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ENVIRONMENTAL PROTECTION AGENCY

Veterans Affairs Department

CFR Citation: 40 CFR Part 63

RIN ID: RIN 2060-AM71

EPA ID: [EPA-HQ-OAR-2004-0083; FRL-8509-5]

NOTICE: Part III

DOCUMENT ACTION: Final rule.

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

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.

DOCUMENT 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.

SUMMARY: Environmental Protection Agency,

SUPPLEMENTAL 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 LowIncome 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:
Examples of regulated Category NAICS code\1\ entities Industry....................... 331111 Steel mills with electric arc furnace steelmaking facilities that are area sources. \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
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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. 011537, (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. \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.

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 2,3,7,8tetrachloridibenzopdioxin. 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 EPAapproved 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
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provider that mercury switches must be removed from motor vehicle bodies at an efficiency comparable to that of the EPAapproved 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 EPAapproved program. Facilities choosing to use an EPAapproved 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 EPAapproved 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. \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.

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 EPAapproved mercury switch removal program have to prepare and operate pursuant to and in conformance with a sitespecific 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 sitespecific plan must establish a goal for the removal of at least 80 percent of the mercury switches. All documented and verifiable mercurycontaining 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, nonspecialty 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
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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), leadcontaining 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 leadcontaining 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 6month monitoring report, deviation reports, and annual compliance certifications. The part 64 reporting requirements specify that the 6month 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
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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 sitespecific plan for mercury or any of the mercury compliance options.

As noted above, facilities subject to the sitespecific 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 RCRApermitted 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 EPAapproved 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 sitespecific 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 EPAapproved program. We also evaluated more stringent beyondthefloor 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 endoflife 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 EPAapproved program for switch removal, operating pursuant to an EPAapproved sitespecific plan (of equal effectiveness to an EPAapproved program) that ensured scrap providers had removed mercury switches, or by not melting scrap from endoflife vehicles. We further proposed that the National Vehicle Mercury Switch Recovery Program (NVMSRP) met the requirements of an EPAapproved program. However, we received several comments questioning how the effectiveness of an EPAapproved 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 1year review showed reasonable progress, with recycling programs now available in every State. The national program was slightly ahead of the schedule projected for startup. 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
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compliance option, leaving EAF owners or operators obliged to develop sitespecific programs for EPA approval in order to meet the requirements of this rule. Under the sitespecific 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 beyondthefloor 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 Ruleall rules where a technology based standard for mercury is based upon performance of ACI. The commenter notes that without further analysis to determine the nonair 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 coalfired 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 addon 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 nonautomobile 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 addon 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 mercurycontaining 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 [[Page 74094]]
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 beyondthefloor 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 sitespecific 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 beyondthefloor 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 addon 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 beyondthefloor 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 coalfired 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 mercuryemitting 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
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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 sitespecific 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 twoyear process of collaboration and negotiation among a diverse group of stakeholders to create a dedicated nationwide effort to remove mercurycontaining switches from endoflife 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
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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 onehalf 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 underwaymore 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 EPAapproved programs, which may include programs other than the NVMSRP. In addition, we are including these same requirements in the option for developing a sitespecific 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 EPAapproved program. The plan must include facilityspecific implementation elements, corporatewide 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 endoflife 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 endoflife 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
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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 mulrine.phil@epa.gov.