30366 Federal Register / Vol. 74, No. 121 / Thursday, June 25, 2009 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2008–0236; FRL–8920–9] 

RIN 2060–AO93 

Revision of Source Category List for 

Standards Under Section 112(k) of the 

Clean Air Act; National Emission 

Standards for Hazardous Air 

Pollutants: Area Source Standards for 

Aluminum, Copper, and Other 

Nonferrous Foundries 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is revising the area 

source category list by changing the 

name of the ‘‘Secondary Aluminum 

Production’’ category to ‘‘Aluminum 

Foundries’’ and the ‘‘Nonferrous 

Foundries, not elsewhere classified 

(nec)’’ category to ‘‘Other Nonferrous 

Foundries.’’ At the same time, EPA is 

issuing final national emission 

standards for the Aluminum Foundries, 

Copper Foundries, and Other 

Nonferrous Foundries area source 

categories. These final emission 

standards for new and existing sources 

reflect EPA’s determination regarding 

the generally available control 

technologies or management practices 

(GACT) for each of the three area source 

categories. 

DATES: The final rule is effective on June 

25, 2009. The incorporation by reference 

of certain publications listed in this rule 

is effective as of June 25, 2009. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2008–0236. All 

documents in the docket are listed in 

the Federal Docket Management System 

index at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available 

(e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute). 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the EPA Docket Center, Public 

Reading Room, EPA West, Room 3334, 

1301 Constitution Ave., NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744, and the telephone number for 

the Air Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

questions about the final standards for 

aluminum foundries, contact Mr. David 

Cole, Office of Air Quality Planning and 

Standards, Outreach and Information 

Division, Regulatory Development and 

Policy Analysis Group (C404–05), 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

Telephone Number: (919) 541–5565; 

Fax Number: (919) 541–0242; E-mail 

address: Cole.David@epa.gov. For 

questions about the final standards for 

copper foundries and other nonferrous 

foundries, contact Mr. Gary Blais, Office 

of Air Quality Planning and Standards, 

Outreach and Information Division, 

Regulatory Development and Policy 

Analysis Group (C404–05), 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

Telephone Number: (919) 541–3223; 

Fax Number: (919) 541–0242; E-mail 

address: Blais.Gary@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Outline. The information in this 

preamble is organized as follows: 

I. General Information 

A. Does This Action Apply to Me? 

B. Where Can I Get a Copy of This 

Document? 

C. Judicial Review 

II. Background Information for This Final 

Rule 

III. Revision to the Source Category List 

IV. Summary of Changes Since Proposal 

V. Summary of Final Standards 

A. Is My Foundry Subject to This Subpart? 

B. Do These Standards Apply to My 

Source? 

C. When Must I Comply With These 

Standards? 

D. What Are the Final Standards? 

E. What Are the Testing and Monitoring 

Requirements? 

F. What Are the Notification, 

Recordkeeping, and Reporting 

Requirements? 

G. What Are the Title V Permit 

Requirements? 

VI. Summary of Comments and Responses 

A. GACT Issues 

B. The Source Category Designation 

C. Subcategorization and Applicability 

Issues 

D. Management Practices 

E. Definitions 

F. Monitoring, Reporting and 

Recordkeeping 

G. Testing Requirements 

H. Exemption From Title V Permitting 

Requirements 

I. Miscellaneous 

VII. Impacts of the Final Standards 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. General Information 

A. Does This Action Apply to Me? 

The regulated categories and entities 

potentially affected by the final rule 

include: 

Category NAICS code 1 Examples of regulated entities 

Industry: 

Aluminum Foundries ............... 331524 Area source facilities that pour molten aluminum into molds to manufacture aluminum 

castings (excluding die casting). 

Copper Foundries ................... 331525 Area source facilities that pour molten copper and copper-based alloys (e.g., brass, 

bronze) into molds to manufacture copper and copper-based alloy castings (excluding 

die casting). 

Other Nonferrous Foundries ... 331528 Area source facilities that pour molten nonferrous metals (except aluminum and copper) 

into molds to manufacture nonferrous castings (excluding die casting). Establishments 

in this industry purchase nonferrous metals, such as nickel, zinc, and magnesium that 

are made in other establishments. 

1 North American Industry Classification System. 


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1We did not receive any adverse comments on 

the proposed revisions to the list. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this action. To determine 

whether your facility is regulated by this 

action, you should examine the 

applicability criteria in 40 CFR 63.11544 

of subpart ZZZZZZ (National Emission 

Standards for Hazardous Air Pollutants: 

Area Source Standards for Aluminum, 

Copper, and Other Nonferrous 

Foundries). If you have any questions 

regarding the applicability of this action 

to a particular entity, consult either the 

air permit authority for the entity or 

your EPA Regional representative, as 

listed in 40 CFR 63.13 of subpart A 

(General Provisions). 

B. Where Can I Get a Copy of This 

Document? 

In addition to being available in the 

docket, an electronic copy of this final 

action will also be available on the 

Worldwide Web (WWW) through the 

Technology Transfer Network (TTN). 

Following signature, a copy of this final 

action will be posted on the TTN’s 

policy and guidance page for newly 

proposed or promulgated rules at the 

following address: http://www.epa.gov/ 

ttn/oarpg/. The TTN provides 

information and technology exchange in 

various areas of air pollution control. 

C. Judicial Review 

Under section 307(b)(1) of the Clean 

Air Act (CAA), judicial review of this 

final rule is available only by filing a 

petition for review in the United States 

Court of Appeals for the District of 

Columbia Circuit by August 24, 2009. 

Under section 307(b)(2) of the CAA, the 

requirements established by this final 

rule may not be challenged separately in 

any civil or criminal proceedings 

brought by EPA to enforce these 

requirements. 

Section 307(d)(7)(B) of the CAA 

further provides that ‘‘[o]nly an 

objection to a rule or procedure which 

was raised with reasonable specificity 

during the period for public comment 

(including any public hearing) may be 

raised during judicial review.’’ This 

section also provides a mechanism for 

EPA to convene a proceeding for 

reconsideration, ‘‘[i]f the person raising 

an objection can demonstrate to EPA 

that it was impracticable to raise such 

objection within [the period for public 

comment] or if the grounds for such 

objection arose after the period for 

public comment (but within the time 

specified for judicial review) and if such 

objection is of central relevance to the 

outcome of the rule.’’ Any person 

seeking to make such a demonstration to 

us should submit a Petition for 

Reconsideration to the Office of the 

Administrator, U.S. EPA, Room 3000, 

Ariel Rios Building, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, with 

a copy to both the person(s) listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section, and the Associate 

General Counsel for the Air and 

Radiation Law Office, Office of General 

Counsel (Mail Code 2344A), U.S. EPA, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

II. Background Information for This 

Final Rule 

Section 112(d) of the CAA requires us 

to establish national emission standards 

for hazardous air pollutants (NESHAP) 

for both major and area sources of 

hazardous air pollutants (HAP) that are 

listed for regulation under CAA section 

112(c). A major source emits or has the 

potential to emit 10 tons per year (tpy) 

or more of any single HAP or 25 tpy or 

more of any combination of HAP. An 

area source is a stationary source that is 

not a major source. 

Section 112(k)(3)(B) of the CAA calls 

for EPA to identify at least 30 HAP that, 

as the result of emissions from area 

sources, pose the greatest threat to 

public health in the largest number of 

urban areas. EPA implemented this 

provision in 1999 in the Integrated 

Urban Air Toxics Strategy (64 FR 38715, 

July 19, 1999). In the Strategy, EPA 

identified 30 HAP that pose the greatest 

potential health threat in urban areas; 

these HAP are referred to as the ‘‘30 

urban HAP.’’ Section 112(c)(3) requires 

EPA to list sufficient categories or 

subcategories of area sources to ensure 

that area sources representing 90 

percent of the emissions of the 30 urban 

HAP are subject to regulation. We 

implemented these requirements 

through the Strategy and subsequent 

updates to the source category list. The 

aluminum foundry area source category 

was listed pursuant to section 112(c)(3) 

for its contribution toward meeting the 

90 percent requirement for beryllium, 

cadmium, lead, manganese, and nickel 

compounds. The copper foundry area 

source category was listed due to 

emissions of lead, manganese, and 

nickel compounds, and the other 

nonferrous foundry area source category 

was listed due to emissions of 

chromium, lead, and nickel compounds. 

Under CAA section 112(d)(5), the 

Administrator may, in lieu of issuing a 

MACT standard pursuant to CAA 

section 112(d)(2), elect to promulgate 

standards or requirements for area 

sources ‘‘which provide for the use of 

generally available control technology 

or management practices by such 

sources to reduce emissions of 

hazardous air pollutants.’’ As explained 

in the preamble to the proposed 

NESHAP, EPA proposed, and is 

finalizing in today’s action, standards 

based on generally available control 

technology and management practices 

(GACT). 

We are issuing these final standards 

in response to a court-ordered deadline 

that requires EPA to issue standards for 

these three foundry source categories 

listed pursuant to section 112(c)(3) and 

(k) by June 15, 2009 (Sierra Club v. 

Johnson, No. 01–1537, (D.D.C., March 

2006)). 

III. Revision to the Source Category List 

This notice announces two revisions 

to the area source category list 

developed under our Integrated Urban 

Air Toxics Strategy pursuant to section 

112(c)(3) of the CAA. The first revision 

changes the name of the ‘‘Secondary 

Aluminum Production’’ source category 

to ‘‘Aluminum Foundries.’’ The second 

revision changes the name of the 

‘‘Nonferrous Foundries, nec’’ source 

category to ‘‘Other Nonferrous 

Foundries.’’ 1

IV. Summary of Changes Since 

Proposal 

This final rule contains several 

clarifications to the proposed rule as a 

result of public comments. We explain 

the reasons for these changes in detail 

in the summary of comments and 

responses (section VI of this preamble). 

First, we established that the 

production from calendar year 2010 is 

used to determine if your existing 

aluminum, copper, or other nonferrous 

foundry melted more than 600 tpy of 

aluminum, copper, other nonferrous 

metals, and all associated alloys and, 

therefore, is subject to the rule. If a 

foundry with an existing melting 

operation increases production after 

2010 such that the annual metal melt 

production equals or exceeds 600 tpy, it 

must notify the permitting authority 

within 30 days after the end of that 

calendar year and comply with the rule 

within 2 years following the date of the 

notification. If a foundry with an 

existing melting operation subsequently 

decreases annual production after 2010 

such that it produces less than 600 tpy, 

the foundry remains subject to the rule. 

Foundries with new melting operations 

are subject to the rule if the annual 

metal melt capacity at the time of 

startup equals or exceeds 600 tpy. If a 

foundry with a new melting operation 

increases capacity after startup such that 

the annual metal melt capacity equals or 


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exceeds 600 tpy, it must notify the 

permitting authority within 30 days 

after the capacity increase and comply 

with the rule at the time of the capacity 

increase. If a foundry with a new 

melting operation subsequently 

decreases annual capacity after startup 

such that the capacity is less than 600 

tpy, the foundry remains subject to the 

rule. 

Second, we revised the rule to clarify 

that the production from calendar year 

2010 for existing sources (or capacity at 

the time of startup for new sources) is 

used to determine if you are a small 

copper or other nonferrous foundry or a 

large copper or other nonferrous 

foundry. Large foundries are subject to 

both management practices and 

particulate matter (PM) emission limits. 

The final rule also addresses 

comments on production levels that 

may fluctuate above or below the 6,000 

tpy annual copper and other nonferrous 

metal melt production (excluding 

aluminum) and whether the PM/metal 

HAP control requirements apply to 

copper and other nonferrous foundries 

when the melt production rises above or 

falls below 6,000 tpy. If a small copper 

or other nonferrous foundry with an 

existing melting operation increases 

production after the 2010 calendar year 

such that the annual copper and other 

nonferrous metal melt production 

equals or exceeds 6,000 tons, the 

foundry must submit a notification of 

foundry reclassification to the 

Administrator (or his or her authorized 

representative) within 30 days after the 

end of that calendar year and comply 

with the requirements for large copper 

or other nonferrous foundries no later 

than 2 years after the date of the 

foundry’s notification that the annual 

copper and other nonferrous metal melt 

production equaled or exceeded 6,000 

tons. If a large copper or other 

nonferrous foundry with an existing 

melting operation subsequently 

decreases production such that the 

quantity of copper and other nonferrous 

metal melted is less than 6,000 tpy, it 

remains a large copper or other 

nonferrous foundry. 

If, subsequent to start-up, a new 

source small copper or other nonferrous 

foundry increases its melting operation 

capacity such that the annual copper 

and other nonferrous metal melt 

capacity equals or exceeds 6,000 tons, 

the foundry must submit a notification 

of foundry reclassification to the 

Administrator (or his or her authorized 

representative) within 30 days after the 

increase in capacity and comply with 

the requirements for large copper or 

other nonferrous foundries at the time of 

the capacity increase. If a new source 

large copper or other nonferrous 

foundry subsequently decreases metal 

melt capacity such that the capacity is 

less than 6,000 tpy, it remains a large 

copper or other nonferrous foundry and 

must continue to comply with the PM/ 

metal HAP control requirements. 

We further clarified in the final rule 

that, in determining whether a source’s 

‘‘annual metal melt production’’ (for 

existing sources) and ‘‘annual metal 

melt capacity’’ (for new sources) 

exceeds 600 tpy, sources must identify 

the total amount of only aluminum, 

copper, and other nonferrous metal 

melted for existing sources (or the 

capacity to melt only aluminum, 

copper, and other nonferrous metal for 

new sources), and not the total amount 

of all types of metal melted (or the 

capacity to melt all metals for new 

sources). The comments EPA received 

noted that this clarification is 

particularly important for aluminum, 

copper, and other nonferrous melting 

operations that are co-located with 

ferrous metal melting operations. 

Similarly, we also clarified that the 

6,000 tpy threshold between small and 

large copper and other nonferrous 

foundries (excluding aluminum 

foundries) is based on the annual 

amount of copper and other nonferrous 

metal (excluding aluminum) that is 

melted. 

We revised the recordkeeping 

requirements to remove the requirement 

to record the date and time of each 

melting operation. Several commenters, 

specifically for smaller sources, 

expressed that the burden of recording 

and keeping these records would not 

have provided useful documentation 

that the required management practices 

were being followed. We have added a 

provision to the final rule that requires 

monthly inspections to document that 

the management practices are being 

followed during melting operations. 

We also adjusted the visible emission 

(VE) monitoring requirements to allow a 

reduction from daily to weekly 

observations after 30 consecutive days 

of no VE instead of 90 consecutive days. 

Several commenters noted that there are 

some special occasions when the cause 

of VE cannot be remedied within 3 

hours as proposed. We changed the VE 

requirements to parallel those for bag 

leak detection systems, which allow 

more than 3 hours if the owner or 

operator identifies the specific 

conditions in a monitoring plan, 

adequately explains why more than 3 

hours is necessary, and demonstrates 

that the requested time will alleviate the 

problem as expeditiously as practicable. 

Based on our survey results and a 

review of operating permits, we expect 

most (if not all) large copper and other 

nonferrous foundries will use a fabric 

filter to control emissions from melting 

operations. However, it is conceivable 

that a new or existing foundry could use 

a device other than a fabric filter. We 

revised the monitoring requirements for 

large copper and other nonferrous 

foundries that use a control device other 

than a fabric filter to require that they 

submit a request to use alternative 

monitoring procedures as required by 

the General Provisions (section 

63.8(f)(4)). Submitting this request is 

consistent with EPA’s requirements and 

procedures for alternative monitoring. 

Finally, we have clarified that the 

final rule does not include other source 

categories, such as secondary aluminum 

production, secondary copper 

production, secondary nonferrous metal 

production, and primary copper 

smelting. We have explicitly stated in 

the rule that primary and secondary 

metal melting operations are not subject 

to this foundry rule. We clarified the 

definition of foundries to include the 

casting of complex metal shapes and to 

exclude the products cast by primary 

and secondary metal production 

facilities (e.g., sows, ingots, bars, anode 

copper, rods, and copper cake). 

V. Summary of Final Standards 

A. Is My Foundry Subject to This 

Subpart? 

The three source categories subject to 

this rule include aluminum foundries, 

copper foundries, and other nonferrous 

foundries. Any aluminum, copper, or 

other nonferrous foundry is subject to 

this subpart if it (1) is an area source 

defined by 40 CFR 63.2, (2) has an 

annual metal melt production in 

calendar year 2010 for existing affected 

sources or an annual metal melt 

capacity at startup for new affected 

sources of 600 tpy or more, and (3) is 

an aluminum foundry that uses material 

containing ‘‘aluminum foundry HAP,’’ a 

copper foundry that uses material 

containing ‘‘copper foundry HAP,’’ or 

an other nonferrous foundry uses 

material containing ‘‘other nonferrous 

foundry HAP’’ (as these terms are 

defined in more detail below). 

Material containing ‘‘aluminum 

foundry HAP’’ is any material that 

contains beryllium, cadmium, lead, or 

nickel in amounts greater than or equal 

to 0.1 percent by weight (as the metal), 

or contains manganese in amounts 

greater than or equal to 1.0 percent by 

weight (as the metal). Material 

containing ‘‘copper foundry HAP’’ is 

any material that contains lead or nickel 

in amounts greater than or equal to 0.1 

percent by weight (as the metal), or 


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contains manganese in amounts greater 

than or equal to 1.0 percent by weight 

(as the metal). Material containing 

‘‘other nonferrous foundry HAP’’ is any 

material that contains chromium, lead, 

or nickel in amounts greater than or 

equal to 0.1 percent by weight (as the 

metal). The owner or operator must 

determine whether material contains 

aluminum, copper, or other nonferrous 

foundry HAP, for example, by using 

formulation data provided by the 

manufacturer or supplier, such as the 

material safety data sheet (MSDS). 

B. Do These Standards Apply to My 

Source? 

The standards apply to the melting 

operations (the affected source) at 

foundries subject to the rule as 

discussed above. More specifically, the 

affected source is (and the standards 

apply to) (1) the collection of all 

aluminum foundry melting operations 

that melt any material containing 

aluminum foundry HAP, (2) the 

collection of all copper foundry melting 

operations that melt any material 

containing copper foundry HAP, and (3) 

the collection of all other nonferrous 

foundry melting operations that melt 

any material containing other 

nonferrous foundry HAP. ‘‘Melting 

operations’’ means the collection of 

furnaces (e.g., induction, reverberatory, 

crucible, tower, dry hearth) used to melt 

metal ingot, alloyed ingot and/or metal 

scrap to produce molten metal that is 

poured into molds to make castings. 

A foundry is an existing affected 

source if construction or reconstruction 

of the melting operations commenced 

on or before February 9, 2009. A 

foundry is a new affected source if 

construction or reconstruction of the 

melting operations commenced after 

February 9, 2009. Because the affected 

source is the collection of all the 

melting operations at, for example, a 

copper foundry, addition of new 

melting equipment at an existing 

affected source (i.e., a source 

constructed before February 9, 2009) 

does not subject the foundry to the 

GACT standards for a new affected 

source. Furthermore, the standards for a 

new affected source would only apply 

to an aluminum, copper or other 

nonferrous foundry that is constructed 

or reconstructed after February 9, 2009. 

C. When Must I Comply With These 

Standards? 

The owner or operator of an existing 

affected source is required to comply 

with the rule no later than June 27, 

2011. The owner or operator of a new 

affected source is required to comply by 

June 25, 2009 or upon startup of the 

source, whichever occurs later. 

D. What Are the Final Standards? 

These final standards establish that 

the following management practices are 

GACT for all new and existing affected 

sources at aluminum, copper, and other 

nonferrous foundries: (1) Cover or 

enclose melting furnaces that are 

equipped with covers or enclosures 

during the melting process, to the extent 

practicable (e.g., except when access is 

needed, including, but not limited to, 

charging, alloy addition, and tapping); 

and (2) purchase only scrap material 

that has been depleted (to the extent 

practicable) of ‘‘aluminum foundry 

HAP,’’ ‘‘copper foundry HAP’’, or ‘‘other 

nonferrous foundry HAP’’ in the 

materials charged to the melting 

furnace(s), excluding HAP metals that 

are required to be added for the 

production of alloyed castings or that 

are required to meet written 

specifications for the casting. Owners or 

operators of affected sources must 

develop and operate under a written 

management practices plan for 

minimizing emissions from melting 

operations that apply the two 

techniques described above. The rule 

also requires owners or operators to 

retain the plan and the appropriate 

records to demonstrate that the two 

techniques are used during melting 

operations. Both EPA and the State 

permitting authority can request to 

review the management practices plan 

at their discretion. 

In addition, the owner or operator of 

an existing affected source at a large 

copper foundry and other nonferrous 

foundry (i.e., one that melts at least 

6,000 tpy of copper and other 

nonferrous metal, excluding aluminum) 

is required to achieve a PM control 

efficiency of at least 95.0 percent or an 

outlet PM concentration of at most 0.015 

grains per dry standard cubic foot (gr/ 

dscf). The owner or operator of a new 

affected source at a large copper foundry 

or other nonferrous foundry must 

achieve a PM control efficiency of at 

least 99.0 percent or an outlet PM 

concentration of at most 0.010 gr/dscf. 

E. What Are the Testing and Monitoring 

Requirements? 

1. Performance Test 

No performance tests are required for 

an aluminum foundry or for a small 

copper or other nonferrous foundry (i.e., 

one that melts less than 6,000 tpy of 

copper and other nonferrous metal, 

excluding aluminum) because they are 

subject only to the management 

practices as described in 63.11550(a). 

The owner or operator of any existing or 

any new affected source at a large 

copper or other nonferrous foundry is 

required to conduct a one-time initial 

performance test to demonstrate 

compliance with the PM/metal HAP 

standard. The owner or operator is 

required to test PM emissions from 

melting operations using EPA Method 5 

or 5D (40 CFR part 60, appendix A–3) 

or EPA Method 17 (40 CFR part 60, 

appendix A–6). 

A performance test is not required for 

an existing affected source if a prior 

performance test has been conducted 

within 5 years of the compliance date 

using the methods required by this final 

rule, and either (1) no process changes 

have been made since the test, or (2) the 

owner or operator can demonstrate to 

the satisfaction of the permitting 

authority that the results of the 

performance test, with or without 

adjustments, reliably demonstrate 

compliance despite process changes. 

2. Monitoring Requirements 

The owner or operator of a new or 

existing affected source (i.e., the 

collection of melting operations as 

defined in section 63.11556 of this final 

rule) is required to record information to 

document conformance with the 

management practices plan, including 

conducting monthly inspections, to 

document that the management 

practices are being followed. 

For existing affected sources at large 

copper or other nonferrous foundries 

where PM emissions are controlled by a 

fabric filter, the owner or operator is 

required to conduct daily observations 

of VE from the fabric filter outlet during 

melting operations. We do not expect 

any VE from a fabric filter that is 

properly designed, operated, and 

maintained. Should any of the daily 

observations reveal any VE, the owner 

or operator must initiate corrective 

action to determine the cause of the VE 

within 1 hour and alleviate the cause of 

the emissions within 3 hours of the 

observations by taking whatever 

corrective actions are necessary. The 

owner or operator may take more than 

3 hours to alleviate the cause of VE if 

the owner or operator has already 

identified the specific condition 

requiring more time in a monitoring 

plan. In addition to identifying the 

condition in the plan, the owner or 

operator must also adequately explain 

in the monitoring plan why it is not 

feasible to alleviate this condition 

within 3 hours of the time the VE 

occurs, provide an estimate of the time 

that it would take to alleviate the cause, 

and demonstrate that the requested time 

will ensure alleviation of this condition 


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as expeditiously as practicable. The 

owner or operator must record the 

results of the daily observations and any 

corrective actions taken in response to 

VE. Owners or operators of large copper 

or other nonferrous foundries could 

decrease the frequency of observations 

from daily to weekly if the foundry 

operates for at least 30 consecutive days 

without any VE. The owner or operator 

must maintain adequate records to 

support the claim of no VE for the 30- 

day operating period. After the foundry 

converts to a weekly observation 

schedule, if any VE are observed, the 

foundry must revert back to daily 

observations. The foundry may 

subsequently reduce the observations to 

weekly if it operates for at least 30 

consecutive days without any VE. 

As an alternative to the VE 

observations, an owner or operator of an 

existing affected source at a large copper 

or other nonferrous foundry may elect to 

operate and maintain a bag leak 

detection system as described below for 

a new affected source at a large copper 

or other nonferrous foundry. 

The owner or operator of a new 

affected source (i.e., collection of 

melting operations) at a large copper or 

other nonferrous foundry must install, 

operate and maintain a bag leak 

detection system to monitor the affected 

source. The owner or operator of a new 

affected source at a large copper or other 

nonferrous foundry must also prepare a 

site-specific monitoring plan for each 

bag leak detection system. As with 

monitoring the VE for an existing 

affected source, EPA expects that a 

properly designed, operated and 

maintained filter system will not trigger 

the leak detection system. 

Our study of the industry indicates 

that fabric filters are used as the control 

device for melting furnaces; however, a 

new or existing melting operation may 

use some other type of control device to 

meet the PM emission standards. If a 

large copper or other nonferrous 

foundry uses a control device other than 

a fabric filter for a new or existing 

melting operation to comply with the 

PM emission standards, the owner or 

operator must submit a request to use an 

alternative monitoring procedure as 

required by the General Provisions in 

section 63.8(f)(4). 

F. What Are the Notification, 

Recordkeeping, and Reporting 

Requirements? 

The owner or operator of an existing 

or new affected source is required to 

comply with certain notification, 

recordkeeping and reporting 

requirements of the General Provisions 

(40 CFR part 63, subpart A), which are 

identified in Table 1 of the final rule. 

Each owner or operator of an affected 

source is required to submit an Initial 

Notification according to the 

requirements section 63.9(a) through (d) 

and a Notification of Compliance Status 

according to the requirements in section 

63.9(h) of the NESHAP General 

Provisions (40 CFR part 63, subpart A). 

In addition to the information required 

in 63.9(h), the owner or operator must 

indicate how it plans to comply with 

the requirements. 

Each owner or operator of an existing 

or new affected source is required to 

keep records to document compliance 

with the required management 

practices. If the melting operations use 

a cover or enclosure, the owner or 

operator must identify which melting 

furnaces are equipped with a cover or 

enclosure, and record the results of the 

monthly inspection in order to 

demonstrate compliance with the 

procedures in the management practices 

plan for covers or enclosures. These 

records may be in the form of a 

checklist. 

The owner or operator of a new or 

existing affected source must also keep 

records of the metal scrap purchased to 

demonstrate compliance with the 

requirement that only metal scrap that 

has been depleted of HAP metals prior 

to charging can be used in the melting 

furnace(s). 

