Vol. 78 Thursday, No. 26 February 7, 2013

Part II

Environmental Protection Agency

40 CFR Parts 60 and 241 Commercial and Industrial Solid Units: Reconsideration and Final Amendments; Non-Hazardous Secondary Materials That Are Solid Waste; Final Rule

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ENVIRONMENTAL PROTECTION 241 are effective April 8, 2013. The I. Organization of This Document AGENCY incorporation by reference of certain The following outline is provided to publications listed in that rule is aid in locating information in this 40 CFR Parts 60 and 241 effective February 7, 2013. preamble. ADDRESSES: The EPA established a [EPA–HQ–OAR–2003–0119 and EPA–HQ– I. Organization of This Document RCRA 2008–0329; FRL–9764–1] single docket under Docket ID Number A. Supplementary Information EPA–HQ–OAR–2003–0119 for this RIN 2060–AR15 and 2050–AG44 B. Does this action apply to me? action on the commercial and industrial C. Where can I get a copy of this Commercial and Industrial Solid Waste solid waste incineration rule. The EPA document? Incineration Units: Reconsideration also established a single docket under D. Judicial Review Docket ID Number EPA–HQ–RCRA– E. Executive Summary and Final Amendments; Non- II. CISWI Reconsideration and Final Rule Hazardous Secondary Materials That 2008–0329 for this action on the non- hazardous secondary materials rule. All A. Background Information Are Solid Waste 1. What is the history of the CISWI documents in the docket are listed in standards? AGENCY: Environmental Protection the http://www.regulations.gov index. 2. How is the definition of solid waste Agency. Although listed in the index, some addressed in the final CISWI rule? ACTION: Final rule; notice of final action information is not publicly available, 3. What is the relationship between this on reconsideration. e.g., confidential business information rule and other combustion rules? or other information whose disclosure is 4. What is the response to the vacatur of SUMMARY: This action sets forth the restricted by statute. Certain other effective dates? EPA’s final decision on the issues for material, such as copyrighted material, B. Summary of This Final Rule which it granted reconsideration in 1. Subcategories of Affected Units and will be publicly available only in hard Emission Standards December 2011, which pertain to certain copy. Publicly available docket 2. Fuel Switching Provisions aspects of the March 21, 2011, final rule materials are available either 3. Definitions of Cyclonic Burn Barrels, titled ‘‘Standards of Performance for electronically in http:// Burn-off Ovens, Soil Treatment Units, New Stationary Sources and Emissions www.regulations.gov or in hard copy at Laboratory Analysis Units and Space Guidelines for Existing Sources: the EPA Docket Center, EPA West Heaters Commercial and Industrial Solid Waste Building, Room 3334, 1301 Constitution 4. Affirmative Defense for Malfunction Incineration Units’’ (CISWI rule). This Ave. NW., Washington, DC. The Public Events action also includes our final decision 5. Oxygen Correction Requirements and Reading Room is open from 8:30 a.m. to CO Monitoring Requirements to deny the requests for reconsideration 4:30 p.m., Monday through Friday, 6. Full-load Stack Test Requirement for CO with respect to all issues raised in the excluding legal holidays. The telephone Coupled With Continuous O2 Monitoring petitions for reconsideration of the final number for the Public Reading Room is 7. Non-detect Methodology Using Three commercial and industrial solid waste (202) 566–1744 and the telephone Times the Detection Level incineration rule for which we did not number for the Docket Center is (202) 8. Definitions for Foundry Sand Thermal grant reconsideration. Among other 566–1742. Reclamation Unit and Chemical Recovery Unit things, this final action establishes FOR FURTHER INFORMATION CONTACT: For 9. Definition of Contained Gaseous effective dates for the standards and further information regarding the makes technical corrections to the final Material commercial and industrial solid waste 10. Parametric Monitoring Provisions for rule to clarify definitions, references, incineration reconsideration and final Additional Control Device Types applicability and compliance issues. In amendments, contact Ms. Toni Jones, 11. Particulate Matter Continuous addition, the EPA is issuing final Fuels and Incineration Group, Sector Monitoring Provisions for Large ERUs amendments to the regulations that Policies and Programs Division (E143– and Waste-burning Kilns were codified by the Non-Hazardous 05), Environmental Protection Agency, 12. Revised Definition of Waste-burning Secondary Materials rule (NHSM rule). Research Triangle Park, North Carolina Kiln 13. Revised Definition of Solid Waste Originally promulgated on March 21, 27711; telephone number: (919) 541– 2011, the non-hazardous secondary 14. Compliance Dates 0316; fax number: (919) 541–3470; 15. Revised New Source Performance materials rule provides the standards email address: [email protected], or Standards and procedures for identifying whether Ms. Amy Hambrick, Fuels and C. Summary of Significant Changes Since non-hazardous secondary materials are Incineration Group, Sector Policies and Proposal solid waste under the Resource Programs Division (E143–05), 1. Revision of the Subcategories Conservation and Recovery Act when Environmental Protection Agency, 2. Revisions to the Monitoring used as fuels or ingredients in Research Triangle Park, North Carolina Requirements combustion units. The purpose of these 27711; telephone number: (919) 541– 3. Oxygen Monitoring Requirements 4. Removal of the Definition of amendments is to clarify several 0964; fax number: (919) 541–3470; provisions in order to implement the Homogeneous Waste email address: [email protected]. 5. Non-detect Methodology Using Three non-hazardous secondary materials rule For further information regarding the Times the Detection Level as the agency originally intended. Non-Hazardous Secondary Materials 6. Parametric Monitoring for Additional DATES: The May 18, 2011 (76 FR 28662), final rule, contact Mr. George Faison, Control Device Types delay of the effective date amending Program Implementation and 7. Particulate Matter Continuous subparts CCCC and DDDD at 76 FR Information Division, Office of Resource Monitoring Provisions for Large ERUs 15703 (March 21, 2011) is lifted Conservation and Recovery, 5303P, and Waste-burning Kilns February 7, 2013. The amendments in Environmental Protection Agency, Ariel 8. Compliance Dates 9. Definition of Waste-burning Kiln this rule to 40 CFR part 60, subpart Rios Building, 1200 Pennsylvania 10. Exemption for Other Solid Waste DDDD, are effective February 7, 2013, Avenue NW., Washington, DC 20460– Incineration (OSWI) Units and to 40 CFR part 60, subpart CCCC, 0002; telephone number: 703–305–7652; D. Technical Corrections and Clarifications are effective August 7, 2013. The fax number: 703–308–0509; email E. Major Public Comments and Responses amendments in this rule to 40 CFR part address: [email protected]. F. What other actions are we taking?

