
economically feasible, which supports our view that the emission
control technology is ``generally available.''
    We also re-examined our estimates of the emission reductions
attributable to revised standards (the key input, along with cost, to
assessing cost effectiveness). The commenters stated that for three
plants, the reductions should be based on improving capture efficiency
from 90 percent to 95 percent rather than the improvement of 85 percent
to 95 percent that was used in our impacts analysis. We have
acknowledged there is a great deal of uncertainty in this estimate;
consequently, we have developed estimates of HAP metal (and PM, their
surrogate) emission reductions using both ranges for improved capture
efficiency. For plants that provided

evacuation rates, we estimated the emission reductions from the design
evacuation rate and a PM concentration of 0.01 gr/dscf in the captured
emissions. The commenters stated that they believed this estimate is
high because some of the dust that is captured by the upgraded system
would have settled out in the melt shop and not be emitted as fugitive
emissions. However, the estimate of 0.01 gr/dscf is an unbiased average
estimate that we believe is roughly accurate within a factor of two. We
had information from one plant that indicated the concentration of
fugitive emissions before control was 0.02 gr/dscf (a factor of two
higher than our estimate). The lower end is bounded by 0.005 gr/dscf (a
factor of two lower) because at that concentration a baghouse would not
be needed to meet the PM emission limit of 0.0052 gr/dscf.
Consequently, we did not revise this aspect of our estimates of
emission reductions.
    After making the changes to the estimates of costs, emissions, and
emission reductions described above, the cost effectiveness is $15,000/
ton for PM and $250,000/ton for HAP metals. As we stated at proposal,
we believe the cost effectiveness for PM is well within the range of
acceptability and is in line with the cost effectiveness for PM for
other rules (72 FR 53826). We further noted at proposal that the cost
effectiveness for PM is within the range we have accepted previously
for control of PM emitted by mobile sources, and we continue to believe
that these mobile source rules provide a reasonable benchmark for PM
cost effectiveness.
    We also disagree with the commenters' assertions that the cost
effectiveness for metal HAP is unacceptable. The final GACT standard
for EAFs will provide reductions of 52 tons per year of compounds of
chromium, lead, manganese, and nickel, which are all urban HAP for
which this category was listed pursuant to sections 112(c)(3) and
112(k). EPA listed these metal compounds as urban HAP because of their
significant adverse health effects. A large portion of the reductions
of these urban HAP will occur in the urban areas that EPA identified in
the Integrated Urban Air Toxics Strategy. See CAA 112(k)(3)(C).
    The primary HAP emitted from melting iron and steel scrap are
manganese and lead with smaller levels of chromium and nickel. These
metals (especially manganese) are inherent components of the scrap that
is melted, and at the high temperatures used in the EAFs, the HAP
metals are unavoidably vaporized and emitted. These metal HAP are
present in particulate matter emissions from the EAF, and because they
are in particulate form, they can be captured and removed from the gas
stream at high efficiency by control devices designed to capture
particulate matter (such as baghouses). The nature of these emissions
and the HAP composition are unique to iron and steel melting furnaces
such as EAFs and are quite different from the emissions from other
processes and operations that do not involve melting metal scrap at
high temperatures.
    There are adverse health effects associated with the metal HAP
emitted from EAFs. Hexavalent chromium and certain forms of nickel are
known human carcinogens. Lead is toxic at low concentrations, and
children are particularly sensitive to the chronic effects of lead.
Chronic exposure to manganese affects the central nervous system.
Additional details on the health and environmental effects of these HAP
can be found at http://www.epa.gov/ttn/atw/hlthef/hapindex.html. In

addition, approximately 50 percent of the PM emissions are in the form
of fine particulate matter, and EPA studies have found that fine
particles continue to be a significant source of health risks in many
urban areas.
    Accordingly, even considered as a separate subcategory, EPA
believes that GACT for these sources would be the current NSPS
standard, due to technical feasibility at reasonable cost and cost
effectiveness.
    Furthermore, we have incorporated into this final rule certain
provisions of the General Provisions (40 CFR part 63, subpart A) that
afford sources additional flexibility. For example, existing sources
can request an additional year to comply with the standard if they can
demonstrate to the permitting authority that such additional time is
needed to install controls. See 40 CFR 63.6(i)(4)(1)(A). In addition,
EPA's regulations implementing CAA section 112(l) provide further
flexibility. Specifically, 40 CFR part 63, subpart E provides that a
State may seek approval of permit terms and conditions that differ from
those specified in a section 112 rule, if the State can demonstrate
that the terms and conditions of the permit are equivalent to the
requirements of this rule. The procedures for seeking approval of such
a permit are set forth in detail in 40 CFR 63.94.
    Comment: One commenter noted the proposal requires that a capture
system must collect ``gases and fumes,'' while a capture system is
defined as collecting ``particulate matter.'' The commenter believes
that neither of these terms is correct; the capture system should be
described as capturing ``emissions'' generated from the EAF and other
metallurgy operations.
    Response: We agree and have made this revision.
    Comment: One commenter noted that the proposed rule identifies
opacity standards for melt shops exclusive to EAF or ladle metallurgy
operations (LMO) and no other sources. The commenter requested that the
term ``melt shop'' be defined so that the applicability of the opacity
standard is accurately applied. The commenter further claimed that the
current requirement restricting the opacity standard to the operation
of an EAF or LMO is unenforceable. The commenter said that based on
States' experiences, many different operations occur within a melt
shop, and without having at least one other person positioned within
the building viewing all operations within, it would be impossible to
know whether emissions observed outside of a building were associated
with all the activities of a melt shop or solely the EAF or LMO. The
commenter suggested removing the exclusivity of the opacity standard to
EAF and LMO.
    Response: We disagree. The procedures for conducting opacity
observations are the same as those in the NSPS, and these procedures
have been used successfully for over 20 years to enforce the NSPS. In
addition, our opacity data and GACT determination were based on the
procedures for conducting opacity observations as required by the NSPS.
2. Ladle Metallurgy Operations