Owners or operators of existing 

affected sources at large copper or other 

nonferrous foundries equipped with a 

fabric filter that choose to comply with 

the PM standard through visual 

emission observations must maintain 

records of all VE monitoring data 

including: 

• Date, place, and time of the 

monitoring event; 

• Person conducting the monitoring; 

• Technique or method used; 

• Operating conditions during the 

activity; 

• Results, including the date, time, 

and duration of the period from the time 

the monitoring indicated a problem to 

the time that monitoring indicated 

proper operation. 

• Maintenance or other corrective 

action. 

Recordkeeping requirements also 

apply to facilities that use bag leak 

detection systems, including records of 

the bag leak detection system output, 

bag leak detection system adjustments, 

the date and time of all bag leak 

detection system alarms, and for each 

valid alarm, the time corrective action 

was taken, the corrective action taken, 

and the date on which corrective action 

was completed. 

Existing affected sources at small 

copper and other nonferrous foundries 

(excluding aluminum) must keep 

records to demonstrate that the annual 

copper and other nonferrous metal melt 

production is less than 6,000 tpy for 

each calendar year. 

Similarly, new affected sources at 

small copper and other nonferrous 

foundries (excluding aluminum) must 

keep records to demonstrate that the 

annual copper and other nonferrous 

metal melt capacity is less than 6,000 

tpy for each calendar year. 

If a deviation from the rule 

requirements occurs, an affected source 

is required to submit a compliance 

report for that reporting period. The 

final rule, section 63.11553(e), specifies 

the information requirements for such 

compliance reports. 

G. What Are the Title V Permit 

Requirements? 

This final rule exempts the aluminum 

foundries, copper foundries, and other 

nonferrous foundries area source 

categories from title V permitting 

requirements unless the affected source 

is otherwise required by law to obtain 

a title V permit. For example, sources 

that have title V permits because they 

are major sources under the criteria 

pollutant program (i.e., for PM, ozone, 

carbon monoxide, nitrogen oxides, 

sulfur dioxide and lead) would maintain 

those permits. 

VI. Summary of Comments and 

Responses 

We received public comments on the 

proposed rule from a total of 24 

commenters. These commenters 

included eight companies, seven trade 

associations, five representatives of 

State agencies, three private citizens, 

and one environmental organization. 

Sections VI.A through VI.I of this 

preamble summarize the comments and 

provide our responses. 

A. GACT Issues 

1. Selection of GACT 

Comment: One commenter stated that 

EPA’s decision to issue GACT standards 

pursuant to CAA section 112(d)(5), 

instead of MACT standards pursuant to 

section 112(d)(2) and (3), is arbitrary 

and capricious because EPA provided 

no rationale for its decision to issue 

GACT standards. The commenter also 

claimed that the proposed standards are 

based solely on cost and are thus 

unlawful and arbitrary. 

The commenter claims that CAA 

section 112(d)(5) does not direct EPA to 

set standards based on what is cost 

effective; rather, according to the 


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2Specifically, section 112(d)(3) sets the minimum 

degree of emission reduction that MACT standards 

must achieve, which is known as the MACT floor. 

For new sources, the degree of emission reduction 

shall not be less stringent than the emission control 

that is achieved in practice by the best-controlled 

similar source, and for existing sources, the degree 

of emission reduction shall not be less stringent 

than the average emission limitation achieved by 

the best performing 12 percent of the existing 

sources for which the Administrator has emissions 

information. Section 112(d)(2) directs EPA to 

consider whether more stringent—so called 

‘‘beyond-the-floor’’—limits are technologically 

achievable considering, among other things, the 

cost of achieving the emission reduction. 

3Section 112(d)(5) also references section 112(f). 

See CAA section 112(f)(5) (titled ‘‘Area Sources’’), 

which provides that EPA is not required to conduct 

a review or promulgate standards under section 

112(f) for any area source category or subcategory 

listed pursuant to section 112(c)(3) and for which 

an emission standard is issued pursuant to section 

112(d)(5). 

commenter EPA must establish GACT 

based on the ‘‘methods, practices and 

techniques which are commercially 

available and appropriate for 

application by the sources in the 

category considering economic 

impacts.’’ The commenter stated that 

because cost effectiveness is not 

relevant under CAA section 112(d)(5), 

the reliance on cost effectiveness as the 

sole determining factor in establishing 

GACT renders the proposed standards 

unlawful. 

Response: As the commenter 

recognizes, in section 112(d)(5), 

Congress gave EPA explicit authority to 

issue alternative emission standards for 

area sources. Specifically, section 

112(d)(5), which is titled ‘‘Alternative 

standard for area sources,’’ provides: 

With respect only to categories and 

subcategories of area sources listed pursuant 

to subsection (c) of this section, the 

Administrator may, in lieu of the authorities 

provided in paragraph (2) and subsection (f) 

of this section, elect to promulgate standards 

or requirements applicable to sources in such 

categories or subcategories which provide for 

the use of generally available control 

technologies or management practices by 

such sources to reduce emissions of 

hazardous air pollutants. See CAA section 

112(d)(5) (emphasis added). 

There are two critical aspects to 

section 112(d)(5). First, section 112(d)(5) 

applies only to those categories and 

subcategories of area sources listed 

pursuant to section 112(c). The 

commenter does not dispute that EPA 

listed the aluminum, copper, and other 

nonferrous foundries area source 

categories pursuant to section 112(c). 

Second, section 112(d)(5) provides that 

for area sources listed pursuant to 

section 112(c)(3), EPA ‘‘may, in lieu of’’ 

the authorities provided in section 

112(d)(2) and 112(f), elect to promulgate 

standards pursuant to section 112(d)(5). 

Section 112(d)(2) provides that emission 

standards established under that 

provision ‘‘require the maximum degree 

of reduction in emissions’’ of HAP (also 

known as MACT). Section 112(d)(3), in 

turn, defines what constitutes the 

‘‘maximum degree of reduction in 

emissions’’ for new and existing 

sources. See section 112(d)(3).2

Webster’s dictionary defines the phrase 

‘‘in lieu of’’ to mean ‘‘in the place of’’ 

or ‘‘instead of.’’ See Webster’s II New 

Riverside University (1994). Thus, 

section 112(d)(5) authorizes EPA to 

promulgate standards under section 

112(d)(5) that provide for the use of 

GACT, instead of issuing MACT 

standards pursuant to section 112(d)(2) 

and (d)(3). The statute does not set any 

condition precedent for issuing 

standards under section 112(d)(5) other 

than that the area source category or 

subcategory at issue must be one that 

EPA listed pursuant to section 112(c)(3), 

which is the case here.3

The commenter argues that EPA must 

provide a rationale for issuing GACT 

standards under section 112(d)(5), 

instead of MACT standards. The 

commenter is incorrect. Had Congress 

intended that EPA first conduct a MACT 

analysis for each area source category, 

Congress would have stated so expressly 

in section 112(d)(5). Congress did not 

require EPA to conduct any MACT 

analysis, floor analysis or beyond-thefloor analysis before the Agency could 

issue a section 112(d)(5) standard. 

Rather, Congress authorized EPA to 

issue GACT standards for area source 

categories listed under section 112(c)(3), 

and that is precisely what EPA has done 

in this rulemaking. 

Although EPA need not justify its 

exercise of discretion in choosing to 

issue a GACT standard for an area 

source listed pursuant to section 

112(c)(3), EPA still must have a 

reasoned basis for the GACT 

determination for the particular area 

source category. The legislative history 

supporting section 112(d)(5) provides 

that GACT is to encompass: 

* * * methods, practices and techniques 

which are commercially available and 

appropriate for application by the sources in 

the category considering economic impacts 

and the technical capabilities of the firms to 

operate and maintain the emissions control 

systems. 

See Senate Report on the 1990 

Amendments to the Act (S. Rep. No. 

101–228, 101st Cong. 1st session. 171– 

172). The discussion in the Senate 

report clearly provides that EPA may 

consider costs in determining what 

constitutes GACT for the area source 

category. 

Congress plainly recognized that area 

sources differ from major sources, 

which is why Congress allowed EPA to 

consider costs in setting GACT 

standards for area sources under section 

112(d)(5), but did not allow that 

consideration in setting MACT floors for 

major sources pursuant to section 

112(d)(3). This important dichotomy 

between section 112(d)(3) and section 

112(d)(5) provides further evidence that 

Congress sought to do precisely what 

the title of section 112(d)(5) states— 

provide EPA the authority to issue 

‘‘[a]lternative standards for area 

sources.’’ 

Notwithstanding the commenter’s 

claim, EPA properly issued standards 

for the area source categories at issue 

here under section 112(d)(5) and in 

doing so provided a reasoned basis for 

its selection of GACT for these area 

source categories. As explained in the 

proposed rule and below, EPA 

evaluated the control technologies and 

management practices that reduce HAP 

emissions at aluminum, copper and 

other nonferrous foundries, including 

those at both major and area sources. 

See 74 FR 6512. In its evaluation, EPA 

used information from an EPA survey of 

the three source categories, discussed 

options for control with industry trade 

associations, and reviewed operating 

permits to identify the emission controls 

and management practices that are 

currently used to control PM and metal 

HAP emissions. We also considered 

technologies and practices at major and 

area sources in similar categories. For 

example, we reviewed the management 

practices required by the area source 

standards for iron and steel foundries 

(40 CFR part 63, subpart ZZZZZ). 

In our evaluation, we identified 

certain management practices and PM 

control techniques that have been 

implemented at a significant number of 

foundries. Of the management practices 

identified, two in particular were used 

frequently: (1) Cover or enclose melting 

furnaces that are equipped with covers 

or enclosures during the melting 

process, and (2) purchase only scrap 

that has been depleted (to the extent 

practicable) of HAP metals in the 

materials charged to the melting 

furnace. Of the PM control technologies 

identified, we found that large copper 

and other nonferrous foundries (i.e., 

foundries melting 6,000 tpy or more of 

copper and other nonferrous metal) 

frequently used control technologies to 

reduce PM/HAP emissions, while 

smaller (less than 6,000 tpy) did not. 

Furthermore, we found that large copper 

and other nonferrous foundries used 

fabric filters as the primary technique to 

reduce PM/HAP metal emissions. The 


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wide use of the management techniques 

and PM controls indicates that such 

practices are generally available for the 

area source categories at issue. 

The commenter further argues that 

EPA inappropriately chose the 

management practices and controls 

described above as GACT based solely 

on costs, and according to the 

commenter, cost is not relevant to GACT 

determinations and as such the 

standards are unlawful. We disagree. 

First, contrary to the commenter’s 

assertions, EPA did not select GACT on 

cost alone, as the discussion above 

supports. Second, and also contrary to 

the commenter’s assertions, the 

Agency’s consideration of cost 

effectiveness in establishing GACT and 

the Agency’s views on what is a costeffective requirement under section 

112(d)(5) are relevant. The U.S. Court of 

Appeals for the DC Circuit has stated 

that cost effectiveness is a reasonable 

measure of cost as long as the statute 

does not mandate a specific method of 

determining cost. See Husqvarna AB v. 

EPA, 254 F.3d 195, 201 (D.C. Cir. 2001) 

(finding EPA’s decision to consider 

costs on a per ton of emissions removed 

basis reasonable because CAA section 

213 did not mandate a specific method 

of cost analysis). 

In addition to evaluating what was 

generally available to the foundries at 

issue, we considered costs and 

economic impacts in determining 

GACT. We estimated the cost of 

compliance for the proposed rule to 

include a one-time first year cost of 

$656,000, a recurring total annualized 

cost of $645,000 per year, and an 

average of $2,000 per year per plant. (74 

FR 6522). To the best of our knowledge 

and based on the information we have 

available, the management practices are 

not costly to implement and would not 

result in any significant adverse 

economic impact on any foundry. Our 

economic impact analysis estimated that 

the proposed rule would have an impact 

of less than 0.05 percent of sales (74 FR 

6523). We believe the consideration of 

costs and economic impacts is 

especially important for determining 

GACT for the aluminum, copper, and 

other nonferrous foundries because, 

given their relatively low level of HAP 

emissions, requiring additional controls 

would result in only marginal 

reductions in emissions at very high 

costs for modest incremental 

improvement in control. 

Finally, even though not required, 

EPA did provide a rationale for why it 

set a GACT standard in the proposed 

rule. In the proposal, we explained that 

the facilities in the source categories at 

issue here are already well controlled 

for the urban HAP for which the source 

category was listed pursuant to section 

112(c)(3). See 74 FR 6517 and 6522. 

Consideration of costs and economic 

impacts proves especially important for 

the well-controlled area sources at issue 

in this final action. Given the current, 

well-controlled emission levels, a 

MACT floor determination, where costs 

cannot be considered, could result in 

only marginal reductions in emissions 

at very high costs for modest 

incremental improvement in control for 

the area source category. 

2. Cost Effectiveness of the GACT 

Standards 

Comment: One commenter claimed 

that EPA did not undertake sufficient 

analysis to support the conclusion that 

‘‘given their relatively low levels of HAP 

emissions, requiring additional controls 

would result in only marginal 

reductions in emissions at very high 

costs for modest incremental 

improvement in control.’’ (See 74 FR 

6517.) As an example, the commenter 

said that for copper and other 

nonferrous foundries that melt 6,000 tpy 

or more, EPA determined that the 

majority of facilities currently operate 

using a control system for PM, and that 

those controls achieve a reduction in 

PM emissions of 95 percent. According 

to the commenter, EPA did not consider 

setting a tighter standard despite the fact 

that of the eight facilities that reported 

the efficiency of their add-on controls, 

four achieved an efficiency of 98 

percent or higher. The commenter stated 

that when EPA analyzed and rejected 

stronger control options, the analysis 

was based solely on the costeffectiveness of those controls. The 

commenter also asserted that EPA 

should not have rejected the option of 

requiring all copper and other 

nonferrous foundries to utilize add-on 

controls because, in the commenter’s 

view, such controls are ‘‘generally 

available’’ and ‘‘effective for controlling 

emissions of PM and metal HAP from 

copper and nonferrous foundries.’’ 

The commenter noted that EPA 

determined that it would be overly 

costly to require facilities to install new 

PM control devices for the under 6,000 

tpy subcategory because the cost 

effectiveness was $50,000 per ton of PM 

and $1 million per ton of metal HAP. 

According to the commenter, EPA 

neither claims that the economic 

impacts are too great based on the 

profitability of these plants, nor 

determines how economically 

significant it would be for such a plant 

to make the necessary investment in 

these controls. 

Response: EPA properly issued 

standards for the area source categories 

at issue here under section 112(d)(5), 

and cost effectiveness was not the only 

consideration in setting the standards. 

In establishing GACT standards for all 

three types of foundries, EPA 

determined that all affected sources 

subject to this rule must meet two 

management practices applicable to the 

melting operations to reduce the HAP 

emissions. First, covers or enclosures 

are used during the melting operation 

on furnaces that have them to suppress 

emissions. Second, the purchased scrap 

is depleted to the extent practicable of 

HAP metals that are contaminants and 

are not necessary to meet product 

specifications. EPA found that most of 

the sources in the survey employed one 

or both of these methods to control HAP 

emissions from the melting process. 

Affected sources must use these two 

practices to comply with this area 

source standard. The general use of 

these methods and their acceptable 

costs and economic impacts led EPA to 

choose these as part of the GACT 

standards applicable to aluminum, 

copper and other nonferrous foundries. 

For existing large copper and other 

nonferrous foundries, EPA determined 

these affected sources have generally 

available to them PM control techniques 

that result in a PM control efficiency of 

95 percent. The survey conducted prior 

to the proposal indicated that the large 

copper and other nonferrous foundries 

used operating practices and add-on 

control devices to control PM emissions. 

EPA requested test data as part of the 

industry survey, but none was provided. 

Sources did report control efficiencies, 

but in some cases, the control levels for 

the baghouses and cartridge filters were 

engineering estimates or equipment 

manufacturer specifications. 

In choosing the management practices 

for foundries in all three source 

categories and additional PM controls 

on large copper and other nonferrous 

foundries, EPA looked to the discussion 

on GACT as found in the Senate report 

on the legislation (Senate report No. 

101–228, Dec. 20, 1989), which 

describes GACT as: 

* * * methods, practices and techniques 

which are commercially available and 

appropriate for application by the sources in 

the category considering economic impacts 

and the technical capabilities of the firms to 

operate and maintain the emission controls 

systems. 

The information we collected 

supports a 95 percent control level for 

PM (as a surrogate for metal HAP) as 

GACT for these two categories of 

existing area sources. While the data 

collected during the survey shows that 


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some sources reported a 98 percent PM 

emission control efficiency, the data 

also showed that the control equipment 

commercially available and appropriate 

for application to these sources (e.g., 

baghouses) does not result in control 

efficiencies of 98 percent on a 

continuing basis. See Mossville 

Environmental Action Now v. EPA, 370 

F.3d 1232, 1242 (D.C. Cir. 2004) (EPA 

may appropriately account for 

operational variability in setting section 

112(d) emission standards). 

EPA also determined that the cost 

associated with replacing existing 

control equipment that achieves 95 

percent control with newer equipment 

to achieve 98 percent control would 

result in a cost and cost effectiveness 

not justified by the incremental 

reduction in emissions. For example, 

consider a copper foundry melting 6,000 

tpy of copper in electric induction 

furnaces with a fabric filter as the 

control device operating at 95 percent 

control efficiency. Uncontrolled 

emissions of PM (at 1.5 lb/ton) and HAP 

(at 5 percent of PM) of 4.5 tpy and 0.23 

tpy, respectively, would be reduced to 

0.225 and 0.0113 tpy, respectively, 

assuming the 95 percent control 

efficiency of the existing fabric filter. 

Either a new baghouse in series or an 

expanded baghouse, both with newer 

fabric for the filter (e.g., membrane bags) 

and a lower air-to-cloth ratio, would be 

required to increase the control 

efficiency from 95 percent to 98 percent. 

At the new 98 percent control level, 

emissions of PM and HAP would be 

reduced to 0.09 tpy and 0.0045 tpy, 

respectively. The capital cost of the new 

or expanded baghouse would be 

$520,000 with a total annualized cost of 

$119,000 per year (sized for a flow of 

16,500 actual cubic feet per minute). 

The incremental cost effectiveness for 

the upgrade would be $880,000/ton for 

PM and $18,000,000/ton for HAP, 

which is a very high cost effectiveness 

to achieve an additional HAP emission 

reduction of only 0.0067 tpy (0.0113 tpy 

at 95 percent control versus 0.0045 tpy 

at 98 percent control). As the 

commenter noted and quoted, we also 

presented at proposal the very high cost 

effectiveness of requiring small copper 

and other nonferrous foundries (i.e., all 

of the copper and nonferrous foundries 

subject to the rule) to install PM 

controls. We do not believe the cost 

numbers presented here and in the 

proposal are reasonable for requiring 

PM controls for melting furnaces at all 

copper and other nonferrous foundries. 

Contrary to the commenter’s 

assertions, the Agency’s consideration 

of cost effectiveness in establishing 

GACT and the Agency’s views on what 

is a cost-effective requirement under 

section 112(d)(5) are relevant. The U.S. 

Court of Appeals for the DC Circuit has 

stated that cost effectiveness is a 

reasonable measure of cost as long as 

the statute does not mandate a specific 

method of determining cost. See 

Husqvarna AB v. EPA, 349 U.S. App. 

D.C. 118, 254 F.3d 195, 201 (D.C. Cir. 

2001) (Finding EPA’s decision to 

consider costs on a per ton of emissions 

removed basis reasonable because CAA 

section 213 did not mandate a specific 

method of cost analysis). Section 

112(d)(5) does not mandate a specific 

method for considering cost when 

setting GACT standards. 

The commenter has provided no 

information to support its assertion that 

add-on control requirements for small 

copper and other nonferrous foundries 

are generally available for melting 

operations in the two source categories. 

The commenter also failed to provide 

any information indicating that our costeffectiveness determinations were 

unreasonable and likewise failed to 

provide any information concerning the 

economic impacts associated with 

requiring the standards that the 

commenter suggests represent GACT. 

The GACT standards for the three 

foundry area source categories are 

consistent with the requirements of 

section 112(d)(5). 

Comment: One commenter questioned 

the authority for the promulgation of the 

GACT standards. The commenter stated 

it is inconsistent with the CAA section 

112(d)(1) schedules to promulgate this 

new area source standard after the 

expiration of the schedules. According 

to the commenter, it would be more 

appropriate to promulgate GACT 

standards under CAA section 

112(f)(2)(C) to comply with the court 

order. The commenter stated he did not 

think the court intends to order EPA to 

violate the time frame specified by the 

CAA. 

Response: The commenter is 

incorrect. In Sierra Club v. Johnson, 

(D.D.C. 2006), the Court held, among 

other things, that EPA violated a 

mandatory duty by failing to establish 

emission standards for area source 

categories listed pursuant to section 

112(c)(3) and (k)(3)(B) by the date 

specified in the statute. The Court 

issued an order in March 2006, 

requiring the Agency to promulgate 

emission standards for the area source 

categories listed pursuant to section 

112(c)(3) and (k)(3)(B). In August 2006, 

the Court issued an opinion establishing 

deadlines for issuing the standards. By 

issuing emission standards for the three 

area source categories at issue in this 

rule, the Agency is acting wholly 

consistently with the schedule set forth 

in the Court’s August 2006 opinion, as 

amended. The commenter’s thoughts 

about what the Court ‘‘intend[ed] to 

order’’ are wholly irrelevant. The order 

speaks for itself, and the Agency 

continues to comply with the terms of 

the order. 

Moreover, because the requirements 

of the Court’s order are unambiguous, 

the commenter’s thoughts about the 

‘‘appropriate[ness]’’ of promulgating 

GACT standards under CAA section 

112(f)(2)(C) are similarly irrelevant. 

Furthermore, the commenter fails to 

recognize that section 112(f) of the CAA 

addresses the second stage of standard 

setting under section 112, and this 

phase occurs 8 years after the initial 

promulgation of a technology-based 

standard under section 112(d). This rule 

marks the promulgation of a technologybased standard under section 112(d). If 

EPA sought to conduct a residual risk 

analysis for these categories, it would do 

so 8 years after issuance of the section 

112(d) standard. The commenter also 

fails to recognize that residual risk 

review is not required for area sources 

where the standards are based on GACT, 

as is the case in this rule. See CAA 

112(f)(5). 

2. Estimates of Impacts of the Proposed 

Rule 

Comment: One commenter stated that 

EPA did not estimate the emissions 

reductions or cost effectiveness 

associated with the management 

practices that represent GACT. The 

commenter noted that EPA estimated 

the costs associated with the rule, but 

not the emissions reductions, and 

consequently, did not show that GACT 

was cost effective. The commenter 

asked that EPA identify the amount of 

HAP reductions associated with the 

rule, and reconsider the cost 

effectiveness and potential impacts on 

area sources (almost all of which are 

small businesses) if the environmental 

benefits are minimal. 

One commenter stated it was the 

intent of the CAA that the area source 

program results in reductions in 

emissions from area sources of 

hazardous air pollution and expressed 

disappointment that EPA’s proposal 

states ‘‘we estimate that the only 

impacts associated with the proposed 

rule are the compliance requirements 

(i.e., monitoring, reporting, 

recordkeeping and testing).’’ The 

commenter was concerned that such 

proposals are merely paperwork 

exercises and are not responsive to 

Congress’ intent to reduce hazardous air 

pollution when it included the area 

source provisions in the CAA. The 


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commenter recommended that in this 

rule and in future area source proposals, 

EPA incorporate provisions that will 

provide additional public health 

protection from the adverse effects of 

emissions of HAP from area sources. 

One commenter stated that, as 

described in the CAA section 112(k)(1), 

the purpose of the area source program 

is to ‘‘achieve a substantial reduction in 

emissions of hazardous air pollutants 

from area sources and an equivalent 

reduction in the public health risks 

associated with such sources * * *’’ 

According to the commenter, the 

approach laid out by EPA in the 

proposed rule does not reflect this 

purpose and instead focuses entirely on 

cost estimates. The commenter stated 

that the preamble did not contain any 

discussion or estimate of the current 

emissions of HAP from the sources to be 

regulated or the public health risks 

associated with those sources, and that 

there was no discussion of the expected 

benefits of the proposed rule. 

Response: We disagree with the 

commenter’s assertions that EPA did not 

show that GACT for these sources was 

cost effective. We examined all available 

HAP emission reduction approaches 

and determined GACT, considering 

costs, economic impacts, and the cost 

effectiveness of PM control devices (74 

FR 6518 and 6523). Few additional 

quantifiable emission reductions at 

existing affected sources are expected to 

result from the requirements of this rule 

because most of the existing affected 

sources are already implementing the 

process improvements, management 

practices, and control devices required 

by this rule. The requirements in the 

final rule, however, will prevent any 

existing facilities from making changes 

that could result in less stringent 

requirements and an increase in HAP 

emissions. Codifying these requirements 

will result in fewer emissions from new 

affected sources at large copper and 

other nonferrous foundries due to the 

more stringent PM/metal HAP emission 

standards and continuous monitoring by 

bag leak detectors. In addition, we 

expect that the increased attention to 

the implementation of management 

practices, recordkeeping, and the 

monitoring of control devices required 

by the rule will result in additional 

emission reductions because the 

management practices will be applied 

more consistently and uniformly, and 

control device monitoring will result in 

shorter times that fabric filter bags are 

allowed to leak. The management 

practices will also focus more attention 

on the raw materials (metals) being 

melted and will promote pollution 

prevention for reducing HAP emissions. 

Although we are, in large part, 

codifying the status quo, the emission 

reductions we are obtaining, as 

compared to 1990 levels, are significant 

because these facilities have 

implemented controls over the past 20 

years. For example, HAP emissions 

reported to the 1990 Toxics Release 

Inventory (TRI) by 86 foundries in these 

three source categories totaled 18.2 tpy 

compared to 13.6 tpy in 2005 with 132 

plants reporting (i.e., there has been a 

large decrease in emissions even though 

over 50 percent more plants were 

reporting to the TRI). These reductions 

are consistent with the goals of the 

Urban Air Toxics Strategy, which uses 

1990 as the baseline year and measures 

reductions against that baseline. 

Finally, one commenter requests that 

EPA incorporate provisions that will 

provide additional public health 

protection from HAP emissions. In this 

rule, we set technology-based standards 

pursuant to section 112(d)(5) for three 

area source categories. The emission 

control requirements in the final rule 

reflect GACT. Although assessing public 

health risks is not a part of the GACT 

determination, we believe that the rule 

requirements will provide important 

public health protection, as discussed 

above. 

3. GACT Determination for PM 

Comment: One commenter stated that 

it was unclear from the administrative 

record how EPA set the standards for 

control efficiencies and emission limits 

for copper and other nonferrous 

foundries. Based on the limited data 

available to EPA, the commenter claims 

that it is difficult to establish standards 

that foundries can reliably and 

consistently meet. The commenter 

requested that EPA provide its detailed 

analysis on how the control efficiencies 

and emission limits were established to 

allow the commenter to determine if the 

standards appropriately represent 

GACT. 

Response: EPA developed the control 

efficiencies for copper and other 

nonferrous foundries based on available 

operating permit information and 

industry survey responses. The 

summary of survey responses from 

copper and other nonferrous foundries 

is included in the supporting docket 

materials for the proposed rule (Docket 

ID No. EPA–HQ–OAR–2008–0236, 

items 0012, 0021, and 0022). 

EPA developed the alternate emission 

limit from control equipment (baghouse) 

specifications and performance test data 

from other NESHAP background/ 

compliance demonstration information 

involving similar industries (e.g., 

foundries), similar emission sources 

(e.g., melting furnaces), and similar 

control devices (e.g., baghouses). 

Industry stakeholders stated that a 95 

percent standard will be a significant 

(and costly) issue for some facilities to 

demonstrate compliance because it is 

difficult or impossible in some cases to 

sample the inlet according to the test 

method criteria because of the 

configuration of the duct work. 

Sampling the outlet is easier because it 

is a straight duct or stack. We 

investigated alternate forms of an 

emission limit used in similar source 

categories and found that baghouses in 

secondary nonferrous metals processing 

facilities were subject to an emission 

limit of 0.015 gr/dscf for the outlet. 

For existing affected sources, the 

0.015 gr/dscf limit provides at least the 

same level of HAP emission reduction 

as GACT, which requires a 95 percent 

reduction, based on secondary 

nonferrous metals processing project 

data (subpart TTTTTT), as well as 

information and test data from other 

similar industries that show welldesigned and operated baghouses can 

achieve the limit. We proposed this 

limit as an alternative to GACT to 

provide flexibility and to provide a 

more straightforward way of 

demonstrating compliance. 

A similar decision was made for the 

new affected source emission limit, i.e., 

99 percent control efficiency. The 

alternative limit proposed was 0.010 gr/ 

dscf, which was also based on data from 

the secondary nonferrous metals 

processing NESHAP (subpart TTTTTT). 

We proposed an alternative limit for 

affected sources at large copper and 

other nonferrous foundries that provides 

at least the same level of HAP emission 

reduction as the 99.0 percent GACT 

requirement. 

Comment: One commenter requested 

that EPA consider providing another 

alternative emissions limit in the 

proposed regulation, particularly 

because the proposed regulation allows 

control devices other than fabric filters. 

Specifically, the commenter said that an 

emissions limit expressed in ‘‘pounds of 

PM per tons of metal (i.e., copper and 

other nonferrous metal) melted’’ could 

be helpful to many copper and other 

nonferrous foundries in demonstrating 

compliance with the applicable 

emissions limit, especially with a 

control device other than a fabric filter. 

The commenter noted that the emission 

limits in other foundry rules are often 

expressed in these units, and this 

alternative limit could allow foundries a 

more consistent and flexible approach 

to collecting data and demonstrating 

compliance. 


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Response: We agree that alternative 

emission standards provide additional 

flexibility; EPA proposed one alternate 

emission standard based on outlet 

concentrations alone to provide 

additional flexibility. We do not, 

however, have adequate data or a 

reasonable basis that would allow us to 

finalize a production-based limit (e.g., 

‘‘pound per ton’’). In addition, the 

commenter did not provide any data for 

EPA to assess whether a ‘‘pound per 

ton’’ format is appropriate or to 

determine the appropriate and 

equivalent value in that format. 

B. The Source Category Designation 

1. The source categories at issue in 

this rule are defined as only those 

aluminum, copper or other nonferrous 

foundries that melt 600 tpy or more of 

aluminum, copper and other nonferrous 

metals. 

Comment: Six commenters asked that 

EPA revise the proposed rule to base the 

600 tpy clarification of the source 

category only on the amount of 

aluminum, copper, and other 

nonferrous metals melted without 

including the quantity of ferrous metals 

melted. The commenters noted that this 

is a particular concern for foundries that 

are predominantly iron and steel 

foundries already subject to an area 

source standard for that source category 

(40 CFR Part 63, subpart ZZZZZ). The 

commenters stated that iron and steel 

foundries may melt a small amount of 

aluminum, copper, or other nonferrous 

metals, but the large majority of their 

production is ferrous castings. One 

commenter cited an example of a small 

ferrous foundry in Texas that is subject 

to subpart ZZZZZ that melted 900 tons 

of metal in 2008, which included 22 

tons of aluminum and copper. 

According to the commenter, if the 600 

tpy threshold includes the ferrous metal 

melted, this facility would be included 

in the source category subject to the 

standards. The commenter claimed that 

this undue burden would likely force 

the foundry to abandon its small 

nonferrous operations. 

One commenter stated that foundries 

that melt primarily ferrous metals 

should not be included in the source 

category, and therefore subject to the 

rule, because they are not included in 

the Standard Industrial Classification 

(SIC) and NAICS codes used by EPA to 

determine the population of affected 

sources (i.e., ferrous foundries are 

included in separate SIC and NAICS 

codes specific to iron and steel 

foundries). One commenter requested 

clarification of the rule’s scope and was 

concerned that if the rule is 

promulgated as proposed, EPA may 

inadvertently regulate sources that are 

outside the rule’s intended scope (i.e., 

area source iron and steel foundries). 

Consequently, the commenter asked that 

the rule be revised to clarify that it is 

inapplicable to foundries melting 

predominately ferrous metals. 

Another commenter requested that 

the 600 tpy threshold be determined 

separately for aluminum, copper, and 

other nonferrous metals rather than 

from the combined total of all three and 

requested that the rule clarify that the 

threshold is based on actual production 

and not on melting potential or 

capacity. 

Response: EPA based the 600 tpy 

threshold on the facilities in the 1990 

TRI that reported under the SIC codes 

for aluminum, copper, and other 

nonferrous foundries. Foundries melting 

predominantly iron and steel would 

have reported to TRI under different SIC 

codes and were not included in our 

1990 TRI database for the three area 

source categories addressed in this rule. 

Consequently, when determining 

whether an area source meets the 600 

tpy threshold, the source should not 

include the tpy of ferrous metal melted, 

but rather only include the nonferrous 

metal melted (aluminum, copper, and 

other nonferrous metals) in determining 

its annual production. 

In our analysis of the 1990 TRI 

emissions data, we could not 

distinguish the quantities of aluminum, 

copper, and other nonferrous metals 

melted at each facility. We confirmed 

that some of the foundry facilities in the 

1990 inventory melted a combination of 

these metals. Consequently, the 600 tpy 

threshold must be based on the sum of 

aluminum, copper, and other 

nonferrous metals melted at each 

existing affected source, and not based 

on each type of metal melted separately 

as the commenter suggests (i.e., there is 

not a 600 tpy threshold for each type of 

nonferrous metal at a single facility). 

We have clarified that for an existing 

source, the 600 tpy threshold is based 

on the annual metal melt production in 

calendar year 2010 and not capacity. 

However, for a new affected source we 

use the annual metal melt capacity at 

startup because a new affected source 

must comply at startup (if startup occurs 

after the date of publication of the final 

rule in the Federal Register), and at 

startup it would not have any history of 

annual production. 

Comment: One commenter suggested 

that the 600 tpy threshold be based 

solely on the quantity of metals 

containing foundry HAP and not on the 

total amount of metal melted. The 

commenter cited as an example that a 

facility melting 599 tpy of metal 

containing no foundry HAP and 1 tpy of 

metal containing foundry HAP would be 

subject to the rule. On the other hand, 

the commenter stated that a foundry 

melting 599 tons of metal containing 

foundry HAP would not be subject to 

the rule. The commenter suggested that 

EPA reconsider the basis of the 600 tpy. 

Another commenter asked for 

clarification of how the 600 tpy 

threshold should be calculated. Does the 

600 tpy of metal (such as aluminum) 

include any aluminum the facility melts 

regardless of the amount of metal HAP 

(by weight) in the charge material? 

Response: As discussed in the 

proposal, and clarified again in the 

earlier response to comment, the 600 

tpy of metal melted threshold is not an 

applicability threshold. Rather, EPA 

realized that emissions from foundries 

that melt less than 600 tpy were not 

included in the 1990 TRI baseline, 

which is the basis of EPA’s listing of the 

aluminum, copper and other nonferrous 

foundries area source categories. In 

addition, the 600 tpy threshold was 

based on the amount of aluminum, 

copper and other nonferrous foundry 

metal melted regardless of the amount 

of aluminum foundry HAP, copper 

foundry HAP or other nonferrous 

foundry HAP contained in the metal. 

Defining the threshold in this way was 

necessary because the level of detail 

regarding the individual HAP content 

was not available for the facilities in the 

1990 emission inventory. Therefore, as 

the commenter pointed out, the affected 

source at an aluminum foundry that 

melts 599 tpy of aluminum that contains 

no aluminum foundry HAP and 1 tpy of 

aluminum that contains an aluminum 

foundry HAP is subject to this rule. 

Comment: Commenters noted that the 

rule did not specify the baseline year(s) 

for determining the production level to 

compare with the 600 tpy threshold and 

also recommended that EPA address 

annual production fluctuations. For 

example, commenters asked when a 

facility would become subject to the 

rule and when must the facility 

demonstrate compliance if it initially 

melted below 600 tpy, but later in time 

melts over 600 tpy of aluminum, copper 

and other nonferrous metal. One 

commenter suggested that the 

applicability threshold be based on 

production in 2010 or 2011 to be 

consistent with the compliance date. 

Another related question posed by the 

commenter involved the applicability of 

the rule if a foundry initially melted 

over 600 tpy, but in subsequent years 

melted less than 600 tpy due to 

economic factors or other reasons. 

Response: Pursuant to a court order, 

this final rule will be signed by the 


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Administrator by June 15, 2009. We 

expect that the rule will be published in 

the Federal Register in late June 2009, 

in which case the compliance date for 

existing sources would be June 2011 (2 

years after the date of promulgation of 

the final standards). In light of this 

compliance date, we revised the rule to 

require that an existing foundry use the 

annual metal melt production for 

calendar year 2010 to determine 

whether it is in the source category. To 

provide further clarification, we added 

a definition for ‘‘annual metal melt 

production.’’ If the owner or operator of 

an existing foundry increases its annual 

metal melt production after 2010 such 

that it equals or exceeds 600 tpy in a 

subsequent year, the owner or operator 

must notify its permitting authority 

within 30 days after the end of that 

calendar year (e.g., December 2011) and 

comply with the rule requirements 

within 2 years following the end of the 

calendar year. 

If the foundry’s annual metal melt 

production (the total aluminum, copper 

and other nonferrous foundry metal) 

exceeds 600 tpy in a subsequent year, it 

is not automatically subject to the GACT 

requirements of the rule. For example, 

if an aluminum foundry increases its 

annual metal melt production from 525 

tpy to 725 tpy in 2011, it must also melt 

materials containing aluminum foundry 

HAP, as defined in section 63.11556, in 

order to be subject to the rule’s GACT 

requirements. If the aluminum foundry 

does not melt materials that contain 

beryllium, cadmium, lead or nickel in 

amounts greater than or equal to 0.1 

percent by weight (as metal), or contains 

manganese in amounts greater than or 

equal to 1.0 percent by weight (as 

metal), then the aluminum foundry is 

not subject to the GACT requirements. 

If an existing foundry subsequently 

decreases production such that it has an 

annual metal melt production of less 

than 600 tpy, the foundry remains 

subject to the rule. We incorporated this 

requirement into the final rule for 

several reasons. First, we have listed the 

three foundry area source categories 

under CAA section 112(c)(3), and we 

based the listing and definition of the 

categories on those facilities that melted 

at least 600 tpy of aluminum, copper, 

other nonferrous metals, and all 

associated alloys in 1990, regardless if 

they subsequently decreased 

production. Second, existing foundries 

subject to the rule at promulgation (i.e., 

with 600 tpy or greater metal melt 

production) will have prepared a 

management practices plan and 

implemented the management practices. 

If their annual metal melt production 

falls below 600 tpy for any year 

subsequent to 2010, EPA believes it is 

reasonable to expect that they keep their 

management practices plan and 

continue to implement the management 

practices to reduce emissions. Third, 

because EPA learned that the 

management practices are routine 

procedures already implemented at 

most foundries, EPA believes that there 

would be no significant burden for the 

rule to continue to apply if annual metal 

melt production falls below 600 tpy in 

a calendar year. Finally, if foundries 

(specifically, existing affected sources) 

on the borderline of 600 tpy of annual 

metal melt production (or capacity for 

new affected sources) fall above and 

below that level over different years, the 

time-consuming complexity of possibly 

other State or local permit revisions is 

a burden on both the permitting 

authority and the foundry. 

We made clarifications for new 

affected sources that parallel those for 

existing affected sources except that 

annual metal melt capacity is used 

instead of production because new 

affected sources must comply at startup 

(provided startup occurs after the date 

of publication of this rule in the Federal 

Register), and there would be no 

production history at startup. 

C. Subcategorization and Applicability 

Issues 

1. Threshold of 6,000 tpy for Copper 

and Other Nonferrous Foundries 

Comment: Several commenters asked 

that EPA clarify that the 6,000 tpy 

threshold should be determined only 

from the amount of copper and other 

nonferrous metals melted and would 

not include the quantity of aluminum or 

ferrous metals melted at the facility. 

One commenter requested that the 6,000 

tpy threshold be determined only from 

the copper and other nonferrous metals 

that contain the foundry HAP (as 

defined in the rule) rather than the total 

amount of copper and other nonferrous 

metal melted. One commenter provided 

an example of a foundry that melts 

5,000 tpy of iron and 2,000 tpy of 

copper. Under the proposed rule, the 

commenter notes that the furnace would 

have to be equipped with emission 

controls. The commenter claims this 

would not be consistent with EPA’s 

analysis of cost and cost effectiveness in 

deriving the 6,000 tpy threshold because 

it was based on retrofitting baghouses to 

furnaces melting only copper and other 

nonferrous metals. 

Response: The survey results used to 

develop the threshold included facilities 

that were melting copper and other 

nonferrous metals and indicated that 

facilities melting 6,000 tpy or more of 

copper and other nonferrous metals had 

PM emission controls. Although we 

requested data prior to proposal on the 

amount of copper and other nonferrous 

metal containing the specific foundry 

HAP subject to this rule, we did not 

receive information to determine a HAPbased threshold. In addition, the 

analysis of whether to apply PM 

controls to facilities melting less than 

6,000 tpy was based on the costs and 

cost effectiveness of applying PM 

emission controls to foundries melting 

copper and other nonferrous metals, 

resulting in the conclusion that it was 

not cost effective to apply emission 

controls on those melting less than 

6,000 tpy of copper and other 

nonferrous metal. As documented in the 

proposal (see 74 FR 6518), the cost 

effectiveness for applying a baghouse to 

the melting operations at a small copper 

or other nonferrous foundry was 

estimated to be $50,000 per ton of PM 

and $1 million per ton of metal HAP. 

Therefore, we have clarified in the rule 

that the 6,000 tpy threshold is based on 

the total amount of copper and other 

nonferrous metal melted, excluding the 

amount of aluminum and ferrous metals 

melted at the facility. In addition, we 

have added definitions for ‘‘annual 

copper and other nonferrous metal melt 

production’’ and ‘‘annual copper and 

other nonferrous metal melt capacity’’ to 

be used to determine if an affected 

source is subject to the control 

requirements. Therefore, if an existing 

or new affected source melts 6,000 tpy 

or more of copper and other nonferrous 

metal, it must comply with the controls 

for PM/metal HAP. 

Comment: Four commenters asked 

that EPA specify in the rule how the 

6,000 tpy threshold is applied under 

fluctuating production levels over time. 

One commenter suggested that the 

approach used in the iron and steel 

foundry area source rule be 

incorporated to address questions of 

changing production levels and noted 

that those procedures addressed both 

cases in which a foundry is initially 

below the threshold and subsequently 

exceeds it and also the case where a 

foundry subsequently produces at levels 

below the threshold. 

Response: In the final rule, EPA has 

incorporated definitions for ‘‘large 

foundry’’ and ‘‘small foundry.’’ These 

definitions are consistent with the 

subcategorization scheme set forth in 

the proposed rule, which used a 6,000 

tpy metal melting production rate to 

define facility size. We have defined a 

‘‘small foundry’’ as an existing copper 

or other nonferrous foundry with an 

annual copper and other nonferrous 

metal melt production of less than 6,000 


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tpy (or a new copper or other nonferrous 

foundry with an annual copper and 

other nonferrous metal melt capacity of 

less than 6,000 tpy). We have defined a 

‘‘large foundry’’ as a copper or other 

nonferrous foundry with an annual 

copper and other nonferrous metal melt 

production of 6,000 tpy or more (or a 

new copper or other nonferrous foundry 

with an annual copper and other 

nonferrous metal melt capacity of 6,000 

tpy or more). The proposal did not 

discuss fluctuating production levels 

with regard to the 6,000 tpy threshold 

for determining which copper and other 

nonferrous foundries must comply with 

the PM emission limit. EPA has 

reviewed the Iron and Steel Foundry 

Area Source rule (40 CFR 63, subpart 

ZZZZZ). We have incorporated into this 

final rule some of the features of the 

Iron and Steel Area Source rule. For 

example, some of the concepts we 

applied from that rule include 

establishing a baseline calendar year for 

determining annual metal melt 

production, using capacity at startup for 

new affected sources, requiring a 

notification if a small foundry becomes 

a large foundry, and allowing 2 years to 

comply if a small foundry becomes a 

large foundry. Therefore, we revised this 

rule to provide that if the annual metal 

melt production of your existing small 

foundry equals or exceeds 6,000 tons of 

copper and other nonferrous metal 

during a calendar year subsequent to 

2010, you must submit a notification of 

foundry reclassification to the 

Administrator within 30 days and 

comply with the requirements for 

existing large foundries within 2 years 

of the date of the notification. 

However, in this rule, you must 

continue to comply with the 

requirements for large copper and other 

nonferrous foundries in the case of a 

production decrease below 6000 tpy 

after 2010. Because you would have 

already installed the emission control 

device, EPA believes it is reasonable to 

require continued operation of that 

device. EPA further believes it would 

not be reasonable to allow you to turn 

the control device off and not comply 

with the PM emission limit. Our intent 

at proposal was that if a large copper or 

other nonferrous foundry subsequently 

decreases annual copper and other 

nonferrous metal melt production below 

6,000 tpy, it should remain subject to 

the requirements for large copper and 

other nonferrous foundries. We revised 

the rule to state that if your facility is, 

at any time, classified as a large 

foundry, you must continue to comply 

with the PM control requirements even 

if your annual copper and other 

nonferrous metal melt production falls 

below 6,000 tons in subsequent calendar 

years. 

Comment: According to one 

commenter, the proposed rule language 

is not clear regarding whether the PM 

control requirements apply to 

aluminum foundries. The commenter 

would like EPA to clarify that 

aluminum foundries are subject only to 

management practices and not the addon emission control requirements. 

Response: EPA has revised the rule 

language to make it clear that only large 

copper and other nonferrous foundries 

(excluding aluminum) are subject to the 

PM control requirements. The rule’s 

definition for large foundry includes 

only copper and other nonferrous 

foundries. Furthermore, we have 

inserted new definitions for the ‘‘annual 

copper and other nonferrous metal melt 

production’’ and ‘‘annual copper and 

other nonferrous metal melt capacity’’ to 

further clarify that the 6,000 tpy 

threshold applies only to copper and 

other nonferrous metal melt production. 

Therefore, the commenter is correct that 

the PM controls required in the rule are 

not applicable to aluminum foundries. 

3. Material Containing HAP 

Comment: One commenter stated that 

the language at section 63.11544(a)(1) 

should be clarified to set an 

unambiguous threshold for materials 

containing aluminum, copper or 

nonferrous HAP below which the rule 

does not apply. The commenter notes 

that section 63.11544(a)(1) limits 

applicability of the rule to foundries 

using material containing aluminum, 

copper or nonferrous foundry HAP, but 

it expands applicability to include 

foundries that use materials that have 

the ‘‘potential to emit’’ copper foundry 

HAP. The commenter claims that this 

language is contradictory and appears to 

set a de minimis applicability threshold 

based on the definition of material 

containing foundry HAP, then takes 

away the threshold with the catch-all 

‘‘potential to emit’’ language. The 

commenter asked that the language be 

revised to clarify that the rule does not 

apply to foundries using feedstock that 

does not meet the definition of materials 

that contain aluminum, copper, or 

nonferrous foundry HAP. Several other 

commenters provided similar comments 

on the term ‘‘potential to emit.’’ 

One commenter requested that the 

definition of ‘‘material containing 

aluminum foundry HAP’’ be included in 

the ‘‘affected source’’ definition. The 

commenter stated that in reviewing the 

interrelationship of these proposed 

definitions, the proposed language 

defining ‘‘affected source’’ does not 

clearly limit applicability based solely 

on materials content. The commenter 

said that the linkage between the 

‘‘affected source’’ definition and the 

definition of ‘‘material containing 

aluminum foundry HAP’’ is not clearly 

established and the use of the term ‘‘or 

have the potential to emit’’ seems to 

establish an independent applicability 

test that could apply even if the 

materials content is less than the levels 

set forth for ‘‘material containing 

aluminum foundry HAP.’’ To clarify 

applicability, the commenter 

recommended that the applicability in 

proposed section 63.11544, and its 

definition of affected source be revised 

to specifically use the defined term 

‘‘material containing aluminum foundry 

HAP,’’ and either: (1) eliminate the 

reference to ‘‘potential to emit’’ or (2) 

use the conjunctive, rather than the 

‘‘disjunctive’’ preposition in the 

definition (i.e., both requirements 

would need to be satisfied). 

Another commenter interpreted the 

proposal to mean that aluminum 

foundry operations would not be 

covered under the proposed rules, 

including the management practices 

provisions, if they do not use a HAPcontaining material for aluminum 

foundries as defined in the proposed 

rule. The commenter interprets this to 

mean that the use of aluminum foundry 

metal below the defined weight 

percentage HAP content is not subject to 

the rule. 

Response: We agree that the term 

‘‘potential to emit’’ used in this context 

is ambiguous and unnecessary, and we 

have deleted it in the final rule. Our 

intent was that the rule be applicable to 

foundries that melt materials containing 

the aluminum foundry HAP, copper 

foundry HAP, and other nonferrous 

foundry HAP. We have also revised the 

applicability section in the final rule to 

state that the requirements apply to the 

collection of foundry melting operations 

that melt materials containing 

aluminum foundry HAP, copper 

foundry HAP, and other nonferrous 

foundry HAP (see the definitions of 

these terms provided in the rule). As an 

example, if an aluminum foundry 

melted greater than 600 tpy of 

aluminum, and that aluminum 

contained less than 0.1 percent by 

weight of beryllium, cadmium, lead or 

nickel (individually) and contained less 

than 1.0 percent by weight manganese, 

then that foundry would not be subject 

to the rule. 

4. Facilities That Are Not Foundries 

Comment: One commenter stated that 

his facility processes aluminum scrap 

and/or dross to produce aluminum that 


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is used as the raw material in other 

operations. The commenter’s facilities 

produce molten aluminum, aluminum 

sow and/or aluminum ingot. The 

commenter stated that facilities that 

produce sow and/or ingot by pouring 

molten aluminum from furnaces, 

holders or meters into molds are not and 

should not be subject to the proposed 

rule because they are not ‘‘aluminum 

foundries.’’ The commenter noted that 

the sows and ingots produced by these 

facilities are not complex shapes nor are 

they used in processes that require 

specific mechanical properties, 

machinability, and/or corrosion 

resistance. According to the commenter, 

the sows and ingots are used in 

processes as the raw aluminum metal 

that is melted and then cast into 

complex shapes for use in processes 

requiring the listed properties, and the 

company does not produce aluminum 

castings. 

Response: The facility described by 

the commenter that melts scrap metal 

and cast molten metal to produce sows, 

ingots, or billets is a secondary 

aluminum production facility and is not 

an aluminum foundry as defined by this 

rule. We have clarified in the final rule’s 

definitions that a foundry casts complex 

shapes rather than sow and ingot (see, 

for example, definition for ‘‘aluminum 

foundry’’ in section 63.11556), and we 

have stated explicitly in the definitions 

for aluminum foundry, copper foundry 

and other nonferrous foundry that the 

definitions do not include secondary 

metal production. 

Comment: Another commenter stated 

that as currently written, questions of 

applicability will arise as to how the 

rules apply to area sources that may 

include both types of operations 

(aluminum foundry casting and 

secondary aluminum production). 

According to the commenter, most 

secondary aluminum production 

facilities conduct ‘‘casting’’ operations 

directly after the melting of aluminum 

scrap and notes that the proposal’s 

preamble provides some explanatory 

language by describing production 

operations for aluminum and other 

nonferrous foundry casting operations 

as those that ‘‘produce complex metal 

shapes by melting the metal in a furnace 

and pouring the molten metal into a 

mold to solidify into the desired shape.’’ 

The commenter said that this contrasts 

only slightly with ‘‘casting’’ for other 

secondary aluminum production 

facilities where the metal is formed or 

molded into simple shapes, such as 

ingots, sows or billets for shipping or 

further processing. 

The commenter said the proposal 

does not address the nuances of these 

different casting operations and 

therefore does not provide the regulated 

community with sufficient notice 

regarding the rule’s applicability and 

what is needed to comply with the rule, 

and in addition, the rule is subject to 

misinterpretation by permit authorities. 

To address these issues, the commenter 

asked that the rule be revised to make 

clear which MACT rule (40 CFR part 63 

CFR subpart RRR or subpart ZZZZZZ) 

takes precedence for particular 

operations where interpretations of 

applicability may conflict. The 

commenter said that given the 

confusion witnessed frequently with 

permit authorities addressing 

implementation and compliance for the 

secondary aluminum production MACT 

rules, this necessity is even more 

pronounced. The commenter requested 

that the rule be revised and that EPA 

provide an appropriate definition for the 

term ‘‘aluminum castings’’ and also use 

the term ‘‘aluminum castings’’ in the 

definition for ‘‘melting operations’’ in 

section 63.11556. 

Response: The facilities that cast 

molten metal to produce sows, ingots, or 

billets are secondary metal producers 

and are not foundries covered by this 

rule (see definition of aluminum 

foundry in section 63.11556). Secondary 

metal producers do not produce 

complex castings that are final or near 

final products, but instead produce a 

metal product that is a simple shape 

that is shipped to other facilities 

(including foundries) where it is remelted and transformed into final 

product. We have revised the 

definitions in the final rule to make a 

clearer distinction between secondary 

metal production (such as secondary 

aluminum facilities that are subject to 

40 CFR part 63, subpart RRR) and 

aluminum foundries. We do not believe 

there is any conflict or overlap with 

subpart RRR because that rule does not 

regulate metal HAP emissions from 

aluminum foundries as this rule does. It 

is possible for an aluminum foundry to 

be subject to both rules, but there would 

be no overlap in the requirements 

because the two rules apply to different 

HAP. 

Comment: One commenter asked that 

EPA clarify that 40 CFR part 63 subpart 

RRR sources are not included in this 

NESHAP. The commenter stated that 

there may be confusion because, in 

subpart RRR (the NESHAP for 

secondary aluminum production 

facilities), EPA included certain area 

sources in that major source rule. 

According to the commenter, in the 

secondary aluminum production rule, 

EPA determined that furnaces, 

including area sources, melting clean 

charge, internal scrap, runaround scrap, 

or customer returns are not subject to 

the requirements of Subpart RRR 

because the use of clean charge 

materials results in sufficiently low 

emissions. Therefore, the commenter 

requested that furnaces melting clean 

charge, internal scrap, runaround scrap 

or other customer returns that are area 

sources subject to 40 CFR part 63 

subpart RRR (but excluded from the 

requirements) also be excluded from 

applicability of this rule because EPA 

has already considered the emissions 

from these furnaces in subpart RRR. 

Another commenter seeks 

clarification on aluminum foundry 

source category applicability relative to 

the secondary aluminum MACT 

standards. The commenter stated the 

language in the proposal preamble 

addressing the source category change 

from secondary aluminum production 

to aluminum foundries is confusing and 

appears to be subject to potentially 

conflicting interpretations. According to 

the commenter, the language can be 

interpreted to mean that the secondary 

aluminum production source category, 

for which there are existing MACT 

standards under 40 CFR part 63 subpart 

RRR, has been changed. The commenter 

said this distinction is of particular 

importance since the secondary 

aluminum production MACT standards 

also apply in part to area sources. 

Response: This rule, subpart ZZZZZZ, 

does not apply to secondary aluminum 

production facilities, including those 

secondary aluminum production 

facilities that are area sources. 

Furthermore, EPA did not intend any 

overlap or conflict between 40 CFR part 

63 subpart RRR and this rule. Certain 

types of area source aluminum 

foundries are subject to a dioxin 

emission limit under subpart RRR, but 

subpart RRR has no metal HAP or PM 

emission limits that would apply to 

these area sources. Consequently, there 

are no aluminum foundries that can be 

addressed solely by subpart RRR, and 

this foundry area source rule (40 CFR 

part 63 subpart ZZZZZZ) is necessary to 

regulate the metal HAP emissions from 

aluminum foundries. 

The change in the source category 

name in this rule does not change the 

source category name for secondary 

aluminum plants subject to subpart 

RRR. The effect of the change in name 

is to list aluminum foundries as an area 

source category for which standards 

must be developed, and to remove 

secondary aluminum facilities as a 

source category for which standards 

must be developed. We explained in the 

proposal preamble, 74 FR 6511, that we 

incorrectly named the ‘‘Secondary 


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Aluminum Production’’ category in the 

area source category listing notice, and 

the emissions used in the listing were 

from aluminum foundries (see also the 

EPA memorandum cited in the proposal 

preamble, dated November 26, 2002, 

which explains this error at Docket ID 

No. EPA–HQ–OAR–2008–0236, Item 

0011). 

Comment: One commenter stated his 

plant produces beryllium-copper alloys, 

copper alloys that do not contain 

beryllium, and beryllium alloys that do 

not contain copper. The commenter 

noted that his plant is subject to the 

NESHAP ambient air quality standard 

for beryllium, which is set forth in 40 

CFR part 61.32(b). The commenter 

requested that EPA clarify that the 

proposed rule for copper and other 

nonferrous foundries does not apply to 

his facility because it is already subject 

to part 61 due to emissions of beryllium. 

The commenter requested that EPA 

expressly state in the preamble to the 

final rule that facilities currently subject 

to part 61 are not covered by the 

proposed copper and other nonferrous 

foundry rule. To make this clear in the 

rule itself, the commenter suggested that 

EPA exempt any foundries located at a 

facility that produces beryllium and/or 

beryllium alloys and is covered by 40 

CFR part 61.32 through 61.34 which 

coverage, of course, mandates title V 

permitting for that facility. 

Another commenter asked for 

clarification on whether their facility 

would be classified as a ‘‘foundry’’ and 

subject to the rule since the facility 

melts copper scrap in a gas-fired melting 

furnace and is a metal powder producer 

with main product lines consisting of 

copper, bronze and tin powders. 

Response: The information supplied 

by the commenters indicates that these 

facilities may be secondary metal 

production facilities that do not cast the 

molten metal into complex shapes that 

are final products. As discussed in 

response to an earlier comment, we 

have clarified the distinction between 

foundries and secondary metal 

producers. We cannot state in the 

preamble and rule that these facilities 

are not subject to the rule, and any 

questions related to applicability should 

be discussed with the permitting 

authority (i.e., the State agency if 

delegated or the EPA regional office if 

not delegated). In response to the 

comment about already being subject to 

a part 61 standard, we confirm that it is 

possible for an area source to be subject 

to both a part 61 standard and an area 

source standard. 

Comment: One commenter asked how 

‘‘nonferrous’’ is defined or interpreted 

by EPA and whether it is reasonable to 

infer that ‘‘nonferrous’’ excludes any 

iron-containing metal (e.g., nickel alloy 

containing 10 percent iron would be 

considered ferrous). Another commenter 

stated that because many foundries that 

pour nonferrous metals also pour 

ferrous metal alloys in the same 

building, it should be emphasized that 

this rule is not intended to apply to 

ferrous alloys and suggested that the 

word ‘‘nonferrous’’ should be added 

before the word ‘‘material’’ in the 

definition of ‘‘material containing 

copper foundry HAP.’’ 

Response: The types of facilities 

described by the commenters are 

nonferrous foundries if they melt any 

nonferrous metals (other than copper or 

aluminum or copper based alloys) 

unless their melting operations have 

been identified as a ferrous melting 

operation that is subject to the area 

source standard for iron and steel 

foundries (40 CFR part 63, subpart 

ZZZZZ). The other nonferrous foundry 

(i.e., other than copper and aluminum 

foundries) source category is comprised 

of facilities identified under NAICS 

331528, Other Nonferrous Foundries 

(except Die-Casting): ‘‘This U.S. 

industry comprises establishments 

primarily engaged in pouring molten 

nonferrous metals (except aluminum 

and copper) into molds to manufacture 

nonferrous castings (except aluminum 

die-castings, nonferrous (except 

aluminum) die-castings, aluminum 

castings, and copper castings). 

Establishments in this industry 

purchase nonferrous metals, such as 

nickel, lead, and zinc, made in other 

establishments.’’ Examples are 

foundries (excluding die casting) 

melting zinc and zinc-base alloys, nickel 

and nickel-base alloys (including 

ferrous metal), magnesium and 

magnesium-base alloys. However, we 

have not defined the different types of 

foundries by NAICS because a facility 

could have multiple types of foundries 

and NAICS. We specifically define 

aluminum, copper, and other 

nonferrous foundry in the rule, and a 

nonferrous foundry could be co-located 

with an iron and steel foundry. 

Comment: One commenter stated that 

the proposed definition of ‘‘copper 

foundry’’ should be revised to exclude 

primary copper smelters, refineries and 

stand-alone rod mills. The commenter 

stated that EPA should make clear that 

the definition does not include the 

melting of copper (scrap copper, anode 

copper or cathode copper) at primary 

copper smelters and refineries, and 

pouring into casting machines to 

produce anode copper, copper rod and 

cake. 

Response: EPA has revised the 

definition of copper foundry, stating 

that ‘‘this definition does not include 

primary or secondary metal producers 

that cast molten copper to produce 

simple shapes such as sows, ingots, 

billets, bars, anode copper, rods or 

copper cake.’’ 

D. Management Practices 

1. Purchased Scrap Requirements 

Comment: One commenter stated that 

the rule provides that aluminum, 

copper, and other nonferrous foundry 

area sources that are subject to the rule 

shall ‘‘purchase only metal scrap that 

has been depleted (to the extent 

practicable) of aluminum foundry HAP, 

copper foundry HAP, or other 

nonferrous foundry HAP (as applicable) 

in the materials charged to the melting 

furnace.’’ Because foundries also charge 

ingots, sow, alloys and other ‘‘clean 

charge’’ materials into the melting 

furnace, the commenter said that EPA 

should clarify that this provision also 

includes these materials. According to 

the commenter, in purchasing these 

materials, a foundry may have content 

specification for its casting application 

and product that should be sufficient to 

meet the ‘‘deplete’’ criterion of this 

management practice, and other 

references to ‘‘metal scrap’’ should be 

broadened to include these ‘‘compliant’’ 

clean charge materials. 

Another commenter quoted the 

proposed rule as stating that foundries 

are to ‘‘purchase only metal scrap that 

has been depleted (to the extent 

practicable) of * * * HAP.’’ Because the 

specifications of many nonferrous alloys 

contain metallic HAP, the commenter 

recommends the rule be changed to 

state ‘‘excluding metallic HAP that are 

required to be added for the production 

of alloyed castings.’’ 

One commenter recommended the 

HAP content requirement for melting 

metal scrap be deleted or substantially 

modified to avoid a domestic 

prohibition against recycling valuable 

metal scrap. The commenter stated that 

the proposal requires that covered 

foundries purchase ‘‘only metal scrap 

that has been depleted (to the extent 

practicable)’’ of the identified HAP, but 

said that this purchase requirement is 

vague and the word ‘‘deplete’’ is not 

defined. The commenter said that it is 

important for EPA to make this 

clarification to avoid the risk that the 

depletion requirement will be 

spuriously interpreted as prohibiting the 

remelting of scrap that contains HAP in 

excess of low levels or even trace 

amounts because it would mean that 

some metal scrap could only be buried 


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or exported for remelting outside the 

U.S. The commenter noted that the 

proposal recognizes the importance of 

recycling by providing that the 

management practice requires the use of 

scrap depleted of HAP metals except 

where the scrap is purchased 

specifically for its HAP metal content 

for use in alloying. The commenter 

asked that this provision be broadened 

by changing the phrase ‘‘for use in 

alloying’’ to ‘‘for use in the production 

of metal or alloys.’’ According to the 

commenter, this change is appropriate 

and needed because metal HAP in scrap 

can be valuable in the production of a 

metal as well as of an alloy. 

One commenter recommended that 

EPA amend definitions in the proposed 

rule to align the applicability with 

subpart RRR. The commenter stated that 

the preamble to the rule indicates that 

GACT is considered the use of ‘‘clean 

charge’’ but, rather than defining that 

term, EPA requires that affected sources 

purchase or use only metal scrap that 

has been ‘‘depleted of HAP metals (to 

the extent practicable) charged to the 

melting furnace.’’ According to the 

commenter, EPA does not clearly define 

clean charge or explain what it means 

to deplete material of HAP metals ‘‘to 

the extent practicable.’’ The commenter 

is concerned that the definition of 

‘‘depleting to the extent practicable’’ 

could change over time, leading to the 

proposed standard becoming a moving 

target for sources. Moreover, the 

commenter is concerned that internal 

scrap, which is permissible to use under 

subpart RRR, continue to be usable 

without any additional conditions 

under this proposed rule. To that end, 

the commenter requests that EPA revise 

the definition of ‘‘material containing 

aluminum foundry HAP’’ to clarify that 

clean charge, internal scrap, runaround 

scrap, and customer returns do not fall 

within that definition. 

The commenter recommended adding 

this sentence to the definition: ‘‘For 

purposes of this subpart the following 

materials are not material containing 

aluminum foundry HAP—clean charge, 

internal scrap, runaround scrap, or 

customer returns, as defined in 

§ (section) 63.1503.’’ The commenter 

said another way of addressing this 

concern would be to clarify in section 

63.11550 that use of clean charge, 

internal scrap, runaround scrap, or 

customer returns as defined in section 

63.1503 of subpart RRR, constitutes 

compliance with the requirements of 

this rule by adding this sentence: 

‘‘Purchase or use of clean charge, 

internal scrap, runaround scrap, or 

customer returns, as defined in 

§ 63.1503 constitutes compliance with 

the requirement of this subparagraph to 

deplete a material of aluminum foundry 

HAP.’’ 

Response: Our intent was that 

purchased metal scrap be depleted to 

the extent practicable of HAP 

contaminants, except when the HAP 

metal is an important specified 

component in the final casting. We did 

not intend for this provision to apply to 

ingots, sows, and alloys (they are not 

metal scrap), nor did we intend it to 

apply to internal scrap, runaround 

scrap, and customer returns (they are 

not purchased). We have clarified the 

final rule by stating that the provisions 

relating to the purchase of only metal 

scrap do not apply to ‘‘material that is 

not scrap (e.g., ingots, alloys, sows) or 

to materials that are not purchased (e.g., 

internal scrap, customer returns)’’. 

We acknowledged at proposal that 

certain types of scrap metal containing 

HAP were necessarily purchased to 

meet alloy specifications. We have 

clarified the management practices in 

the final rule that purchased metal scrap 

must be depleted to the extent 

practicable of HAP metals except when 

the HAP metal is needed to meet 

specifications for the casting. We have 

also added a recordkeeping requirement 

for documentation that the HAP metal is 

in the specifications for the cast metal 

product. 

Comment: One commenter suggested 

that EPA eliminate records for ‘‘use’’ 

and focus solely on ‘‘purchase.’’ The 

commenter said the proposed rule 

requires facilities to purchase only 

metal scrap that has been depleted to 

the extent practicable of the relevant 

HAP. However, the commenter notes 

that the recordkeeping and labeling 

requirements in the proposed rule refer 

to ‘‘purchase and use’’ of such scrap. 

The commenter is concerned that the 

insertion of the word ‘‘use’’ might be 

misread to require tracking of use after 

metal enters the facility even though he 

understands that not to be EPA’s intent. 

The commenter said that EPA has 

appropriately determined that this 

aspect of the standard should apply at 

the point of purchase (i.e., entry to the 

facility) as the most effective way of 

assessing compliance and, after that 

point, the ‘‘usage’’ is not relevant to 

compliance. The commenter 

recommends that EPA delete the word 

‘‘use,’’ or if that word is to remain, 

change the phrasing to ‘‘purchase for 

use.’’ 

Response: We revised the reporting 

requirements to be consistent with the 

management practice provision, which 

stated ‘‘purchase only metal scrap 

* * *,’’ by deleting the words ‘‘and 

use’’ in the reporting requirements as 

suggested by the commenter. 

Comment: One commenter requested 

that EPA clarify that the alloy exception 

for purchased scrap in section 

63.11550(a)(2) also applies to nickel or 

other HAP. 

Response: The exception for ‘‘metal 

scrap that is purchased specifically for 

its HAP metal content for use in 

alloying’’ (alloy exception) applies to 

any aluminum foundry HAP, copper 

foundry HAP and other nonferrous 

foundry HAP. 

Comment: One commenter stated that 

the rule has a potentially adverse effect 

upon the beneficial reuse of metal scrap 

and asked that EPA consider not 

imposing the scrap purchase 

requirement upon those furnaces which 

are subject to the PM emission and 

control efficiency requirements. 

According to the commenter, these 

highly-controlled and closely-monitored 

furnaces are where EPA should most 

strongly encourage the melting of metal 

scrap and that EPA can encourage this 

practice by exempting these furnaces 

from the scrap purchase requirement 

and their attendant burdens. The 

commenter said that EPA can 

appropriately do so because these 

furnaces are the ones that are subject to 

the additional emission and control 

efficiency requirements, which make 

the scrap purchase requirement 

redundant and therefore unnecessary. 

Response: Our analysis indicated that 

the management practices in the 

proposed rule represent GACT for all 

furnaces, even for those melting 

furnaces equipped with efficient 

emission controls. We expect careful 

attention to purchasing scrap metal, 

which has been depleted to the extent 

practicable of HAP metals that are not 

needed in the final casting, and use of 

covers during melting will reduce 

emissions at all melting operations. 

Consequently, we are requiring the use 

of management practices, including the 

limitations on scrap metal, at all of the 

affected sources, even if the furnaces are 

equipped with control devices for PM 

and metal HAP. 

2. Covers 

Comment: One commenter 

recommended the following revision to 

the requirement to use covers: 

Cover or enclose each melting furnace that 

is equipped with a cover or enclosure during 

the melting operation to the extent 

practicable (e.g., except for standard foundry 

operating practices such as when access is 

needed for charging, alloy addition, tapping, 

ladling, fluxing, slagging/drossing, 

temperature measurement, observation). 


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The commenter also asked that EPA 

make clear that this parenthetical list of 

practices is illustrative, and is not meant 

to be exclusive or limiting in any way. 

The commenter suggested it would be 

helpful to have an additional example to 

address the situation in which a coverclosing mechanism fails and the cover 

must remain open, or partially open, 

until maintenance can be performed 

within a reasonable period. As an 

example, the commenter said one 

copper foundry reported that it would 

be impractical to cover and uncover a 

melting furnace continually for its 

permanent mold operations that ladles 

the metal into molds as many as 35 

times in an hour. 

One commenter stated that the rule 

should be revised to clarify 

requirements during periods that coverclosing mechanisms fail. The 

commenter said that occasionally the 

closing mechanism on a cover will jam, 

requiring maintenance to correct the 

problem, and these periods should be 

included as times during which it is not 

practicable to close the cover. 

Another commenter suggested adding 

to the rule other examples of opening a 

cover on the melting furnace and to 

state that other examples include, but 

may not be limited to, ramming, 

scraping, fluxing, slagging, sampling, 

and temperature taking. 

Response: The commenter correctly 

quoted the proposed rule, but we 

believe the commenter misreads the 

management practices requirements and 

that the term ‘‘to the extent practicable’’ 

addresses the concerns raised by the 

commenters. We cannot include every 

possibility in the rule of when it might 

be necessary to not use the cover. 

However, we have added the phrase 

‘‘including but not limited to’’ to the 

examples in the rule to indicate that the 

list is not all inclusive. 

3. Other Management Practices 

Comment: One commenter said that 

foundries subject to the proposed 

regulation are required to prepare and 

operate pursuant to a written 

management practices plan and that the 

plan must include the management 

practices required by the rule, as well as 

‘‘any other management practices that 

are implemented at the facility to 

minimize emissions from melting 

furnaces.’’ The commenter stated that 

foundries that implement additional 

management practices to minimize 

emissions from melting furnaces should 

not have additional regulatory 

requirements imposed on them through 

the written management plan because a 

foundry that implements an additional 

management practice that results in 

reduced emissions from the melting 

furnace could be penalized if the 

practice is not included in the written 

management practices plan. The 

commenter believes such a result is 

unreasonable, and instead EPA should 

change the regulatory language to state 

that a facility may include additional 

management practices that minimize 

emissions from melting furnaces in the 

written management practices plan. 

Response: We proposed to require the 

use of two management practices. We 

are finalizing those management 

practices in this rule, and they must be 

in the management practices plan. 

Although owners and operators can 

include additional requirements in their 

management practices plan, they are not 

required to do so by this rule. If, 

however, additional management 

practices are included in the plan, the 

owner or operator could be held 

responsible for them to the extent they 

are not followed. See section 11550(a)(3) 

in the final rule. 

E. Definitions 

Comment: One commenter requested 

that EPA add a definition of ‘‘deviation’’ 

for purposes of this rule so it is clear to 

sources when they need to report. 

Because this is an area source rule, the 

commenter believes that sources may 

not be subject to part 70 and, in any 

event, may not be familiar with 

deviation reporting, and that EPA 

should explain that a deviation occurs 

if the facility fails to meet applicable 

standards. 

Response: We agree that a definition 

of ‘‘deviation’’ is needed, and we have 

added the definition that has been used 

in other NESHAP, such as the area 

source standard for iron and steel 

foundries (40 CFR 63, subpart ZZZZZ). 

Comment: Two commenters stated 

that EPA should clearly define in the 

rule that the affected source is a 

‘‘melting operation.’’ The commenters 

stated that the affected source is defined 

in the preamble as ‘‘* * * foundry 

melting operations (including all the 

various types of melting furnaces at the 

affected foundry) * * *’’ However, the 

commenters said that the affected 

source does not appear to be defined 

within the rule. 

Response: We agree that the rule 

language should specify what the 

affected source is, and we have stated 

directly in the final rule that the affected 

source is the collection of all melting 

operations at the facility. 

Comment: One commenter asked to 

see clearer distinctions in the rule 

between the requirements for ‘‘large’’ 

foundries (above 6,000 tpy), ‘‘small’’ 

foundries (less than 6,000 tpy, but above 

600 tpy actual), and ‘‘exempt’’ foundries 

(below 600 tpy actual). 

Response: We have clarified the final 

rule, as the commenter suggested, and 

inserted definitions for ‘‘large’’ and 

‘‘small’’ foundries that are subject to 

different requirements. It is important to 

recognize, however, that foundries with 

an annual metal melt production less 

than 600 tpy in calendar year 2010 are 

not exempted from the rule, but rather 

these foundries are not included in the 

source category, as discussed above in 

Section VI.B., and, therefore, not subject 

to the management practices, 

recordkeeping and other requirements 

of this final rule. In addition, it is also 

important to note that these rule 

requirements will not apply to these 

foundries so long as their production 

after calendar year 2010 remains below 

600 tpy. 

Comment: One commenter suggested 

that EPA add a definition of ‘‘die 

casting’’ to the rule to help clarify what 

operations are not applicable to the rule 

and asked that EPA also clarify the 

applicability of permanent mold casting, 

including ‘‘low pressure permanent 

mold casting’’ and ‘‘vacuum permanent 

mold casting’’ operations. 

Another commenter asked for 

clarification of applicability when 

melting furnaces for die casting 

operations, which are not part of the 

source category, are co-located with 

aluminum, copper or other nonferrous 

foundry melting furnaces that are 

included in the source category. This 

commenter also requested a definition 

of ‘‘die casting.’’ The commenter also 

stated that it would be helpful for EPA 

to define ‘‘aluminum die casting 

operations,’’ and, for clarity, to make a 

conforming change to its definition of 

‘‘aluminum foundry’’ using this defined 

term. The commenter suggested a 

modified version of the NAICS 

definition: ‘‘aluminum die casting 

operations mean operations included 

under the Standard Industrial 

Classification code 3363 and NAICS 

331521. For purposes of this subpart, 

aluminum die casting operations 

includes low-pressure injection and 

high-pressure injection die casting 

process methods’’ and ‘‘aluminum 

foundry means a ‘‘facility that melts 

aluminum and pours molten aluminum 

into molds to manufacture aluminum 

castings (except aluminum die casting 

operations).’’ 

Response: We agree that ‘‘die casting’’ 

should be defined and have done so in 

the final rule using the NAICS 

definition, which specifically states 

‘‘under high pressure’’ and does not 

include ‘‘under low pressure,’’ as 

suggested by the commenter. With 


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regard to co-located operations, if 

melting operations for die casting and 

other types of casting are co-located, 

melting operations dedicated to die 

casting are not subject to this rule. 

However, melting operations that serve 

both types of casting operations are 

subject to the rule. 

In response to the clarification on 

permanent mold casting, the rule 

applies to facilities using permanent 

mold casting because it is not die 

casting. 

F. Monitoring, Reporting and 

Recordkeeping 

Comment: Two commenters noted 

that records must identify the date and 

time of each melting operation; 

however, many foundries do not record 

this level of detail and are not 

configured to record this level of detail. 

In addition, the commenter said the 

benefit of such recordkeeping detail is 

not apparent and requested that EPA 

remove the requirement for recording 

the time of each melt event. 

Two commenters requested that the 

reporting and recordkeeping be 

simplified and not required on a per 

melt basis. The commenter stated that 

his facility is subject to title V 

permitting requirements, and that the 

proposal’s monitoring, recordkeeping 

and reporting requirements are based on 

EPA’s expectation that the furnaces 

being regulated would not be subject to 

title V permit requirements. The 

commenter believes that overlaying the 

proposal’s requirements on his plant 

would produce a complexity and added 

costs without any added benefits and 

stated that this is why EPA has 

proposed to exempt these foundries 

from title V permitting. 

Another commenter claimed that 

demonstrating compliance with this 

management practice can also be 

unnecessarily burdensome because the 

rule states that a foundry ‘‘must keep 

records to document conformance with 

the management practice plan’’ and that 

the records ‘‘must identify each melting 

furnace equipped with a cover or 

enclosure, the date and time of each 

melting operation, and that the 

procedures in the management practices 

plan were followed for each melting 

operation.’’ According to the 

commenter, this recordkeeping 

requirement is too onerous for area 

source foundries, so much so that some 

foundries could be forced to have one 

full-time employee dedicated to this 

single regulatory requirement. 

As proposed, the commenter said this 

requirement would be a serious 

disincentive for foundries to have 

covers or enclosures on their melting 

furnaces, because melting furnaces that 

are not equipped with covers and 

enclosures are in compliance with this 

management practice and have no 

recordkeeping requirements at all. The 

commenter continued by saying that 

such a result is counterproductive, and 

regulations should provide foundries 

with incentives to install covers and 

enclosures rather than adding regulatory 

burdens to those that already have them 

installed. The commenter recommended 

that EPA streamline the recordkeeping 

requirement for covers and enclosures 

to state that the facility shall 

demonstrate that it follows the standard 

foundry operating practices for covers 

and enclosures that are included in its 

written management practices plan. 

If EPA adopts the proposed approach 

discussed above, two commenters asked 

that EPA clarify that records of each 

time the furnace is opened and charged 

are not required because the proposed 

rule is ambiguous on this point. An 

alternative approach suggested by the 

commenter would be to require monthly 

inspections to verify that the covers are 

closed at the appropriate times during 

the melting operations. According to the 

commenter, given that sources already 

have a strong incentive to close covers 

on furnaces during operations due to 

OSHA and energy conservation 

concerns, a periodic check of operations 

is certainly sufficient to provide an 

assurance of compliance. 

One commenter was concerned that 

sources will be required to record and 

report deviations from the 

recordkeeping requirements even 

though the covers were likely closed. 

According to the commenter, even with 

EPA’s suggestion that checklists can be 

used, at a facility that does not have an 

extensive staff, an operator may fail to 

‘‘check the box’’ even though the 

operator is following the good 

management practice of closing the 

cover that the facility has always used. 

The commenter said that these types of 

deviations may make a facility appear as 

though it is violating the standard even 

though it is substantively compliant. 

The commenter stated that a monthly 

inspection approach, on the other hand, 

will avoid this paperwork issue while 

still ensuring that facilities routinely 

comply with the rule. The commenter 

provided specific recommendations for 

revising the proposed rule language to 

address their recordkeeping concerns. 

Response: After considering the 

numerous comments on the burden of 

the proposed recordkeeping 

requirements, we agree that the 

requirements can be streamlined and 

still be effective. Based on the 

comments provided, EPA agrees that the 

burden to record the time of each 

melting operation and document that 

the management practices for covers 

were followed for each melting 

operation may require significant 

additional labor to implement. We have 

revised the rule to require that the 

owner or operator inform their 

appropriate operating personnel of the 

applicable management practices, 

perform monthly inspections to ensure 

that they are being followed, and 

maintain records documenting 

conformance with the management 

practices plan. The rule no longer 

requires records for the time of each 

melting operation and documentation 

that covers were used during each melt. 

Comment: One commenter suggested 

that EPA consider a notification for 

copper and other nonferrous foundries 

to determine their production level 

above or below the 6,000 tpy threshold 

because such a notification would help 

to clarify which foundries are subject to 

the applicable emissions limits and 

monitoring requirements. 

Response: We have revised the rule to 

require sources to indicate whether they 

are a small or a large foundry in the 

Notification of Compliance report. 

Comment: One commenter said that 

EPA appears to be requiring all new 

sources equipped with a fabric filter to 

install, operate, and maintain a bag leak 

detection system, but that does not 

appear to be consistent with rule 

development documents contained 

within the docket. The commenter 

asked that EPA clarify that only new 

affected sources at copper foundries or 

other nonferrous foundries that melt 

6,000 tpy or greater of metal would be 

required to operate bag leak detection 

systems. 

Response: We have made a minor 

revision to the rule to further clarify that 

only new affected sources at a large 

foundry, defined as a copper or other 

nonferrous foundry with an annual 

copper and other nonferrous metal melt 

capacity of 6,000 tpy or greater, would 

be required to install and operate bag 

leak detection systems. Owners or 

operators of existing affected sources are 

not required to install a bag leak 

detection system, although they could 

choose to install one as a method of 

monitoring in lieu of visual emission 

observations. 

Comment: Two commenters requested 

clarification on the proposed regulatory 

language that the monitoring 

requirements in section 63.11552 are 

applicable only to copper and other 

nonferrous foundries subject to the PM 

emissions limits and that have 

emissions controlled with a fabric filter. 

Other commenters said that the 


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proposed regulation states that a 

foundry subject to this provision ‘‘must 

conduct visible monitoring of the 

monovent or fabric filter outlet stack(s) 

for any visible emissions.’’ The 

commenters request that EPA clarify 

this provision because the term 

‘‘monovent’’ is not common to the metal 

casting industry, and one commenter 

recommended deleting the term 

altogether, or if it is kept, it should be 

defined. One commenter also said that 

if this requirement is to monitor VE 

from a stack associated with a melting 

furnace, then the reference to 

‘‘monovent or fabric filter outlet 

stack(s)’’ is too limiting because it does 

not include other add-on control or 

point source discharge options for 

copper and other nonferrous foundries. 

The commenter requests that EPA 

clarify this provision to specify the 

point of monitoring for VE. The 

commenter noted that the proposed 

regulation provides further confusion 

with the reference to ‘‘fugitive 

emissions,’’ which is not consistent 

with the requirements discussed above 

that require monitoring of VE from 

outlet stacks. 

One commenter stated the monitoring 

requirements contain language 

regarding the observance of ‘‘visible 

fugitive emissions’’ relative to visual 

monitoring and requires visual 

monitoring of a monovent or fabric filter 

outlet stack(s) for any VE. The 

commenter stated since it appears that 

the intent is to require visual monitoring 

of the outlet of a baghouse, the use of 

the term ‘‘fugitive’’ would not be 

appropriate based on the definition of 

‘‘fugitive emissions.’’ 

Response: We have clarified the VE 

monitoring requirements in the final 

rule to address the commenters’ 

concerns. If an owner or operator of a 

large copper or other nonferrous 

foundry with an existing melting 

operation chooses to meet the PM 

standards using fabric filters, then the 

owner or operator must conduct VE 

monitoring. Monitoring the VE is a 

method to ensure that the fabric filters 

used to control PM emissions operate 

properly on a continuing basis. The VE 

monitoring is required only for fabric 

filters at existing large foundries (i.e., 

copper or other nonferrous foundries 

that melt 6,000 tpy or more of material 

containing a copper foundry or other 

nonfoundry HAP collectively). In the 

alternative, owners or operators may 

install a bag leak detection system on 

the fabric filter system as a way of 

ensuring that it is operating correctly. 

We have deleted the term ‘‘fugitive 

emissions’’ and ‘‘monovent’’ from the 

monitoring requirements and revised 

the rule to require that the owner or 

operator must look at the discharge 

point(s) of the fabric filter for any VE. 

Depending on the type and 

configuration of the fabric filter, the 

discharge point(s) could be a single 

stack, multiple stacks, monovent, or 

other location. 

Comment: One commenter stated that 

the rule should not be more restrictive 

than the existing individual State 

permits in regard to VE and 

recommended that EPA change the 

language in the rule that says ‘‘if the 

visual monitoring reveals the presence 

of any VE * * *’’, to replace the term 

‘‘any’’ with ‘‘abnormal.’’ 

Response: Based on our historical 

experience and the precedent used in 

other rules (e.g., the area source 

standard for ferroalloys in 40 CFR part 

63, subpart YYYYYY), a properly 

designed and operated fabric filter will 

not release any VE under normal 

operating conditions. The use of the 

term ‘‘abnormal’’ suggests that some VE 

are acceptable. We continue to require 

that the fabric filter outlet (discharge) be 

observed for any VE, and if VE are 

observed, corrective action should be 

taken to repair the cause of the 

emissions. 

Comment: One commenter said that 

the proposed regulations provide that a 

facility subject to daily VE monitoring 

can switch to weekly VE monitoring 

after 90 consecutive days of no VE 

recorded. The commenter stated that 

demonstrating no VE for 5 consecutive 

days should be sufficient to allow 

weekly VE monitoring because that 

period of time would show that the 

fabric filter had been properly designed 

and had no VE. The commenter claimed 

that generally if VE are not observed in 

a 5 consecutive day period, then VE are 

unlikely to be observed at all (based on 

the minimal operational changes that 

are expected from most foundries). 

According to the commenter, weekly VE 

monitoring is also less burdensome on 

the foundry and would, in most cases, 

provide adequate safeguards that the 

baghouse is functioning properly. 

Response: We have reconsidered the 

requirement that an owner or operator 

must conduct daily observations with 

no VE for 90 consecutive days of 

monitoring prior to reducing the 

observation frequency to weekly, and 

we agree that a shorter time period 

before reducing to weekly observations 

would be just as effective. We have 

revised the final rule to allow weekly 

observations after 30 consecutive days 

of observations with no VE because it 

provides assurance that the baghouse 

has been properly designed and 

properly installed as shown by 30 

consecutive days of operation with no 

visible leaks. 

Comment: One commenter stated that 

the time for taking corrective action in 

response to a bag leak detection alarm 

must be increased for reasons of worker 

safety and environmental protection. 

The commenter stated the proposal 

requires that covered foundries ‘‘must 

initiate procedures to determine the 

cause at every alarm from a bag leak 

detection system within 1 hour of the 

alarm and alleviate the cause of the 

alarm within 3 hours by taking whatever 

corrective actions are necessary,’’ and 

longer times for initiating and taking 

corrective action are authorized by the 

proposal ‘‘if you identify in the 

monitoring plan this specific condition 

as one that would lead to an alarm’’ and 

‘‘adequately explain why it is not 

feasible to alleviate this condition 

within 3 hours.’’ The commenter 

believes these requirements fail to 

account for the conditions under which 

baghouses operate in foundries and to 

demand perfect forseeability to avoid 

violations. He noted that baghouses in 

foundries operate at extremely high 

temperatures, and baghouse alarms may 

occur when metal is being melted or 

when molten metal is being cast. 

According to the commenter, the billet 

and the furnace must cool sufficiently 

before the baghouse compartment can 

be safely entered. Also, according to the 

commenter, stringent company 

protocols for inspecting and replacing 

bags typically require that collectors 

cool for 24 to 72 hours after a furnace 

is shut down before entry into the 

collector is permitted. The commenter 

does not believe that it is productive in 

its monitoring plan to attempt to predict 

the entire universe of ‘‘specific 

conditions’’ that may trigger the alarm 

and to ‘‘adequately explain’’ why it is 

not feasible to complete all of the 

necessary corrective actions within 3 

hours. 

According to another commenter, 

these time frames are totally unrealistic 

and inappropriate for copper and other 

nonferrous foundries because most, if 

not all, of these foundries are small 

businesses and do not always have a 

fulltime employee dedicated solely to 

environmental compliance. The 

commenter said that, while identifying 

the cause of an emissions occurrence 

and taking steps to address it in a timely 

fashion is desirable, more realistic time 

frames for responding are necessary. 

The commenter suggested that EPA 

consider a more realistic requirement, 

such as a facility must take steps to 

identify the cause within 24 hours and 

must take steps to alleviate the cause 

within 72 hours. 


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Response: We disagree with the 

commenter that the corrective action 

response requirements should be 

revised to provide more time. EPA has 

applied these same corrective action 

time frames in the monitoring 

requirements for several similar source 

categories, and we are not aware of any 

implementation problems. The bag leak 

detection requirements include a 

provision, as the commenter noted, to 

provide more time when there are 

extenuating circumstances or 

conditions. It is appropriate that these 

conditions be identified in the 

monitoring plan. An owner or operator 

should consider amending its 

monitoring plan to account for events 

that it subsequently learns require 

longer time periods for correction. 

Similar to bag leak detection alarms, 

we agree that there may be occasions 

when the cause of VE cannot be 

corrected within 3 hours. We have 

revised the rule to incorporate a 

provision that parallels that of the bag 

leak detection requirement. The new 

provision requires that the owner or 

operator identify in a monitoring plan 

the specific conditions that would lead 

to VE and adequately explain why it is 

not feasible to alleviate this condition 

within 3 hours. 

Comment: One commenter said EPA 

details bag leak detection system 

installation, operation, and maintenance 

requirements for new affected sources 

equipped with a fabric filter and 

requires existing facilities subject to 

section 63.11551(b) to prepare and 

submit an operation and maintenance 

plan for control devices other than 

fabric filters. The commenter asked that 

EPA consider requiring all affected 

sources subject to the emission limits in 

section 63.11550(b), including existing 

sources that are not required to install 

a bag leak detection system, to prepare 

and operate according to an operation 

and maintenance plan for each control 

device. Additionally, the commenter 

asked that EPA also consider requiring 

affected sources subject to emission 

limits under section 63.11550(b) to 

install and maintain each capture and 

collection system to meet acceptable 

engineering standards, such as those 

published by the American Conference 

of Governmental Industrial Hygienists. 

Response: As we stated at proposal, 

monitoring fabric filters at existing 

sources for any VE provides assurance 

that the bags are not leaking and that the 

fabric filter is performing properly. 

Corrective action is required if any VE 

are observed. Consequently, we do not 

think that the additional monitoring 

burden recommended by the commenter 

(preparing an operation and 

maintenance plan or specifying the 

standard to which capture and 

collection systems must be installed) 

would result in an improvement in 

emission control. Furthermore, they 

would impose an additional burden on 

many small businesses. 

Comment: One commenter claimed 

that EPA provides no technical basis for 

the ‘‘no VE’’ requirement for copper and 

other nonferrous foundries in the 

administrative record for this proposed 

regulation. According to the commenter, 

without any technical basis or data to 

support a ‘‘no VE’’ requirement for 

either stack emissions or fugitive 

emissions, the requirement cannot 

represent a GACT standard for copper 

and other nonferrous foundry area 

sources. The commenter stated that the 

‘‘no VE’’ requirement is unsubstantiated 

and inappropriate. 

Response: There is not a ‘‘no VE’’ 

requirement; the requirement is to take 

corrective action if VE are observed 

from a baghouse because (as discussed 

above) a properly designed, operated, 

and maintained baghouse should not 

have VE. In addition, the observation of 

VE for baghouses is a baghouse 

monitoring option that only an existing 

affected facility may use. In the 

alternative, an existing affected facility 

may install and operate a bag leak 

detection system as a way of monitoring 

the proper operation of its baghouses. 

Monitoring requirements are not GACT; 

rather, they are based on monitoring 

certain parameters that would indicate 

that the control device (e.g., a baghouse) 

is operating properly. It is well 

established that if VE occur from a 

baghouse that is used on the exhaust of 

a melting furnace, then there is a 

problem with the baghouse (e.g., leaks 

or tears in the fabric). This monitoring 

option was previously used in the area 

source standard developed for ferroalloy 

furnaces (40 CFR Part 63, subpart 

YYYYYY), and we proposed it in this 

rule as a monitoring option for 

baghouses used on the exhausts of 

melting furnaces. As mentioned earlier, 

a facility has the option of monitoring 

with a bag leak detection system if there 

is a particular reason they do not want 

to monitor for VE. 

G. Testing Requirements 

Comment: One commenter noted that 

many of the existing emission control 

devices that will be subject to the PM 

emission limit may require significant 

physical modification in order to 

conduct the testing in accordance with 

the test protocols, and these 

modifications will substantially increase 

the cost of the testing, but will not affect 

the performance of the control device. 

The commenter stated that in some 

cases the ductwork modifications will 

have to be removed after the test is 

completed. The commenter estimates 

that as many as 95 percent of the 

affected control devices may never have 

been tested based primarily on the fact 

that the State permitting agency did not 

feel that such testing was necessary. 

Given the alternate emission limit of 

grains per dry standard cubic feet 

specified within the rule, the 

commenter believes that VE 

observations at the outlet of the 

baghouse provides adequate assurance 

that the fabric filter is performing in 

accordance with the rule. The 

commenter also stated that many State 

permitting authorities have already 

adopted VE observations as the only 

monitoring. The commenter 

recommended that the area source rule 

allow an affected facility to use 

observance of VE as an acceptable 

method of demonstrating compliance. 

The commenter continued by stating 

that if EPA disagrees with the above 

recommendation, then EPA should 

amend the 5-year period for which the 

results of a prior performance test can 

be used to demonstrate compliance. The 

commenter recommended that any 

existing affected facility that has 

performed stack tests, regardless of 

when those tests may have been 

performed, should be able to use the 

results to document compliance with 

the rule as long as the facility is able to 

provide copies of the maintenance 

records documenting volume tests, filter 

changes, and general maintenance done 

to the equipment upon request. 

One commenter operates a brass 

foundry that voluntarily installed 

baghouse controls for the melting and 

pouring operations at the foundry about 

17 years ago to capture the metal fume 

emissions, and currently there are nine 

separate baghouse modules with a 

common fan and inlet, but nine 

individual discharge stacks of which 

none are testable. The commenter 

considers the cost to build and test each 

of these stacks to be an economic 

hardship for his facility for what he 

believes to be zero environmental gain. 

The commenter stated that 

manufacturers of baghouse modules like 

the ones currently in operation at this 

facility will guarantee new units to meet 

an outlet particulate concentration of 

0.015 gr/dscf for the melting operation. 

Based on this, the commenter said that 

an alternative compliance method could 

be to inspect the system for leaks using 

accepted visual inspection methods, 

and such inspections could be done by 

third party consultants at a more 

acceptable cost to show that the filters 


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have been properly installed and 

functioning as they were intended. 

The commenter also stated that 

broken bag detectors might be used to 

show both the initial compliance and 

add a layer of security to the long term 

leak detection of the emission control 

system. According to the commenter, 

broken bag detectors for this system 

would not be inexpensive, but would 

likely be a much lower cost than to 

build and test nine stacks. The 

commenter said that this facility has 

over time found a steady state operating 

range for its fume control system, and 

by monitoring the cleaning cycle 

frequency, can detect the slightest 

system change or failure and react to fix 

the problem at the start of the failure. 

The commenter asked that this use of 

innovative technology should be 

considered as an acceptable compliance 

tool. 

The commenter said this facility has 

already installed the emission control 

for foundry melting operations, but 

believes that the cost of testing to show 

compliance is too high for his facility. 

The commenter asked if ‘‘no VE’’ 

criteria could be used as acceptable 

compliance method for facility 

emissions. 

Response: We understand the 

commenters’ concerns regarding the 

costs to conduct the compliance tests; 

however, we have defined GACT for the 

affected facilities to include a PM 

emission limit, and compliance with 

this limit must be demonstrated by 

compliance testing. We agree that 

testing all nine stacks is not necessary 

if the melting operation and expected 

emissions are similar across the stacks. 

We revised the rule to allow the owner 

or operator to perform the performance 

testing on one or more representative 

stacks with the approval of the 

Administrator or his or her authorized 

representative (e.g., a State that has been 

delegated authority to implement and 

enforce this rule). The owner or operator 

must provide data or an adequate 

explanation why the stack(s) chosen for 

testing are representative. We note that 

testing contractors have methods and 

procedures to make a baghouse 

‘‘testable,’’ such as adding a temporary 

stack extension to a short stack to meet 

Method 5 criteria. However, we did not 

revise the requirements for the use of 

prior test results to allow tests that may 

have been conducted long ago, perhaps 

when the baghouse was first installed, 

and continue to limit the use of prior 

tests to the preceding 5 years from the 

compliance date. We are concerned that 

testing performed more than 5 years 

from the compliance date, which is 

beyond the term of a typical operating 

permit, would not be representative of 

current operation. 

Comment: One commenter stated that 

the requirement that the facility ‘‘must 

operate each melting furnace within 

+/¥ 10 percent of the normal process 

rate’’ during the performance test is not 

consistent with some State requirements 

for performance testing and requested 

that EPA consider regulatory language 

that allows for an alternate method that 

is approved by another permitting 

authority. 

Response: We agree that the testing 

requirement discussed by the 

commenter may not be consistent with 

requirements in existing permits and 

may not be appropriate in all cases. We 

deleted this testing requirement from 

the final rule and note that the 

requirements for conducting 

performance tests are already addressed 

in the applicable General Provisions 

(section 63.7(e)(1)), which specify that 

performance tests be ‘‘based on 

representative performance (i.e., 

performance based on normal operating 

conditions) of the affected source.’’ 

H. Exemption From Title V Permitting 

Requirements 

Comment: Several commenters agreed 

with the proposed title V permit 

exemption, noting such factors as the 

adequacy of existing State programs to 

ensure compliance, the additional 

economic and other burdens imposed 

by title V permitting, and the lack of 

technical resources to comply with 

permitting requirements for facilities 

that are mostly small businesses support 

the exemption. 

Response: We acknowledge the 

commenters’ support for the exemption 

from title V permitting requirements in 

this rule. 

Comment: One commenter argued 

that the agency’s proposal to exempt the 

three area source categories from title V 

requirements is unlawful and arbitrary. 

The commenter states that section 

502(a) of the CAA authorizes EPA to 

exempt area source categories from title 

V permitting requirements if the 

Administrator finds that compliance 

with such requirements is 

‘‘impracticable, infeasible or 

unnecessarily burdensome.’’ 42 U.S.C. 

section 7661a(a). The commenter notes 

that EPA did not claim that title V 

requirements are impracticable or 

infeasible for any of the source 

categories it proposes to exempt, but 

that EPA instead relied entirely on its 

claim that title V would be 

‘‘unnecessarily burdensome.’’ 

Response: Section 502(a) of the CAA 

states, in relevant part, that: 

* * * [t]he Administrator may, in the 

Administrator’s discretion and consistent 

with the applicable provisions of this 

chapter, promulgate regulations to exempt 

one or more source categories (in whole or 

in part) from the requirements of this 

subsection if the Administrator finds that 

compliance with such requirements is 

impracticable, infeasible, or unnecessarily 

burdensome on such categories, except that 

the Administrator may not exempt any major 

source from such regulations. See 42 U.S.C. 

section 7661a(a). 

The statute plainly vests the 

Administrator with discretion to 

determine when it is appropriate to 

exempt non-major (i.e., area) sources of 

air pollution from the requirements of 

title V. The commenter correctly notes 

that EPA based the proposed 

exemptions solely on a determination 

that title V is ‘‘unnecessarily 

burdensome,’’ and did not rely on 

whether the requirements of title V are 

‘‘impracticable’’ or ‘‘infeasible’’, which 

are alternative bases for exempting area 

sources from title V. 

To the extent the commenter is 

asserting that EPA must determine that 

all three criteria in CAA section 502 are 

met before an area source category can 

be exempted from title V, the 

commenter misreads the statute. The 

statute expressly provides that EPA may 

exempt an area source category from 

title V requirements if EPA determines 

that the requirements are 

‘‘impracticable, infeasible or 

unnecessarily burdensome.’’ See CAA 

section 502 (emphasis added). If 

Congress had wanted to require that all 

three criteria be met before a category 

could be exempted from title V, it 

would have stated so by using the word 

‘‘and,’’ in place of ‘‘or’’. 

Comment: One commenter stated that 

in order to demonstrate that compliance 

with title V would be ‘‘unnecessarily 

burdensome,’’ EPA must show, among 

other things, that the ‘‘burden’’ of 

compliance is unnecessary. According 

to the commenter, by promulgating title 

V, Congress indicated that it viewed the 

burden imposed by its requirements as 

necessary as a general rule. The 

commenter maintained that the title V 

requirements provide many benefits that 

Congress viewed as necessary. Thus, in 

the commenter’s view, EPA must show 

why, for any given category, special 

circumstances make compliance 

unnecessary. The commenter believed 

that EPA has not made that showing for 

any of the categories it proposes to 

exempt. 

Response: EPA does not agree with 

the commenter’s characterization of the 

demonstration required for determining 

that title V is unnecessarily burdensome 

for an area source category. As stated 


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4 In the Exemption Rule, in addition to 

determining whether compliance with title V 

requirements would be unnecessarily burdensome 

on an area source category, we considered, 

consistent with the guidance provided by the 

legislative history of section 502(a), whether 

exempting the area source category would adversely 

affect public health, welfare or the environment. 

See 72 FR 15254–15255, March 25, 2005. As shown 

above, after conducting the four-factor balancing 

test and determining that title V requirements 

would be unnecessarily burdensome on the area 

source categories at issue here, we examined 

whether the exemption from title V would 

adversely affect public health, welfare and the 

environment, and found that it would not. 

5 If the commenter objected to our interpretation 

of the term ‘‘unnecessarily burdensome’’ in the 

Exemption Rule, it should have commented on, and 

challenged, that rule. Any challenge to the 

Exemption Rule is now time barred by CAA section 

307(b). Although we received comments on the title 

V Exemption Rule during the rulemaking process, 

no one sought judicial review of that rule. 

above, the CAA provides the 

Administrator discretion to exempt an 

area source category from title V if he 

determines that compliance with title V 

requirements is ‘‘impracticable, 

infeasible, or unnecessarily 

burdensome’’ on an area source 

category. See CAA section 502(a). In 

December 2005, in a national 

rulemaking, EPA interpreted the term 

‘‘unnecessarily burdensome’’ in CAA 

section 502 and developed a four-factor 

balancing test for determining whether 

title V is unnecessarily burdensome for 

a particular area source category, such 

that an exemption from title V is 

appropriate. See 70 FR 75320, December 

19, 2005 (‘‘Exemption Rule’’). In 

addition to interpreting the term 

‘‘unnecessarily burdensome’’ and 

developing the four-factor balancing test 

in the Exemption Rule, EPA applied the 

test to certain area source categories. 

The four factors that EPA identified in 

the Exemption Rule for determining 

whether title V is unnecessarily 

burdensome on a particular area source 

category include: (1) Whether title V 

would result in significant 

improvements to the compliance 

requirements, including monitoring, 

recordkeeping, and reporting, that are 

proposed for an area source category (70 

FR 75323); (2) whether title V 

permitting would impose significant 

burdens on the area source category and 

whether the burdens would be 

aggravated by any difficulty the sources 

may have in obtaining assistance from 

permitting agencies (70 FR 75324); (3) 

whether the costs of title V permitting 

for the area source category would be 

justified, taking into consideration any 

potential gains in compliance likely to 

occur for such sources (70 FR 75325); 

and (4) whether there are 

implementation and enforcement 

programs in place that are sufficient to 

assure compliance with the NESHAP for 

the area source category, without relying 

on title V permits (70 FR 75326).4

In discussing the above factors in the 

Exemption Rule, we explained that we 

considered on ‘‘a case-by-case basis the 

extent to which one or more of the four 

factors supported title V exemptions for 

a given source category, and then we 

assessed whether considered together 

those factors demonstrated that 

compliance with title V requirements 

would be ‘unnecessarily burdensome’ 

on the category, consistent with section 

502(a) of the Act.’’ See 70 FR 75323. 

Thus, we concluded that not all of the 

four factors must weigh in favor of 

exemption for EPA to determine that 

title V is unnecessarily burdensome for 

a particular area source category. 

Instead, the factors are to be considered 

in combination and EPA determines 

whether the factors, taken together, 

support an exemption from title V for a 

particular source category. 

The commenter asserts that ‘‘EPA 

must show * * * that the ‘‘burden’’ of 

compliance is unnecessary.’’ This is not, 

however, one of the four factors that we 

developed in the Exemption Rule in 

interpreting the term ‘‘unnecessarily 

burdensome’’ in CAA section 502, but 

rather a new test that the commenter 

maintains EPA ‘‘must’’ meet in 

determining what is ‘‘unnecessarily 

burdensome’’ under CAA section 502. 

EPA did not re-open its interpretation of 

the term ‘‘unnecessarily burdensome’’ 

in CAA section 502 in the February 9, 

2009 proposed rule for the categories at 

issue in this rule. Rather, we applied the 

four-factor balancing test articulated in 

the Exemption Rule to the source 

categories for which we proposed title V 

exemptions. Had we sought to re-open 

our interpretation of the term 

‘‘unnecessarily burdensome’’ in CAA 

section 502 and modify it from what 

was articulated in the Exemption Rule, 

we would have stated so in the February 

9, 2009 proposed rule and solicited 

comments on a revised interpretation, 

which we did not do. Accordingly, we 

reject the commenter’s attempt to create 

a new test for determining what 

constitutes ‘‘unnecessarily burdensome’’ 

under CAA section 502, as that issue 

falls outside the purview of this 

rulemaking.5

Moreover, were the comment framed 

as a request to reopen our interpretation 

of the term ‘‘unnecessarily burdensome’’ 

in CAA section 502, which it is not, we 

would deny such request because we 

have a court-ordered deadline to 

complete this rulemaking by June 15, 

2009. In any event, although the 

commenter espouses a new 

interpretation of the term 

‘‘unnecessarily burdensome’’ in CAA 

section 502 and attempts to create a new 

test for determining whether the 

requirements of title V are 

‘‘unnecessarily burdensome’’ for an area 

source category, the commenter does 

not explain why EPA’s interpretation of 

the term ‘‘unnecessarily burdensome’’ is 

arbitrary, capricious or otherwise not in 

accordance with law. We maintain that 

our interpretation of the term 

‘‘unnecessarily burdensome’’ in section 

502, as set forth in the Exemption Rule, 

is reasonable. 

Comment: One commenter stated that 

exempting a source category from title V 

permitting requirements deprives both 

the public generally and individual 

members of the public who would 

obtain and use permitting information 

from the benefit of citizen oversight and 

enforcement that Congress plainly 

viewed as necessary. According to the 

commenter, the text and legislative 

history of the CAA provide that 

Congress intended ordinary citizens to 

be able to get emissions and compliance 

information about air toxics sources and 

to be able to use that information in 

enforcement actions and in public 

policy decisions on a State and local 

level. The commenter stated that 

Congress did not think that enforcement 

by States or other government entities 

was enough; if it had, Congress would 

not have enacted the citizen suit 

provisions, and the legislative history of 

the CAA would not show that Congress 

viewed citizens’ access to information 

and ability to enforce CAA requirements 

as highly important both as an 

individual right and as a crucial means 

to ensuring compliance. According to 

the commenter, if a source does not 

have a title V permit, it is difficult or 

impossible—depending on the laws, 

regulations and practices of the State in 

which the source operates—for a 

member of the public to obtain relevant 

information about its emissions and 

compliance status. The commenter 

stated that likewise, it is difficult or 

impossible for citizens to bring 

enforcement actions. The commenter 

continued that EPA does not claim—far 

less demonstrate with substantial 

evidence, as would be required—that 

citizens would have the same ability to 

obtain compliance and emissions 

information about sources in the 

categories it proposes to exempt without 

title V permits. The commenter also said 

that likewise, EPA does not claim—far 

less demonstrate with substantial 

evidence—that citizens would have the 

same enforcement ability. Thus, 

according to the commenter, the 


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exemptions EPA proposes plainly 

eliminate benefits that Congress thought 

necessary. The commenter claimed that 

to justify its exemptions, EPA would 

have to show that the informational and 

enforcement benefits that Congress 

intended title V to confer—benefits 

which the commenter argues are 

eliminated by the exemptions—are for 

some reason unnecessary with respect 

to the categories it proposes to exempt. 

The commenter concluded that EPA 

does not even acknowledge these 

benefits of title V, far less explain why 

they are unnecessary, and that for this 

reason alone, EPA’s proposed 

exemptions are unlawful and arbitrary. 

Response: Once again, the commenter 

attempts to create a new test for 

determining whether the requirements 

of title V are ‘‘unnecessarily 

burdensome’’ on an area source 

category. Specifically, the commenter 

argues that EPA does not claim or 

demonstrate with substantial evidence 

that citizens would have the same 

access to information and the same 

ability to enforce under these NESHAP, 

absent title V. The commenter’s position 

represents a significant revision of the 

fourth factor that EPA developed in the 

Exemption Rule in interpreting the term 

‘‘unnecessarily burdensome’’ in CAA 

section 502. For all of the reasons 

explained above, the commenter’s 

attempt to create a new test for EPA to 

meet in determining whether title V is 

‘‘unnecessarily burdensome’’ on an area 

source category cannot be sustained. 

This rulemaking did not re-open EPA’s 

interpretation of the term 

‘‘unnecessarily burdensome’’ in CAA 

section 502. EPA reasonably applied the 

four factors to the facts of the three 

source categories at issue in this rule, 

and the commenter has not identified 

any flaw in EPA’s application of the 

four factor test to the three area source 

categories at issue here. 

Moreover, as explained in the 

proposal, we considered 

implementation and enforcement issues 

in the fourth factor of the four-factor 

balancing test. Specifically, the fourth 

factor of EPA’s unnecessarily 

burdensome analysis provides that EPA 

will consider whether there are 

implementation and enforcement 

programs in place that are sufficient to 

assure compliance with the NESHAP 

without relying on title V permits. See 

70 FR 75326. 

In applying the fourth factor here, 

EPA determined that there are adequate 

enforcement programs in place to assure 

compliance with the CAA. As stated in 

the proposal, we believe that Statedelegated programs are sufficient to 

assure compliance with the NESHAP 

and that EPA retains authority to 

enforce this NESHAP under the CAA. 

See 74 FR 6521. We also indicated that 

States and EPA often conduct voluntary 

compliance assistance, outreach, and 

education programs to assist sources 

and that these additional programs will 

supplement and enhance the success of 

compliance with this NESHAP. See 74 

FR 6521. The commenter does not 

challenge the conclusion that there are 

adequate State and Federal programs in 

place to ensure compliance with and 

enforcement of the NESHAP. Instead, 

the commenter provides an 

unsubstantiated assertion that 

information about compliance by the 

area sources with these NESHAP will 

not be as accessible to the public as 

information provided to a State 

pursuant to title V. In fact, the 

commenter does not provide any 

information that States will treat 

information submitted under these 

NESHAP differently than information 

submitted pursuant to a title V permit. 

Even accepting the commenter’s 

assertions that it is more difficult for 

citizens to enforce the NESHAP absent 

a title V permit, which we dispute, in 

evaluating the fourth factor in EPA’s 

balancing test, EPA concluded that there 

are adequate implementation and 

enforcement programs in place to 

enforce the NESHAP. The commenter 

has provided no information to the 

contrary or explained how the absence 

of title V actually impairs the ability of 

citizens to enforce the provisions of 

these NESHAP. Furthermore, the fourth 

factor is one factor that we evaluated in 

determining if the title V requirements 

were unnecessarily burdensome. As 

explained above, we considered that 

factor together with the other factors 

and determined that it was appropriate 

to finalize the proposed exemptions for 

the area source categories at issue in this 

rule. 

Comment: One commenter explained 

that title V provides important 

monitoring benefits, and, according to 

the commenter, EPA assumes that title 

V monitoring would not add any 

monitoring requirements beyond those 

required by the regulations for each 

category. The commenter said that in its 

proposal EPA proposed to require 

‘‘management practices currently used 

at most facilities is GACT for all 

foundries in each of the three source 

categories. 74 Fed. Reg. at 6520.’’ The 

commenter further states that ‘‘EPA 

argues that its proposed standard, by 

including these practices, provides 

monitoring in the form of recordkeeping 

that would ‘assure compliance’ with the 

requirements of the proposed rule. Id. at 

6521.’’ The commenter maintains that 

EPA made conclusory assertions and 

that the Agency failed to provide any 

evidence to demonstrate that the 

proposed monitoring requirements will 

assure compliance with the NESHAP for 

the exempt sources. The commenter 

stated that, for this reason as well, its 

claim that title V requirements are 

‘‘unnecessarily burdensome’’ is arbitrary 

and capricious, and its exemption is 

unlawful and arbitrary and capricious. 

Response: As noted in the earlier 

comment, EPA used the four-factor test 

to determine if title V requirements 

were unnecessarily burdensome. In the 

first factor, EPA considers whether 

imposition of title V requirements 

would result in significant 

improvements to the compliance 

requirements that are proposed for the 

area source categories. See 70 FR 75323. 

It is in the context of this first factor that 

EPA evaluates the monitoring, 

recordkeeping and reporting 

requirements of the proposed NESHAP 

to determine the extent to which those 

requirements are consistent with the 

requirements of title V. See 70 FR 

75323. 

The commenter asserts that ‘‘EPA 

argues that its proposed standard, 

including these practices, ‘provides 

monitoring in the form of recordkeeping 

that will assure compliance with the 

requirements of the proposed rule.’ ’’ 

The commenter has taken a phrase from 

the preamble out of context to imply 

that EPA has only required monitoring 

in the form of recordkeeping. In the 

proposal, we stated: 

EPA is proposing that a PM emission limit 

based on the use of fabric filters is GACT for 

copper and other nonferrous foundries 

melting 6,000 tpy or more of metal, and that 

management practices currently used at most 

facilities is GACT for all foundries in each of 

the three source categories. This proposed 

rule would require daily (or weekly) VE 

determinations for existing sources, bag leak 

detection system for new sources, 

recordkeeping, and deviation reporting to 

assure compliance with this NESHAP. The 

monitoring component of the first factor 

favors title V exemption because this 

proposed standard would provide for 

monitoring that assures compliance with the 

requirements of the proposed rule. For 

existing sources located at copper or other 

nonferrous foundries processing 6,000 tpy or 

more of total metal, this proposed NESHAP 

would set an emission limit that would 

require the use of a PM control system (i.e., 

fabric filter) with daily VE determinations. 

For new and existing sources located at 

aluminum, copper, or nonferrous foundries, 

the proposed NESHAP would require 

management practices to control emissions 

from melting furnaces. For the management 

practices, recordkeeping would be required 

to assure that the management practices are 

implemented, such as the use of covers or 


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enclosures during melting and the purchase 

and use of materials that have been depleted 

(to the extent practicable) of aluminum 

foundry HAP, copper foundry HAP, and 

other nonferrous foundry HAP. 

See 74 FR 6520. 

We nowhere state or imply that the 

only monitoring required for the rule is 

in the form of recordkeeping. As the 

above excerpt states, we required 

periodic monitoring, i.e., inspection for 

VE, of emission control devices for 

existing affected sources and continuous 

monitoring, i.e., bag leak detection 

system, for new affected sources when 

the rule requires the installation of such 

controls. This monitoring is in addition 

to the recordkeeping that serves as 

monitoring for the management 

practices. For the final rule, we have 

added a requirement for monthly 

inspections to assure that the 

management practices are being 

implemented. The commenter does not 

provide any evidence that contradicts 

the conclusion that the proposed 

monitoring requirements are sufficient 

to assure compliance with the standards 

in the rule. 

Based on the foregoing, we considered 

whether title V monitoring requirements 

would lead to significant improvements 

in the monitoring requirements in the 

proposed NESHAP and determined that 

they would not. We believe that the 

monitoring, recordkeeping and 

reporting requirements in this area 

source rule can assure compliance. 

For the reasons described above and 

in the proposed rule, the first factor 

supports exempting these three area 

source categories from title V 

requirements. Assuming, for arguments 

sake, that the first factor alone cannot 

support the exemption, the four-factor 

balancing test requires EPA to examine 

the factors in combination and 

determine whether the factors, viewed 

together, weigh in favor of exemption. 

See 70 FR 75326. As explained above, 

we determined that the factors, weighed 

together, support exemption of the area 

source categories from title V. 

Comment: One commenter believes 

that EPA cannot justify exempting the 

source from title V by asserting that 

compliance with title V requirements 

poses a significant burden. According to 

the commenter, regardless of whether 

EPA regards the burden as ‘‘significant,’’ 

the Agency may not exempt a category 

from compliance with title V 

requirements unless compliance is 

‘‘unnecessarily burdensome.’’ Or in the 

commenter’s words, that ‘‘the 

compliance burden is especially great.’’ 

The commenter stated that in any event, 

EPA’s claims about the alleged burden 

of compliance is entirely conclusory 

and could be applied equally to any 

major or area source category; therefore, 

the commenter claims that EPA has not 

justified why these three sources should 

be exempt from title V permitting as 

opposed to any other category. 

Response: As we have stated before, 

we found the burden placed on these 

sources in complying with the title V 

requirements is unnecessarily 

burdensome when we applied the fourfactor balancing test. We did not re-open 

EPA’s interpretation of the term 

‘‘unnecessarily burdensome’’ in this 

rule. As explained above, we maintain 

that the Agency’s interpretation of the 

term ‘‘unnecessarily burdensome,’’ as 

set forth in the Exemption Rule and 

reiterated in the proposal to this rule, is 

reasonable. 

In applying the four-factor test, we 

properly analyzed the second factor, i.e., 

will title V permitting impose a 

significant burden on the area source, 

and will that burden be aggravated by 

any difficulty that the source may have 

in obtaining assistance from the 

permitting agency. See 70 FR 75320. 

EPA found that the sources would have 

a significant burden because we 

estimated that the average cost of 

obtaining and complying with a title V 

permit in general was $65,700 per 

source for a 5-year permit period. Id. In 

addition, EPA estimates that more than 

300 of the affected sources would need 

to get a title V permit, absent the 

exemption finalized in the rule. In 

addition, EPA found that 98 percent of 

the sources affected by the rule are 

small businesses, most with fewer than 

50 employees and about 25 percent or 

more with only one to four employees. 

Small businesses, such as most all of the 

foundries in these three source 

categories, often lack the technical 

resources to comply with the permitting 

requirements and the financial 

resources needed to hire the necessary 

staff or outside consultants. EPA found 

that not only is the individual cost of 

permitting significant for these source 

categories (i.e., $65,700), but also the 

cost to the source categories as a whole 

is significant. Furthermore, given the 

number of affected sources in these 

three categories (i.e., more than 300), it 

would likely be difficult for them to 

obtain assistance from the permitting 

authorities. These specific factors for the 

affected sources alone justify that EPA 

has properly exempted the source 

categories from title V. However, as 

discussed in the proposal and above, 

EPA analyzed all of the four factors in 

making its determination that these 

sources should be exempt from title V 

permitting requirements; and we found 

that the totality of these factors weighs 

heavily in favor of the exemption. 

Therefore, we disagree with the 

commenter’s assertion that EPA’s 

finding (i.e., that the burden of obtaining 

a title V permit is significant does not 

equate to the required finding that the 

burden is unnecessary) is misplaced. 

While EPA could have found that the 

second factor alone could justify the 

exemption, EPA found that the other 

three factors also support exempting the 

sources from the title V requirements 

because the permitting requirements are 

unnecessarily burdensome for these 

three source categories. We also disagree 

with the commenter that EPA has not 

provided a source-specific analysis that 

the burden for these three source 

categories is unnecessarily burdensome. 

Comment: According to one 

commenter, EPA argued that 

compliance with title V would not yield 

any gains in compliance with 

underlying requirements in the relevant 

NESHAP (74 FR 6521). The commenter 

stated that EPA’s conclusory claim 

could be made equally with respect to 

any major or area source category. 

According to the commenter, the 

Agency provides no specific reasons to 

believe—with respect to any of the 

categories it proposes to exempt—that 

the additional informational, 

monitoring, reporting, certification, and 

enforcement requirements that exist in 

title V, but not in these NESHAP, would 

not provide additional compliance 

benefits. The commenter also stated that 

the only basis for EPA’s claim is, 

apparently, its beliefs that those 

additional requirements never confer 

additional compliance benefits. 

According to the commenter, by 

advancing such argument, EPA merely 

seeks to elevate its own policy judgment 

over Congress’ decisions reflected in the 

CAA’s text and legislative history. 

Response: The commenter takes out of 

context certain statements in the 

proposed rule concerning the factors 

used in the balancing test to determine 

if imposition of title V permit 

requirements is unnecessarily 

burdensome for the source categories. 

The commenter also mischaracterizes 

the first of the four-factor balancing test 

with regard to determining whether 

imposition of title V would result in 

significant improvements in 

compliance. In addition, the commenter 

mischaracterizes the analysis in the 

third factor of the balancing test which 

instructs EPA to take into account any 

gains in compliance that would result 

from the imposition of the title V 

requirements. 

First, EPA nowhere states, nor does it 

believe, that title V never confers 


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additional compliance benefits as the 

commenter asserts. While EPA 

recognizes that requiring a title V permit 

offers additional compliance options, 

the statute provides that EPA must 

assess whether compliance with title V 

would be unnecessarily burdensome to 

the specific area source. For the three 

source categories subject to this 

rulemaking, EPA concluded that 

requiring title V permits would be 

unnecessarily burdensome. 

Second, the commenter 

mischaracterizes the first factor by 

asserting that EPA must demonstrate 

that title V will provide no additional 

compliance benefits. The first factor 

calls for a consideration of ‘‘whether 

title V would result in significant 

improvements to the compliance 

requirements, including monitoring, 

recordkeeping, and reporting, that are 

proposed for an area source category.’’ 

Thus, contrary to the commenter’s 

assertion, the inquiry under the first 

factor is not whether title V will provide 

any compliance benefit, but rather 

whether it will provide significant 

improvements in compliance 

requirements. 

EPA feels that the monitoring, 

recordkeeping and reporting 

requirements in the rule are sufficient to 

assure compliance with the 

requirements of this rule and are 

sufficient to allow the public the 

opportunity to obtain knowledge about 

the source, consistent with the goal in 

title V permitting. For example, in the 

Initial Notification, the source must 

identify its size, whether it must meet 

any of the GACT requirements in the 

rule, and how it plans to comply with 

the rule requirements. The source must 

also certify how it is complying and that 

it has complied with the requirements 

to institute the management practices, to 

establish recordkeeping to demonstrate 

compliance with the management 

practices, to install controls, if 

necessary, to establish monitoring of the 

controls as required, and to establish 

recordkeeping regarding the inspections 

of the controls and any corrective 

actions taken as a result of seeing any 

visual monitoring. See § 63.11553 in the 

final rule. These two reports are 

available to the public once the source 

has filed them with the permitting 

agency. The source must also keep 

records and conduct inspections to 

document that it is complying with the 

management practices finalized in this 

rule. See § 63.11553 in the final rule. 

The source must monitor and record the 

VE from the PM control, if applicable, 

must begin corrective action and record 

the specifics about the corrective action 

upon seeing any VE from the control. 

The source must also submit deviation 

reports to the permitting agency every 6 

months if there has been a deviation in 

the requirements of the rule. See 

§ 63.11553 in the final rule. Again, these 

deviation reports are available to the 

public once the source has submitted 

them to the permitting agency. EPA 

believes that these requirements in the 

rule itself, including the requirement to 

provide information about the source’s 

compliance that is available to the 

public, provide sufficient basis to 

ensure compliance, and does not feel 

that the title V requirements, if 

applicable to these sources, would offer 

significant improvements in the 

compliance of the sources with the rule. 

Third, the commenter incorrectly 

characterizes our statements in the 

proposed rule concerning our 

application of the third factor. Under 

the third factor, EPA evaluates ‘‘whether 

the costs of title V permitting for the 

area source category would be justified, 

taking into consideration any potential 

gains in compliance likely to occur for 

such sources.’’ Contrary to what the 

commenter alleges, EPA did not state in 

the proposed rule that compliance with 

title V would not yield any gains in 

compliance with the underlying 

requirements in the relevant NESHAP, 

nor does factor three require such a 

determination. 

Instead, consistent with the third 

factor, we considered whether the costs 

of title V are justified in light of any 

potential gains in compliance. In other 

words, EPA must view the costs of title 

V permitting requirements, considering 

any improvement in compliance above 

what the rule requires. EPA reviewed 

the three area source categories at issue 

and determined that fewer than 20 of 

the more than 300 sources that would be 

subject to the rule currently have a title 

V permit. As stated in the proposal (74 

FR 6521), EPA estimated that the 

average cost of obtaining and complying 

with a title V permit was $65,700 per 

source for a 5-year permit period, 

including fees. See Information 

Collection Request for Part 70 Operating 

Permit Regulations, 72 FR 32290, June 

12, 2007, EPA ICR Number 1587.07. 

Based on this information, EPA 

determined that there is a significant 

cost burden to the industry to require 

title V permitting for all the sources 

subject to the rule. In addition, in 

analyzing factor one, EPA found that 

imposition of the title V requirements 

offers no significant improvements in 

compliance. In considering the third 

factor, we stated in part that, ‘‘Because 

the costs of compliance with title V are 

so high, and the potential for gains in 

compliance is low, we are proposing 

that title V permitting is not justified for 

these source categories. Accordingly, 

the third factor supports the proposed 

title V exemptions for aluminum, 

copper, and other nonferrous foundries 

area sources.’’ See 74 FR 6521. 

Most importantly, EPA considered all 

four factors in the balancing test in 

determining whether title V was 

unnecessarily burdensome on the area 

source categories. EPA found it 

reasonable after considering all four 

factors to exempt these three source 

categories from the permitting 

requirements in title V. This rulemaking 

did not re-open EPA’s interpretation of 

the term ‘‘unnecessarily burdensome’’ 

in CAA section 502. Because the 

commenter’s statements do not 

demonstrate a flaw in EPA’s application 

of the four-factor balancing test to the 

specific facts of the source categories at 

issue here, the comments provide no 

basis for the Agency to reconsider its 

proposal to exempt the area source 

categories from title V. 

Comment: According to one 

commenter, ‘‘[t]he agency does not 

identify any aspect of any of the 

underlying NESHAP showing that with 

respect to these specific NESHAP— 

unlike all the other major and area 

source NESHAP it has issued without 

title V exemptions—title V compliance 

is unnecessary.’’ Instead, according to 

the commenter, EPA merely pointed to 

existing State requirements and the 

potential for actions by States and EPA 

that are generally applicable to all 

categories (along with some small 

business and voluntary programs). The 

commenter said that, absent a showing 

by EPA that distinguishes the sources it 

proposes to exempt from other sources, 

however, the Agency’s argument boils 

down to the generic and conclusory 

claim that it generally views title V 

requirements as unnecessary. The 

commenter stated that, while this may 

be EPA’s view, it was not Congress’ 

view when Congress enacted title V, and 

a general view that title V is 

unnecessary does not suffice to show 

that title V compliance is unnecessarily 

burdensome. 

Response: The commenter again takes 

issue with the Agency’s test for 

determining whether title V is 

unnecessarily burdensome, as 

developed in the Exemption Rule. Our 

interpretation of the term 

‘‘unnecessarily burdensome’’ is not the 

subject of this rulemaking. In any event, 

as explained above, we believe the 

Agency’s interpretation of the term 

‘‘unnecessarily burdensome’’ is a 

reasonable one. To the extent the 

commenter asserts that our application 

of the fourth factor is flawed, we 


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disagree. The fourth factor involves a 

determination as to whether there are 

implementation and enforcement 

programs in place that are sufficient to 

assure compliance with the rule without 

relying on the title V permits. In 

discussing the fourth factor in the 

proposal, EPA states that prior to 

delegating implementation and 

enforcement to a State, EPA must ensure 

that the State has programs in place to 

enforce the rule. EPA believes that these 

programs will be sufficient to assure 

compliance with the rule. EPA also 

retains authority to enforce this 

NESHAP anytime under CAA sections 

112, 113 and 114. EPA also noted other 

factors in the proposal that together are 

sufficient to assure compliance with this 

area source. 

The commenter argues that EPA 

cannot exempt these area sources from 

title V permitting requirements because 

‘‘[t]he agency does not identify any 

aspect of any of the underlying NESHAP 

showing that with respect to these 

specific NESHAP—unlike all the other 

major and area source NESHAP it has 

issued without title V exemptions—title 

V compliance is unnecessary’’ 

(emphasis added). As an initial matter, 

EPA cannot exempt major sources from 

title V permitting. 42 U.S.C. 502(a). As 

for area sources, the standard that the 

commenter proposes—that EPA must 

show that ‘‘title V compliance is 

unnecessary’’—is not consistent with 

the standard the Agency established in 

the Exemption Rule and applied in the 

proposed rule in determining if title V 

requirements are unnecessarily 

burdensome for the three source 

categories at issue. 

Furthermore, we disagree that the 

basis for excluding the three area source 

foundry categories from title V 

requirements is generally applicable to 

any source category. As explained in the 

proposal preamble and above, we 

balanced the four factors considering 

the facts and circumstances of the three 

source categories at issue in this rule. 

For example, in assessing whether the 

costs of requiring the sources to obtain 

a title V permit was burdensome, we 

concluded that because greater than 90 

percent of the sources did not have a 

title V permit, the costs imposed on the 

source categories were significant 

compared to the additional compliance 

benefits offered by the title V permitting 

process. 

Comment: One commenter stated that 

the legislative history of the CAA shows 

that Congress did not intend EPA to 

exempt source categories from 

compliance with title V unless doing so 

would not adversely affect public 

health, welfare, or the environment. See 

74 FR 6522. Nonetheless, according to 

the commenter, EPA does not make any 

showing that its exemptions would not 

have adverse impacts on health, welfare 

and the environment. The commenter 

stated that, instead, EPA offered only 

the conclusory assertion that ‘‘the level 

of control would remain the same’’ 

whether title V permits are required or 

not (74 FR 6522). The commenter 

continued by stating that EPA relied 

entirely on the conclusory arguments 

advanced elsewhere in its proposal that 

compliance with title V would not yield 

additional compliance with the 

underlying NESHAP. The commenter 

stated that those arguments are wrong 

for the reasons given above, and 

therefore EPA’s claims about public 

health, welfare and the environment are 

wrong too. The commenter also stated 

that Congress enacted title V for a 

reason: to assure compliance with all 

applicable requirements and to 

empower citizens to get information and 

enforce the CAA. The commenter said 

that those benefits—of which EPA’s 

proposed rule deprives the public— 

would improve compliance with the 

underlying standards and thus have 

benefits for public health, welfare and 

the environment. According to the 

commenter, EPA has not demonstrated 

that these benefits are unnecessary with 

respect to any specific source category, 

but again simply rests on its own 

apparent belief that they are never 

necessary. The commenter concluded 

that, for the reasons given above, the 

attempt to substitute EPA’s judgment for 

Congress’ is unlawful and arbitrary. 

Response: Congress gave the 

Administrator the authority to exempt 

area sources from compliance with title 

V if, in his or her discretion, the 

Administrator ‘‘finds that compliance 

with [title V] is impracticable, 

infeasible, or unnecessarily 

burdensome.’’ See CAA section 502(a). 

EPA has interpreted one of the three 

justifications for exempting area 

sources, ‘‘unnecessarily burdensome’’, 

as requiring consideration of the four 

factors discussed above. EPA applied 

these four factors to the three foundry 

area source categories subject to this 

rule and concluded that requiring title 

V for these area source categories would 

be unnecessarily burdensome. 

In addition to determining that title V 

would be unnecessarily burdensome on 

the area source categories for which we 

proposed exemptions, as in the 

Exemption Rule, EPA also considered 

whether exempting the area source 

categories would adversely affect public 

health, welfare or the environment. As 

explained in the proposal preamble, we 

concluded that exempting the area 

source categories at issue in this rule 

would not adversely affect public 

health, welfare or the environment 

because the level of control would be 

the same even if title V applied. We 

further explained in the proposal 

preamble that the title V permit program 

does not generally impose new 

substantive air quality control 

requirements on sources, but instead 

requires that certain procedural 

measures be followed, particularly with 

respect to determining compliance with 

applicable requirements. The 

commenter has not provided any 

information that exemption of these area 

source categories from title V will 

adversely affect public health, welfare 

or the environment. 

I. Miscellaneous 

Comment: One commenter stated that 

in order for these rules to be 

implemented properly, EPA should 

provide sufficient additional funds to 

State and local clean air agencies. The 

commenter said that in recent years, 

Federal grants for State and local air 

programs have amounted to only about 

one-third of what they should be, and 

budget requests for the last two years 

have called for additional cuts. 

According to the commenter, additional 

area source programs, which are not 

eligible for title V fees, will require 

significant increases in resources for 

State and local air agencies beyond what 

is currently provided. The commenter 

claims that without increased funding, 

some State and local air agencies may 

not be able to adopt and enforce 

additional area source rules. 

Response: State and local air 

programs are an important and integral 

part of the regulatory scheme under the 

CAA. As always, EPA recognizes the 

efforts of State and local agencies in 

taking delegations to implement and 

enforce CAA requirements, including 

the area source standards under section 

112. We understand the importance of 

adequate resources for State and local 

agencies to run these programs; 

however, we do not believe that this 

issue can be addressed through today’s 

rulemaking. 

EPA today is promulgating standards 

for the Aluminum, Copper, and Other 

Nonferrous Foundries area source 

categories that reflect what constitutes 

GACT for the Urban HAP for which the 

source categories were listed. GACT 

standards are technology-based 

standards. The level of State and local 

resources needed to implement these 

rules is not a factor that we consider in 

determining what constitutes GACT. 

Although the resource issue cannot be 

resolved through today’s rulemaking for 


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the reason stated above, EPA remains 

committed to working with State and 

local agencies to implement this rule. 

State and local agencies that receive 

grants for continuing air programs under 

CAA section 105 should work with their 

project officer to determine what 

resources are necessary to implement 

and enforce the area source standards. 

EPA will continue to provide the 

resources appropriated for section 105 

grants consistent with the statute and 

the allotment formula developed 

pursuant to the statute. 

Comment: One commenter noticed 

that EPA includes beryllium in the 

metal HAP list for the aluminum 

foundries but not for copper foundries. 

Due to beryllium’s toxicity, the 

commenter suggests that beryllium also 

be added to the copper foundries metal 

HAP list. 

Response: The copper foundries HAP 

list was based on the 112(k) listing that 

identified the selected pollutants for 

each source category. Beryllium was not 

included in the 112(k) listing for copper 

foundries, and we are not aware of any 

copper foundries reporting emissions of 

beryllium. 

Comment: One commenter stated the 

preamble language was not accurate in 

the discussion of some copper-based 

alloys, such as leaded brass, containing 

up to 3.5 percent lead. The commenter 

stated many leaded alloys contain more 

lead than that. The commenter said that 

‘‘red brass’’ is very common and 

contains 7 to 8 percent lead, and various 

industry metal specifications list some 

types of lead containing alloys up to 27 

percent lead. 

Response: We appreciate the 

commenter’s information and technical 

update, and we acknowledge that the 

provided information is correct. 

Comment: One commenter noted 

what appears to be a typo within section 

63.11552(d) of the proposed rule. The 

reference to sources subject to 

‘‘63.11551(b)’’ should actually be 

sources subject to ‘‘63.11550(b).’’ 

Response: We agree with the 

commenter and made the suggested 

correction to the final rule. 

VII. Impacts of the Final Standards 

Existing aluminum, copper, and other 

nonferrous foundries are currently well 

controlled, and our final GACT 

determination reflects such controls. 

Compared to 1990, when the baseline 

emissions were established, these 

sources have improved their level of 

control and reduced emissions due to 

State permitting requirements, 

Occupational Safety and Health 

Administration (OSHA) regulations 

(particularly for lead), and actions taken 

to improve efficiency and reduce costs. 

We estimate that the only impacts 

associated with the final rule are the 

compliance requirements (i.e., 

monitoring, reporting, recordkeeping, 

and testing). 

Approximately 318 aluminum, 

copper, and other nonferrous foundries 

are subject to the final rule and will 

incur initial one-time costs of $656,000 

and a total annualized cost of $638,000/ 

yr (an average of $2,000/yr per plant). 

The one-time (‘‘first’’) costs are for 

initial notifications; preparing the 

management practices plan and startup, 

shutdown, and malfunction plan; and 

initial performance tests. Recurring 

annual costs include those for 

maintaining records and daily visual 

inspections of fabric filters. 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action is a ‘‘significant regulatory 

action’’ under the terms of Executive 

Order 12866 (58 FR 51735, October 4, 

1993), and is therefore subject to review 

under the Executive Order. 

B. Paperwork Reduction Act 

The information collection 

requirements in this final rule have been 

submitted for approval to OMB under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The Information Collection 

Request (ICR) document prepared by 

EPA has been assigned EPA ICR No. 

2332.02. 

The recordkeeping and reporting 

requirements in this final rule are based 

on the information collection 

requirements in EPA’s NESHAP General 

Provisions (40 CFR part 63, subpart A). 

The recordkeeping and reporting 

requirements in the General Provisions 

are mandatory pursuant to section 114 

of the CAA (42 U.S.C. 7414). All 

information other than emissions data 

submitted to EPA pursuant to the 

information collection requirements for 

which a claim of confidentiality is made 

is safeguarded according to CAA section 

114(c) and EPA’s implementing 

regulations at 40 CFR part 2, subpart B. 

This final NESHAP requires 

applicable one-time notifications 

according to the NESHAP General 

Provisions. Plant owners or operators 

are required to prepare and operate by 

written management practice plans and 

include compliance certifications for the 

management practices in their 

Notifications of Compliance Status. 

Foundries subject to the emission 

standards are required to conduct daily 

VE observations with a reduction to 

weekly VE observations if VE are not 

detected after 30 consecutive days of 

daily observations. Recordkeeping is 

required to demonstrate compliance 

with management practices, monitoring, 

and applicability provisions. The 

affected facilities are expected to 

already have the necessary control and 

monitoring equipment in place and to 

already conduct much of the required 

monitoring and recordkeeping activities. 

Foundries subject to the rule also are 

required to comply with the 

requirements for startup, shutdown, and 

malfunction plans/reports and to submit 

a compliance report if a deviation 

occurred during the semiannual 

reporting period. 

The average annual burden for this 

information collection averaged over the 

first 3 years of this ICR is estimated to 

total 7,160 labor hours per year at a cost 

of approximately $408,855 for the 318 

facilities that would be subject to the 

final rule, or approximately 68 hours 

per year per facility. No capital/startup 

costs or operation and maintenance 

costs are associated with the final rule 

information collection requirements. No 

costs or burden hours are estimated for 

new area source foundries because none 

is projected for the next 3 years. Burden 

is defined at 5 CFR 1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless the collection displays a 

currently valid OMB control number. 

The OMB control numbers for EPA’s 

regulations in 40 CFR part 63 are listed 

in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule would not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit enterprises, and 

small governmental jurisdictions. 

For the purposes of assessing the 

impacts of the final area source 

NESHAP on small entities, a small 

entity is defined as: (1) A small business 

whose parent company meets the Small 

Business Administration size standards 

for small businesses found at 13 CFR 

121.201 (less than 500 for aluminum, 

copper, and other nonferrous foundries); 

(2) a small governmental jurisdiction 

that is a government of a city, county, 

town, school district, or special district 

with a population of less than 50,000; 


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and (3) a small organization that is any 

not-for-profit enterprise that is 

independently owned and operated and 

is not dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

There will not be any significant 

impacts on new or existing aluminum, 

copper, or other nonferrous foundries 

because this final rule will not create 

any new requirements or burdens other 

than minimal compliance requirements. 

This final rule is estimated to impact 

318 (of more than 962) area source 

facilities, 307 of which are small 

entities. The analysis shows that none of 

the small entities will incur economic 

impacts exceeding 1 percent of its 

revenue. We have determined that small 

entity compliance costs are expected to 

be less than 0.05 percent of company 

sales revenue for all affected plants. 

Although this final rule will contain 

requirements for new area sources, EPA 

does not expect any new aluminum, 

copper, or other nonferrous foundries to 

be constructed in the foreseeable future; 

therefore, EPA did not estimate the 

impacts for new affected sources. 

Although this final rule will not have 

a significant economic impact on a 

substantial number of small entities, 

EPA nonetheless has tried to reduce the 

impact of this final rule on small 

entities. The standards represent 

practices and controls that are common 

throughout the industry. The standards 

also require only the essential 

monitoring, recordkeeping, and 

reporting needed to verify compliance. 

The final standards were developed 

based on information obtained from 

small businesses in our surveys, 

consultation with small business 

representatives, and consultation with 

industry representatives that are 

affiliated with small businesses. 

D. Unfunded Mandates Reform Act 

This final rule does not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and Tribal governments, 

in the aggregate, or to the private sector 

in any one year. This final rule is not 

expected to impact State, local, or Tribal 

governments. The nationwide 

annualized cost of this final rule for 

affected industrial sources is $638,000/ 

yr. Thus, this final rule is not subject to 

the requirements of sections 202 and 

205 of the Unfunded Mandates Reform 

Act (UMRA). 

This final rule is also not subject to 

the requirements of section 203 of 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. This 

final rule will not apply to such 

governments and will not impose any 

obligations upon them. 

E. Executive Order 13132: Federalism 

Executive Order 13132 (64 FR 43255, 

August 10, 1999) requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ 

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This final rule 

does not impose any requirements on 

State and local governments. Thus, 

Executive Order 13132 does not apply 

to this final rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This final rule imposes no 

requirements on Tribal governments; 

thus, Executive Order 13175 does not 

apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045, ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), applies to any rule that 

(1) is determined to be ‘‘economically 

significant,’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

EPA must evaluate the environmental 

health or safety effects of the planned 

rule on children and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives considered by the 

Agency. 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that are based on health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it is 

based solely on technology 

performance. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355, May 22, 

2001) because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. We have 

concluded that this final rule will not 

likely have any significant adverse 

energy effects because no additional 

pollution controls or other equipment 

that consume energy would be required. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113 (15 U.S.C. 272 note), directs 

EPA to use voluntary consensus 

standards (VCS) in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, business practices) that are 

developed or adopted by voluntary 

consensus standards bodies. NTTAA 

directs EPA to provide Congress, 

through OMB, explanations when the 

Agency decides not to use available and 

applicable VCS. 

This rulemaking involves technical 

standards. EPA has decided to use 

ASME PTC 19.10–1981, ‘‘Flue and 

Exhaust Gas Analyses,’’ for its manual 

methods of measuring the oxygen or 

carbon dioxide content of the exhaust 

gas. These parts of ASME PTC 19.10– 

1981 are acceptable alternatives to EPA 

Method 3B. This standard is available 

from the American Society of 

Mechanical Engineers (ASME), Three 

Park Avenue, New York, NY 10016– 

5990. 

EPA has also decided to use EPA 

Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 

3, 3A, 3B, 4, 5, 5D, and 17. Although the 

Agency has identified 11 VCS as being 

potentially applicable to these methods 

cited in this rule, we have decided not 

to use these standards in this 

rulemaking. The use of these VCS 

would have been impractical because 


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they do not meet the objectives of the 

standards cited in this rule. The search 

and review results are in the docket for 

this rule. 

Under section 63.7(f) and section 

63.8(f) of Subpart A of the General 

Provisions, a source may apply to EPA 

for permission to use alternative test 

methods or alternative monitoring 

requirements in place of any required 

testing methods, performance 

specifications, or procedures in the final 

rule and amendments. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low-income populations because it will 

not affect the level of protection 

provided to human health or the 

environment. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801, et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this final rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of this final rule in the 

Federal Register. A major rule cannot 

take effect until 60 days after it is 

published in the Federal Register. This 

action is not a ‘‘major rule’’ as defined 

by 5 U.S.C. 804(2). This final rule will 

be effective on June 25, 2009. 

List of Subjects in 40 CFR Part 63 

Environmental protection, Air 

pollution control, Hazardous 

substances, Incorporations by reference, 

Reporting and recordkeeping 

requirements. 

Dated: June 15, 2009. 

Lisa P. Jackson, 

Administrator. 

■ For the reasons stated in the preamble, 

title 40, chapter I, of the Code of Federal 

Regulations is amended as follows: 

PART 63—[AMENDED] 

■ 1. The authority citation for part 63 

continues to read as follows: 

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

Subpart A—[Amended] 

■ 2. Section 63.14 is amended by 

revising paragraph (i)(1) to read as 

follows: 

§ 63.14 Incorporations by reference. 

* * * * * 

(i) * * * 

(1) ANSI/ASME PTC 19.10–1981, 

‘‘Flue and Exhaust Gas Analyses [Part 

10, Instruments and Apparatus],’’ IBR 

approved for §§ 63.309(k)(1)(iii), 

63.865(b), 63.3166(a)(3), 

63.3360(e)(1)(iii), 63.3545(a)(3), 

63.3555(a)(3), 63.4166(a)(3), 

63.4362(a)(3), 63.4766(a)(3), 

63.4965(a)(3), 63.5160(d)(1)(iii), 

63.9307(c)(2), 63.9323(a)(3), 

63.11148(e)(3)(iii), 63.11155(e)(3), 

63.11162(f)(3)(iii) and (f)(4), 

63.11163(g)(1)(iii) and (g)(2), 

63.11410(j)(1)(iii), 63.11551(a)(2)(i)(C), 

table 5 to subpart DDDDD of this part, 

and table 1 to subpart ZZZZZ of this 

part. 

* * * * * 

■ 3. Part 63 is amended by adding 

subpart ZZZZZZ to read as follows: 

Subpart ZZZZZZ—National Emission 

Standards for Hazardous Air Pollutants: 

Area Source Standards for Aluminum, 

Copper, and Other Nonferrous Foundries 

Applicability and Compliance Dates 

Sec. 

63.11544 Am I subject to this subpart? 

63.11545 What are my compliance dates? 

Standards and Compliance Requirements 

63.11550 What are my standards and 

management practices? 

63.11551 What are my initial compliance 

requirements? 

63.11552 What are my monitoring 

requirements? 

63.11553 What are my notification, 

reporting, and recordkeeping 

requirements? 

Other Requirements and Information 

63.11555 What General Provisions apply to 

this subpart? 

63.11556 What definitions apply to this 

subpart? 

63.11557 Who implements and enforces 

this subpart? 

63.11558 [Reserved] 

Tables to Subpart ZZZZZZ of Part 63 

Table 1 to Subpart ZZZZZZ of Part 63— 

Applicability of General Provisions to 

Aluminum, Copper, and Other 

Nonferrous Foundries Area Sources 

Subpart ZZZZZZ—National Emission 

Standards for Hazardous Air 

Pollutants: Area Source Standards for 

Aluminum, Copper, and Other 

Nonferrous Foundries 

Applicability and Compliance Dates 

§ 63.11544 Am I subject to this subpart? 

(a) You are subject to this subpart if 

you own or operate an aluminum 

foundry, copper foundry, or other 

nonferrous foundry as defined in 

§ 63.11556, ‘‘What definitions apply to 

this subpart?’’ that is an area source of 

hazardous air pollutant (HAP) emissions 

as defined in § 63.2 and meets the 

criteria specified in paragraphs (a)(1) 

through (4) of this section. Once you are 

subject to this subpart, you must remain 

subject to this subpart even if you 

subsequently do not meet the criteria in 

paragraphs (a)(1) through (4) of this 

section. 

(1) Your aluminum foundry uses 

materials containing one or more 

aluminum foundry HAP as defined in 

§ 63.11556, ‘‘What definitions apply to 

this subpart?’’; or 

(2) Your copper foundry uses 

materials containing one or more copper 

foundry HAP, as defined in § 63.11556, 

‘‘What definitions apply to this 

subpart?’’; or 

(3) Your other nonferrous foundry 

uses materials containing one or more 

other nonferrous foundry HAP, as 

defined in § 63.11556, ‘‘What 

definitions apply to this subpart?’’; and 

(4) Your aluminum foundry, copper 

foundry, or other nonferrous foundry 

has an annual metal melt production 

(for existing affected sources) or an 

annual metal melt capacity (for new 

affected sources) of at least 600 tons per 

year (tpy) of aluminum, copper, and 

other nonferrous metals, including all 

associated alloys. You must determine 

the annual metal melt production and 

capacity for the time period as described 

in paragraphs (a)(4)(i) through (iv) of 

this section. The quantity of ferrous 

metals melted in iron or steel melting 

operations and the quantity of 

nonferrous metal melted in non-foundry 

melting operations are not included in 

determining the annual metal melt 

production for existing affected sources 

or the annual metal melt capacity for 

new affected sources. 


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(i) If you own or operate a melting 

operation at an aluminum, copper or 

other nonferrous foundry as of February 

9, 2009, you must determine if you are 

subject to this rule based on your 

facility’s annual metal melt production 

for calendar year 2010. 

(ii) If you construct or reconstruct a 

melting operation at an aluminum, 

copper or other nonferrous foundry after 

February 9, 2009, you must determine if 

you are subject to this rule based on 

your facility’s annual metal melt 

capacity at startup. 

(iii) If your foundry with an existing 

melting operation increases production 

after calendar year 2010 such that the 

annual metal melt production equals or 

exceeds 600 tpy, you must submit a 

written notification of applicability to 

the Administrator within 30 days after 

the end of the calendar year and comply 

within 2 years after the date of the 

notification. 

(iv) If your foundry with a new 

melting operation increases capacity 

after startup such that the annual metal 

melt capacity equals or exceeds 600 tpy, 

you must submit a written notification 

of applicability to the Administrator 

within 30 days after the capacity 

increase year and comply at the time of 

the capacity increase. 

(b) This subpart applies to each new 

or existing affected source located at an 

aluminum, copper or other nonferrous 

foundry that is an area source as defined 

by § 63.2. The affected source is the 

collection of all melting operations 

located at an aluminum, copper, or 

other nonferrous foundry. 

(c) An affected source is an existing 

source if you commenced construction 

or reconstruction of the affected source 

on or before February 9, 2009. 

(d) An affected source is a new source 

if you commenced construction or 

reconstruction of the affected source 

after February 9, 2009. 

(e) This subpart does not apply to 

research or laboratory facilities, as 

defined in section 112(c)(7) of the Clean 

Air Act. 

(f) You are exempt from the obligation 

to obtain a permit under 40 CFR part 70 

or 40 CFR part 71, provided you are not 

otherwise required to obtain a permit 

under 40 CFR 70.3(a) or 40 CFR 71.3(a) 

for a reason other than your status as an 

area source under this subpart. 

Notwithstanding the previous sentence, 

you must continue to comply with the 

provisions of this subpart applicable to 

area sources. 

§ 63.11545 What are my compliance 

dates? 

(a) If you own or operate an existing 

affected source, you must achieve 

compliance with the applicable 

provisions of this subpart no later than 

June 27, 2011. 

(b) If you start up a new affected 

source on or before June 25, 2009, you 

must achieve compliance with the 

provisions of this subpart no later than 

June 25, 2009. 

(c) If you start up a new affected 

source after June 25, 2009, you must 

achieve compliance with the provisions 

of this subpart upon startup of your 

affected source. 

Standards and Compliance 

Requirements 

§ 63.11550 What are my standards and 

management practices? 

(a) If you own or operate new or 

existing affected sources at an 

aluminum foundry, copper foundry, or 

other nonferrous foundry that is subject 

to this subpart, you must comply with 

the requirements in paragraphs (a)(1) 

through (3) of this section. 

(1) Cover or enclose each melting 

furnace that is equipped with a cover or 

enclosure during the melting operation 

to the extent practicable (e.g., except 

when access is needed; including, but 

not limited to charging, alloy addition, 

and tapping). 

(2) Purchase only metal scrap that has 

been depleted (to the extent practicable) 

of aluminum foundry HAP, copper 

foundry HAP, or other nonferrous 

foundry HAP (as applicable) in the 

materials charged to the melting 

furnace, except metal scrap that is 

purchased specifically for its HAP metal 

content for use in alloying or to meet 

specifications for the casting. This 

requirement does not apply to material 

that is not scrap (e.g., ingots, alloys, 

sows) or to materials that are not 

purchased (e.g., internal scrap, customer 

returns). 

(3) Prepare and operate pursuant to a 

written management practices plan. The 

management practices plan must 

include the required management 

practices in paragraphs (a)(1) and (2) of 

this section and may include any other 

management practices that are 

implemented at the facility to minimize 

emissions from melting furnaces. You 

must inform your appropriate 

employees of the management practices 

that they must follow. You may use 

your standard operating procedures as 

the management practices plan 

provided the standard operating 

procedures include the required 

management practices in paragraphs 

(a)(1) and (2) of this section. 

(b) If you own or operate a new or 

existing affected source that is located at 

a large foundry as defined in § 63.11556, 

you must comply with the additional 

requirements in paragraphs (b)(1) and 

(2) of this section. 

(1) For existing affected sources 

located at a large foundry, you must 

achieve a particulate matter (PM) 

control efficiency of at least 95.0 percent 

or emit no more than an outlet PM 

concentration limit of 0.034 grams per 

dry standard cubic meter (g/dscm) 

(0.015 grains per dry standard cubic feet 

(gr/dscf)). 

(2) For new affected sources located at 

a large foundry, you must achieve a PM 

control efficiency of at least 99.0 percent 

or emit no more than an outlet PM 

concentration limit of at most 0.023 g/ 

dscm (0.010 gr/dscf). 

(c) If you own or operate an affected 

source at a small foundry that 

subsequently becomes a large foundry 

after the applicable compliance date, 

you must meet the requirements in 

paragraphs (c)(1) through (3) of this 

section. 

(1) You must notify the Administrator 

within 30 days after the capacity 

increase or the production increase, 

whichever is appropriate; 

(2) You must modify any applicable 

permit limits within 30 days after the 

capacity increase or the production 

increase to reflect the current 

production or capacity, if not done so 

prior to the increase; 

(3) You must comply with the PM 

control requirements in paragraph (b) of 

this section no later than 2 years from 

the date of issuance of the permit for the 

capacity increase or production 

increase, or in the case of no permit 

issuance, the date of the increase in 

capacity or production, whichever 

occurs first. 

(d) These standards apply at all times. 

§ 63.11551 What are my initial compliance 

requirements? 

(a) Except as specified in paragraph 

(b) of this section, you must conduct a 

performance test for existing and new 

sources at a large copper or other 

nonferrous foundry that is subject to 

§ 63.11550(b). You must conduct the 

test within 180 days of your compliance 

date and report the results in your 

Notification of Compliance Status 

according to § 63.9(h). 

(b) If you own or operate an existing 

affected source at a large copper or other 

nonferrous foundry that is subject to 

§ 63.11550(b), you are not required to 

conduct a performance test if a prior 

performance test was conducted within 

the past 5 years of the compliance date 

using the same methods specified in 

paragraph (c) of this section and you 

meet either of the following two 

conditions: 


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(1) No process changes have been 

made since the test; or 

(2) You demonstrate to the 

satisfaction of the permitting authority 

that the results of the performance test, 

with or without adjustments, reliably 

demonstrate compliance despite process 

changes. 

(c) You must conduct each 

performance test according to the 

requirements in § 63.7 and the 

requirements in paragraphs (c)(1) and 

(2) of this section. 

(1) You must determine the 

concentration of PM (for the 

concentration standard) or the mass rate 

of PM in pounds per hour at the inlet 

and outlet of the control device (for the 

percent reduction standard) according 

to the following test methods: 

(i) Method 1 or 1A (40 CFR part 60, 

appendix A–1) to select sampling port 

locations and the number of traverse 

points in each stack or duct. If you are 

complying with the concentration 

provision in § 63.11550(b), sampling 

sites must be located at the outlet of the 

control device and prior to any releases 

to the atmosphere. If you are complying 

with the percent reduction provision in 

§ 63.11550(b), sampling sites must be 

located at the inlet and outlet of the 

control device and prior to any releases 

to the atmosphere. 

(ii) Method 2, 2A, 2C, 2D, 2F (40 CFR 

part 60, appendix A–1), or Method 2G 

(40 CFR part 60, appendix A–2) to 

determine the volumetric flow rate of 

the stack gas. 

(iii) Method 3, 3A, or 3B (40 CFR part 

60, appendix A–2) to determine the dry 

molecular weight of the stack gas. You 

may use ANSI/ASME PTC 19.10–1981, 

‘‘Flue and Exhaust Gas Analyses’’ 

(incorporated by reference—see § 63.14) 

as an alternative to EPA Method 3B. 

(iv) Method 4 (40 CFR part 60, 

appendix A–3) to determine the 

moisture content of the stack gas. 

(v) Method 5 or 5D (40 CFR part 60, 

appendix A–3) or Method 17 (40 CFR 

part 60, appendix A–6) to determine the 

concentration of PM or mass rate of PM 

(front half filterable catch only). If you 

choose to comply with the percent 

reduction PM standard, you must 

determine the mass rate of PM at the 

inlet and outlet in pounds per hour and 

calculate the percent reduction in PM. 

(2) Three valid test runs are needed to 

comprise a performance test. Each run 

must cover at least one production cycle 

(charging, melting, and tapping). 

(3) For a source with a single control 

device exhausted through multiple 

stacks, you must ensure that three runs 

are performed by a representative 

sampling of the stacks satisfactory to the 

Administrator or his or her delegated 

representative. You must provide data 

or an adequate explanation why the 

stack(s) chosen for testing are 

representative. 

§ 63.11552 What are my monitoring 

requirements? 

(a) You must record the information 

specified in § 63.11553(c)(2) to 

document conformance with the 

management practices plan required in 

§ 63.11550(a). 

(b) Except as specified in paragraph 

(b)(3) of this section, if you own or 

operate an existing affected source at a 

large foundry, you must conduct visible 

emissions monitoring according to the 

requirements in paragraphs (b)(1) and 

(2) of this section. 

(1) You must conduct visual 

monitoring of the fabric filter discharge 

point(s) (outlets) for any VE according to 

the schedule specified in paragraphs 

(b)(1)(i) and (ii) of this section. 

(i) You must perform a visual 

determination of emissions once per 

day, on each day the process is in 

operation, during melting operations. 

(ii) If no VE are detected in 

consecutive daily visual monitoring 

performed in accordance with 

paragraph (b)(1)(i) of this section for 30 

consecutive days or more of operation of 

the process, you may decrease the 

frequency of visual monitoring to once 

per calendar week of time the process is 

in operation, during melting operations. 

If VE are detected during these 

inspections, you must resume daily 

visual monitoring of that operation 

during each day that the process is in 

operation, in accordance with paragraph 

(b)(1)(i) of this section until you satisfy 

the criteria of this section to resume 

conducting weekly visual monitoring. 

(2) If the visual monitoring reveals the 

presence of any VE, you must initiate 

procedures to determine the cause of the 

emissions within 1 hour of the initial 

observation and alleviate the cause of 

the emissions within 3 hours of initial 

observation by taking whatever 

corrective action(s) are necessary. You 

may take more than 3 hours to alleviate 

a specific condition that causes VE if 

you identify in the monitoring plan this 

specific condition as one that could lead 

to VE in advance, you adequately 

explain why it is not feasible to alleviate 

this condition within 3 hours of the 

time the VE occurs, and you 

demonstrate that the requested time will 

ensure alleviation of this condition as 

expeditiously as practicable. 

(3) As an alternative to the monitoring 

requirements for an existing affected 

source in paragraphs (b)(1) and (2) of 

this section, you may install, operate, 

and maintain a bag leak detection 

system for each fabric filter according to 

the requirements in paragraph (c) of this 

section. 

(c) If you own or operate a new 

affected source located at a large 

foundry subject to the PM requirements 

in § 63.11550(b)(2) that is equipped with 

a fabric filter, you must install, operate, 

and maintain a bag leak detection 

system for each fabric filter according to 

paragraphs (c)(1) through (4) of this 

section. 

(1) Each bag leak detection system 

must meet the specifications and 

requirements in paragraphs (c)(1)(i) 

through (viii) of this section. 

(i) The bag leak detection system must 

be certified by the manufacturer to be 

capable of detecting PM emissions at 

concentrations of 1 milligram per actual 

cubic meter (0.00044 grains per actual 

cubic foot) or less. 

(ii) The bag leak detection system 

sensor must provide output of relative 

PM loadings. You must continuously 

record the output from the bag leak 

detection system using electronic or 

other means (e.g., using a strip chart 

recorder or a data logger). 

(iii) The bag leak detection system 

must be equipped with an alarm system 

that will sound when the system detects 

an increase in relative particulate 

loading over the alarm set point 

established according to paragraph 

(c)(1)(iv) of this section, and the alarm 

must be located such that it can be 

heard by the appropriate plant 

personnel. 

(iv) In the initial adjustment of the bag 

leak detection system, you must 

establish, at a minimum, the baseline 

output by adjusting the sensitivity 

(range) and the averaging period of the 

device, the alarm set points, and the 

alarm delay time. 

(v) Following initial adjustment, you 

must not adjust the averaging period, 

alarm set point, or alarm delay time 

without approval from the 

Administrator or delegated authority, 

except as provided in paragraph 

(c)(1)(vi) of this section. 

(vi) Once per quarter, you may adjust 

the sensitivity of the bag leak detection 

system to account for seasonal effects, 

including temperature and humidity, 

according to the procedures identified 

in the site-specific monitoring plan 

required by paragraph (c)(2) of this 

section. 

(vii) You must install the bag leak 

detection sensor downstream of the 

fabric filter. 

(viii) Where multiple detectors are 

required, the system’s instrumentation 

and alarm may be shared among 

detectors. 


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(2) You must prepare a site-specific 

monitoring plan for each bag leak 

detection system. You must operate and 

maintain each bag leak detection system 

according to the plan at all times. Each 

monitoring plan must describe the items 

in paragraphs (c)(2)(i) through (vi) of 

this section. 

(i) Installation of the bag leak 

detection system; 

(ii) Initial and periodic adjustment of 

the bag leak detection system, including 

how the alarm set-point and alarm delay 

time will be established; 

(iii) Operation of the bag leak 

detection system, including quality 

assurance procedures; 

(iv) How the bag leak detection 

system will be maintained, including a 

routine maintenance schedule and spare 

parts inventory list; 

(v) How the bag leak detection system 

output will be recorded and stored; and 

(vi) Corrective action procedures as 

specified in paragraph (c)(3) of this 

section. 

(3) Except as provided in paragraph 

(c)(4) of this section, you must initiate 

procedures to determine the cause of 

every alarm from a bag leak detection 

system within 1 hour of the alarm and 

alleviate the cause of the alarm within 

3 hours of the alarm by taking whatever 

corrective action(s) are necessary. 

Corrective actions may include, but are 

not limited to, the following: 

(i) Inspecting the fabric filter for air 

leaks, torn or broken bags or filter 

media, or any other condition that may 

cause an increase in PM emissions; 

(ii) Sealing off defective bags or filter 

media; 

(iii) Replacing defective bags or filter 

media, or otherwise repairing the 

control device; 

(iv) Sealing off a defective fabric filter 

compartment; 

(v) Cleaning the bag leak detection 

system probe, or otherwise repairing the 

bag leak detection system; or 

(4) You may take more than 3 hours 

to alleviate a specific condition that 

causes an alarm if you identify in the 

monitoring plan this specific condition 

as one that could lead to an alarm, 

adequately explain why it is not feasible 

to alleviate this condition within 3 

hours of the time the alarm occurs, and 

demonstrate that the requested time will 

ensure alleviation of this condition as 

expeditiously as practicable. 

(d) If you use a control device other 

than a fabric filter for new or existing 

affected sources subject to § 63.11550(b), 

you must submit a request to use an 

alternative monitoring procedure as 

required in § 63.8(f)(4). 

§ 63.11553 What are my notification, 

reporting, and recordkeeping 

requirements? 

(a) You must submit the Initial 

Notification required by § 63.9(b)(2) no 

later than 120 calendar days after June 

25, 2009 or within 120 days after the 

source becomes subject to the standard. 

The Initial Notification must include the 

information specified in paragraphs 

(a)(1) through (3) of this section and 

may be combined with the Notification 

of Compliance Status required in 

paragraph (b) of this section. 

(1) The name and address of the 

owner or operator; 

(2) The address (i.e., physical 

location) of the affected source; and 

(3) An identification of the relevant 

standard, or other requirement, that is 

the basis of the notification and source’s 

compliance date. 

(b) You must submit the Notification 

of Compliance Status required by 

§ 63.9(h) no later than 120 days after the 

applicable compliance date specified in 

§ 63.11545 unless you must conduct a 

performance test. If you must conduct a 

performance test, you must submit the 

Notification of Compliance Status 

within 60 days of completing the 

performance test. Your Notification of 

Compliance Status must indicate if you 

are a small or large foundry as defined 

in § 63.11556, the production amounts 

as the basis for the determination, and 

if you are a large foundry, whether you 

elect to comply with the control 

efficiency requirement or PM 

concentration limit in § 63.11550(b). In 

addition to the information required in 

§ 63.9(h)(2) and § 63.11551, your 

notification must include the following 

certification(s) of compliance, as 

applicable, and signed by a responsible 

official: 

(1) ‘‘This facility will operate in a 

manner that minimizes HAP emissions 

from the melting operations to the 

extent possible. This includes at a 

minimum that the owners and/or 

operators of the affected source will 

cover or enclose each melting furnace 

that is equipped with a cover or 

enclosure during melting operations to 

the extent practicable as required in 

63.11550(a)(1).’’ 

(2) ‘‘This facility agrees to purchase 

only metal scrap that has been depleted 

(to the extent practicable) of aluminum 

foundry HAP, copper foundry HAP, or 

other nonferrous foundries HAP (as 

applicable) in the materials charged to 

the melting furnace, except for metal 

scrap that is purchased specifically for 

its HAP metal content for use in 

alloying or to meet specifications for the 

casting as required by 63.11550(a)(2).’’ 

(3) ‘‘This facility has prepared and 

will operate by a written management 

practices plan according to 

§ 63.11550(a)(3).’’ 

(4) If the owner or operator of an 

existing affected source at a large 

foundry is certifying compliance based 

on the results of a previous performance 

test: ‘‘This facility complies with 

§ 63.11550(b) based on a previous 

performance test in accordance with 

§ 63.11551(b).’’ 

(4) This certification of compliance is 

required by the owner or operator that 

installs bag leak detection systems: 

‘‘This facility has installed a bag leak 

detection system in accordance with 

§ 63.11552(b)(3) or (c), has prepared a 

bag leak detection system monitoring 

plan in accordance with § 63.11552(c), 

and will operate each bag leak detection 

system according to the plan.’’ 

(c) You must keep the records 

specified in paragraphs (c)(1) through 

(5) of this section. 

(1) As required in § 63.10(b)(2)(xiv), 

you must keep a copy of each 

notification that you submitted to 

comply with this subpart and all 

documentation supporting any Initial 

Notification or Notification of 

Compliance Status that you submitted. 

(2) You must keep records to 

document conformance with the 

management practices plan required by 

§ 63.11550 as specified in paragraphs 

(c)(2)(i) and (ii) of this section. 

(i) For melting furnaces equipped 

with a cover or enclosure, records must 

identify each melting furnace equipped 

with a cover or enclosure and document 

that the procedures in the management 

practices plan were followed during the 

monthly inspections. These records may 

be in the form of a checklist. 

(ii) Records documenting that you 

purchased only metal scrap that has 

been depleted of HAP metals (to the 

extent practicable) charged to the 

melting furnace. If you purchase scrap 

metal specifically for the HAP metal 

content for use in alloying or to meet 

specifications for the casting, you must 

keep records to document that the HAP 

metal is included in the material 

specifications for the cast metal product. 

(3) You must keep the records of all 

performance tests, inspections and 

monitoring data required by §§ 63.11551 

and 63.11552, and the information 

identified in paragraphs (c)(3)(i) through 

(vi) of this section for each required 

inspection or monitoring. 

(i) The date, place, and time of the 

monitoring event; 

(ii) Person conducting the monitoring; 

(iii) Technique or method used; 

(iv) Operating conditions during the 

activity; 


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(v) Results, including the date, time, 

and duration of the period from the time 

the monitoring indicated a problem 

(e.g., VE) to the time that monitoring 

indicated proper operation; and 

(vi) Maintenance or corrective action 

taken (if applicable). 

(4) If you own or operate a new or 

existing affected source at a small 

foundry that is not subject to 

§ 63.11550(b), you must maintain 

records to document that your facility 

melts less than 6,000 tpy total of copper, 

other nonferrous metal, and all 

associated alloys (excluding aluminum) 

in each calendar year. 

(5) If you use a bag leak detection 

system, you must keep the records 

specified in paragraphs (c)(5)(i) through 

(iii) of this section. 

(i) Records of the bag leak detection 

system output. 

(ii) Records of bag leak detection 

system adjustments, including the date 

and time of the adjustment, the initial 

bag leak detection system settings, and 

the final bag leak detection system 

settings. 

(iii) The date and time of all bag leak 

detection system alarms, and for each 

valid alarm, the time you initiated 

corrective action, the corrective action 

taken, and the date on which corrective 

action was completed. 

(d) Your records must be in a form 

suitable and readily available for 

expeditious review, according to 

§ 63.10(b)(1). As specified in 

§ 63.10(b)(1), you must keep each record 

for 5 years following the date of each 

recorded action. For records of annual 

metal melt production, you must keep 

the records for 5 years from the end of 

the calendar year. You must keep each 

record onsite for at least 2 years after the 

date of each recorded action according 

to § 63.10(b)(1). You may keep the 

records offsite for the remaining 3 years. 

(e) If a deviation occurs during a 

semiannual reporting period, you must 

submit a compliance report to your 

permitting authority according to the 

requirements in paragraphs (e)(1) and 

(2) of this section. 

(1) The first reporting period covers 

the period beginning on the compliance 

date specified in § 63.11545 and ending 

on June 30 or December 31, whichever 

date comes first after your compliance 

date. Each subsequent reporting period 

covers the semiannual period from 

January 1 through June 30 or from July 

1 through December 31. Your 

compliance report must be postmarked 

or delivered no later than July 31 or 

January 31, whichever date comes first 

after the end of the semiannual 

reporting period. 

(2) A compliance report must include 

the information in paragraphs (e)(2)(i) 

through (iv) of this section. 

(i) Company name and address. 

(ii) Statement by a responsible 

official, with the official’s name, title, 

and signature, certifying the truth, 

accuracy and completeness of the 

content of the report. 

(iii) Date of the report and beginning 

and ending dates of the reporting 

period. 

(iv) Identification of the affected 

source, the pollutant being monitored, 

applicable requirement, description of 

deviation, and corrective action taken. 

Other Requirements and Information 

§ 63.11555 What General Provisions apply 

to this subpart? 

Table 1 to this subpart shows which 

parts of the General Provisions in 

§§ 63.1 through 63.16 apply to you. 

§ 63.11556 What definitions apply to this 

subpart? 

Terms used in this subpart are 

defined in the Clean Air Act, in § 63.2, 

and in this section as follows: 

Aluminum foundry means a facility 

that melts aluminum and pours molten 

aluminum into molds to manufacture 

aluminum castings (except die casting) 

that are complex shapes. For purposes 

of this subpart, this definition does not 

include primary or secondary metal 

producers that cast molten aluminum to 

produce simple shapes such as sows, 

ingots, bars, rods, or billets. 

Aluminum foundry HAP means any 

compound of the following metals: 

beryllium, cadmium, lead, manganese, 

or nickel, or any of these metals in the 

elemental form. 

Annual copper and other nonferrous 

foundry metal melt capacity means, for 

new affected sources, the lower of the 

copper and other nonferrous metal 

melting operation capacity, assuming 

8,760 operating hours per year or, if 

applicable, the maximum permitted 

copper and other nonferrous metal 

melting operation production rate for 

the melting operation calculated on an 

annual basis. Unless otherwise specified 

in the permit, permitted copper and 

other nonferrous metal melting 

operation rates that are not specified on 

an annual basis must be annualized 

assuming 24 hours per day, 365 days 

per year of operation. If the permit 

limits the operating hours of the melting 

operation(s) or foundry, then the 

permitted operating hours are used to 

annualize the maximum permitted 

copper and other nonferrous metal melt 

production rate. The annual copper and 

other nonferrous metal melt capacity 

does not include the melt capacity for 

ferrous metal melted in iron or steel 

foundry melting operations that are colocated with copper or other nonferrous 

melting operations or the nonferrous 

metal melted in non-foundry melting 

operations. 

Annual copper and other nonferrous 

foundry metal melt production means, 

for existing affected sources, the 

quantity of copper and other nonferrous 

metal melted in melting operations at 

the foundry in a given calendar year. 

For the purposes of this subpart, metal 

melt production is determined on the 

basis of the quantity of metal charged to 

the melting operations. The annual 

copper and nonferrous metal melt 

production does not include the melt 

production of ferrous metal melted in 

iron or steel foundry melting operations 

that are co-located with copper and 

other nonferrous melting operations or 

the nonferrous metal melted in nonfoundry melting operations. 

Annual metal melt capacity, for new 

affected sources, means the lower of the 

aluminum, copper, and other 

nonferrous metal melting operation 

capacity, assuming 8,760 operating 

hours per year or, if applicable, the 

maximum permitted aluminum, copper, 

and other nonferrous metal melting 

operation production rate for the 

melting operation calculated on an 

annual basis. Unless otherwise specified 

in the permit, permitted aluminum, 

copper, and other nonferrous metal 

melting operation rates that are not 

specified on an annual basis must be 

annualized assuming 24 hours per day, 

365 days per year of operation. If the 

permit limits the operating hours of the 

melting operation(s) or foundry, then 

the permitted operating hours are used 

to annualize the maximum permitted 

aluminum, copper, and other 

nonferrous metal melt production rate. 

The annual metal melt capacity does not 

include the melt capacity for ferrous 

metal melted in iron or steel foundry 

melting operations that are co-located 

with aluminum, copper, or other 

nonferrous melting operations or the 

nonferrous metal melted in non-foundry 

melting operations. 

Annual metal melt production means, 

for existing affected sources, the 

quantity of aluminum, copper, and 

other nonferrous metal melted in 

melting operations at the foundry in a 

given calendar year. For the purposes of 

this subpart, annual metal melt 

production is determined on the basis of 

the quantity of metal charged to the 

melting operations. The annual metal 

melt production does not include the 

melt production of ferrous metal melted 

in iron or steel foundry melting 

operations that are co-located with 


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aluminum, copper, or other nonferrous 

melting operations or the nonferrous 

metal melted in non-foundry melting 

operations. 

Bag leak detection system means a 

system that is capable of continuously 

monitoring relative PM (i.e., dust) 

loadings in the exhaust of a baghouse to 

detect bag leaks and other upset 

conditions. A bag leak detection system 

includes, but is not limited to, an 

instrument that operates on 

triboelectric, light scattering, light 

transmittance, or other effect to 

continuously monitor relative PM 

loadings. 

Copper foundry means a foundry that 

melts copper or copper-based alloys and 

pours molten copper or copper-based 

alloys into molds to manufacture copper 

or copper-based alloy castings 

(excluding die casting) that are complex 

shapes. For purposes of this subpart, 

this definition does not include primary 

or secondary metal producers that cast 

molten copper to produce simple shapes 

such as sows, ingots, billets, bars, anode 

copper, rods, or copper cake. 

Copper foundry HAP means any 

compound of any of the following 

metals: lead, manganese, or nickel, or 

any of these metals in the elemental 

form. 

Deviation means any instance where 

an affected source subject to this 

subpart, or an owner or operator of such 

a source: 

(1) Fails to meet any requirement or 

obligation established by this subpart, 

including but not limited to any 

emissions limitation or work practice 

standard; 

(2) Fails to meet any term or condition 

that is adopted to implement an 

applicable requirement in this subpart 

and that is included in the operating 

permit for any affected source required 

to obtain such a permit; or 

(3) Fails to meet any emissions 

limitation in this subpart during startup, 

shutdown, or malfunction, regardless of 

whether or not such failure is permitted 

by this subpart. 

Die casting means operations 

classified under the North American 

Industry Classification System codes 

331521 (Aluminum Die-Casting 

Foundries) and 331522 (Nonferrous 

(except Aluminum) Die-Casting 

Foundries) and comprises 

establishments primarily engaged in 

introducing molten aluminum, copper, 

and other nonferrous metal, under high 

pressure, into molds or dies to make 

die-castings. 

Large foundry means, for an existing 

affected source, a copper or other 

nonferrous foundry with an annual 

metal melt production of copper, other 

nonferrous metals, and all associated 

alloys (excluding aluminum) of 6,000 

tons or greater. For a new affected 

source, large foundry means a copper or 

other nonferrous foundry with an 

annual metal melt capacity of copper, 

other nonferrous metals, and all 

associated alloys (excluding aluminum) 

of 6,000 tons or greater. 

Material containing aluminum 

foundry HAP means a material 

containing one or more aluminum 

foundry HAP. Any material that 

contains beryllium, cadmium, lead, or 

nickel in amounts greater than or equal 

to 0.1 percent by weight (as the metal), 

or contains manganese in amounts 

greater than or equal to 1.0 percent by 

weight (as the metal), as shown in 

formulation data provided by the 

manufacturer or supplier, such as the 

Material Safety Data Sheet for the 

material, is considered to be a material 

containing aluminum foundry HAP. 

Material containing copper foundry 

HAP means a material containing one or 

more copper foundry HAP. Any 

material that contains lead or nickel in 

amounts greater than or equal to 0.1 

percent by weight (as the metal), or 

contains manganese in amounts greater 

than or equal to 1.0 percent by weight 

(as the metal), as shown in formulation 

data provided by the manufacturer or 

supplier, such as the Material Safety 

Data Sheet for the material, is 

considered to be a material containing 

copper foundry HAP. 

Material containing other nonferrous 

foundry HAP means a material 

containing one or more other nonferrous 

foundry HAP. Any material that 

contains chromium, lead, or nickel in 

amounts greater than or equal to 0.1 

percent by weight (as the metal), as 

shown in formulation data provided by 

the manufacturer or supplier, such as 

the Material Safety Data Sheet for the 

material, is considered to be a material 

containing other nonferrous foundry 

HAP. 

Melting operations (the affected 

source) means the collection of furnaces 

(e.g., induction, reverberatory, crucible, 

tower, dry hearth) used to melt metal 

ingot, alloyed ingot and/or metal scrap 

to produce molten metal that is poured 

into molds to make castings. Melting 

operations dedicated to melting ferrous 

metal at an iron and steel foundry are 

not included in this definition and are 

not part of the affected source. 

Other nonferrous foundry means a 

facility that melts nonferrous metals 

other than aluminum, copper, or 

copper-based alloys and pours the 

nonferrous metals into molds to 

manufacture nonferrous metal castings 

(excluding die casting) that are complex 

shapes. For purposes of this subpart, 

this definition does not include primary 

or secondary metal producers that cast 

molten nonferrous metals to produce 

simple shapes such as sows, ingots, 

bars, rods, or billets. 

Other nonferrous foundry HAP means 

any compound of the following metals: 

chromium, lead, and nickel, or any of 

these metals in the elemental form. 

Small foundry means, for an existing 

affected source, a copper or other 

nonferrous foundry with an annual 

metal melt production of copper, other 

nonferrous metals, and all associated 

alloys (excluding aluminum) of less 

than 6,000 tons. For a new affected 

source, small foundry means a copper or 

other nonferrous foundry with an 

annual metal melt capacity of copper, 

other nonferrous metals, and all 

associated alloys (excluding aluminum) 

of less than 6,000 tons. 

§ 63.11557 Who implements and enforces 

this subpart? 

(a) This subpart can be implemented 

and enforced by the U.S. EPA or a 

delegated authority, such as your State, 

local, or Tribal agency. If the U.S. EPA 

Administrator has delegated authority to 

your State, local, or Tribal agency, then 

that agency has the authority to 

implement and enforce this subpart. 

You should contact your U.S. EPA 

Regional Office to find out if this 

subpart is delegated to your State, local, 

or Tribal agency. 

(b) In delegating implementation and 

enforcement authority of this subpart to 

a State, local, or Tribal agency under 40 

CFR part 63, subpart E, the authorities 

contained in paragraph (c) of this 

section are retained by the 

Administrator of the U.S. EPA and are 

not transferred to the State, local, or 

Tribal agency. 

(c) The authorities that will not be 

delegated to State, local, or Tribal 

agencies are listed in paragraphs (c)(1) 

through (4) of this section. 

(1) Approval of alternatives to the 

applicability requirements in 

§ 63.11544, the compliance date 

requirements in § 63.11545, and the 

applicable standards in § 63.11550. 

(2) Approval of an alternative 

nonopacity emissions standard under 

§ 63.6(g). 

(3) Approval of a major change to a 

test method under § 63.7(e)(2)(ii) and (f). 

A ‘‘major change to test method’’ is 

defined in § 63.90(a). 

(4) Approval of a major change to 

monitoring under § 63.8(f). A ‘‘major 

change to monitoring’’ is defined in 

§ 63.90(a). 

(5) Approval of a waiver of 

recordkeeping or reporting requirements 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 121 / Thursday, June 25, 2009 / Rules and Regulations 30399 

under § 63.10(f), or another major 

change to recordkeeping/reporting. A 

‘‘major change to recordkeeping/ 

reporting’’ is defined in § 63.90(a). 

§ 63.11558 [Reserved] 

Tables to Subpart ZZZZZZ of Part 63 

Table 1 to Subpart ZZZZZZ of Part 

63—Applicability of General Provisions 

to Aluminum, Copper, and Other 

Nonferrous Foundries Area Sources 

As required in § 63.11555, ‘‘What 

General Provisions apply to this 

subpart?,’’ you must comply with each 

requirement in the following table that 

applies to you. 

Citation Subject 

Applies to 

subpart 

ZZZZZZ? 

Explanation 

§ 63.1(a)(1), (a)(2), (a)(3), (a)(4), (a)(6), 

(a)(10)–(a)(12), (b)(1), (b)(3), (c)(1), 

(c)(2), (c)(5), (e).

Applicability .............................................. Yes .............. § 63.11544(f) exempts affected sources 

from the obligation to obtain a title V 

operating permit. 

§ 63.1(a)(5), (a)(7)–(a)(9), (b)(2), (c)(3), 

(c)(4), (d).

Reserved .................................................. No.

§ 63.2 ......................................................... Definitions ................................................ Yes.

§ 63.3 ......................................................... Units and Abbreviations ........................... Yes.

§ 63.4 ......................................................... Prohibited Activities and Circumvention .. Yes.

§ 63.5 ......................................................... Preconstruction Review and Notification 

Requirements.

Yes.

§ 63.6(a), (b)(1)–(b)(5), (b)(7), (c)(1), 

(c)(2), (c)(5), (e)(1), (e)(3)(i), (e)(3)(iii)– 

(e)(3)(ix), (f)(2), (f)(3), (g), (i), (j).

Compliance with Standards and Maintenance Requirements.Yes.

§ 63.6(f)(1) ................................................. Compliance with Nonopacity Emission 

Standards.

No ................ Subpart ZZZZZZ requires continuous 

compliance with all requirements in 

this subpart. 

§ 63.6(h)(1), (h)(2), (h)(5)–(h)(9) ............... Compliance with Opacity and Visible 

Emission Limits.

No ................ Subpart ZZZZZZ does not contain opacity or visible emission limits. 

§ 63.6(b)(6), (c)(3), (c)(4), (d), (e)(2), 

(e)(3)(ii), (h)(3), (h)(5)(iv).

Reserved .................................................. No.

§ 63.7 ......................................................... Applicability and Performance Test Dates Yes.

§ 63.8(a)(1), (b)(1), (f)(1)–(5), (g) .............. Monitoring Requirements ......................... Yes.

§ 63.8(a)(2), (a)(4), (b)(2)–(3), (c), (d), (e), 

(f)(6), (g).

Continuous Monitoring Systems .............. No ................ Subpart ZZZZZZ does not require a flare 

or CPMS, COMS or CEMS. 

§ 63.8(a)(3) ................................................ [Reserved] ................................................ No.

§ 63.9(a), (b)(1), (b)(2)(i)–(iii), (b)(5), (c), 

(d), (e), (h)(1)–(h)(3), (h)(5), (h)(6), (j).

Notification Requirements ........................ Yes .............. Subpart ZZZZZZ requires submission of 

Notification of Compliance Status within 120 days of compliance date unless 

a performance test is required. 

§ 63.9(b)(2)(iv)–(v), (b)(4), (f), (g), (i) ........ .................................................................. No.

§ 63.9(b)(3), (h)(4) ..................................... Reserved .................................................. No.

§ 63.10(a), (b)(1), (b)(2)(i)–(v), (vii), 

(vii)(C), (viii), (ix), (b)(3), (d)(1)–(2), 

(d)(4), (d)(5), (f).

Recordkeeping and Reporting Requirements.Yes.

§ 63.10(b)(2)(vi), (b)(2)(vii)(A)–(B), (c), 

(d)(3), (e).

.................................................................. No ............... Subpart ZZZZZZ does not require a 

CPMS, COMS, CEMS, or opacity or 

visible emissions limit. 

§ 63.10(c)(2)–(c)(4), (c)(9) ......................... Reserved .................................................. No.

§ 63.11 ....................................................... Control Device Requirements .................. No.

§ 63.12 ....................................................... State Authority and Delegations .............. Yes.

§§ 63.13–63.16 .......................................... Addresses, Incorporations by Reference, 

Availability of Information, Performance 

Track Provisions.

Yes.

[FR Doc. E9–14613 Filed 6–24–09; 8:45 am] 

BILLING CODE 6560–50–P 


sroberts on PROD1PC70 with RULES