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G. What are the impacts associated with D. Unfunded Mandates Reform Act FR Federal Register the amendments? E. Executive Order 13132: Federalism HAP hazardous air 1. What are the primary air impacts? F. Executive Order 13175: Consultation HCl hydrogen chloride 2. What are the water and solid waste and Coordination with Indian Tribal HF hydrogen fluoride impacts? Governments Hg 3. What are the energy impacts? G. Executive Order 13045: Protection of HMI hospital, medical and infectious 4. What are the secondary air impacts? Children from Environmental Health HMIWI Hospital, Medical and Infectious 5. What are the cost and economic Risks and Safety Risks Waste Incineration impacts? H. Executive Order 13211: Actions ICR Information Collection Request 6. What are the benefits? Concerning Regulations That Lb pound III. NHSM Final Revisions Significantly Affect Energy Supply, LML lowest measured level A. Statutory Authority Distribution, or Use Mg milligram B. NHSM Rule History I. National Technology Transfer and Mn manganese C. Introduction—Summary of Regulations Advancement Act MACT maximum achievable control Being Finalized J. Executive Order 12898: Federal Actions technology 1. Revised Definitions to Address Environmental Justice in MDL method detection level a. Clean Cellulosic Minority Populations and Low-Income mg/dscm milligrams per dry standard cubic b. Contaminants Populations meter c. Established Tire Collection Programs K. Congressional Review Act mmBtu/hr million British thermal units per d. Resinated Wood hour 2. Contaminant Legitimacy Criterion for A. Supplementary Information MSW NHSM Used as Fuels MW megawatts 3. Categorical Non-Waste Determinations Acronyms and Abbreviations. The MWC Municipal Waste Combustor for Specific NHSM Used as Fuels following acronyms and abbreviations NAAQS National Ambient Air Quality a. Tires are used in this document. Standards b. Resinated Wood ACI activated carbon injection NAICS North American Industrial c. Coal Refuse AF&PA American Forest & Paper Classification System d. Pulp and Paper Sludge Association NCASI National Council on Air and Stream 4. Rulemaking Petition Process for Other ANPRM Advanced Notice of Proposed Improvement Categorical Non-Waste Determinations Rulemaking ND nondetect (40 CFR 241.4(b)) ANSI American National Standards NESHAP National Emission Standards for 5. Streamlining of the 40 CFR 241.3(c) Institute Hazardous Air Pollutants Non-Waste Determination Petition APA Administrative Procedure Act ng/dscm nanograms per dry standard cubic Process ARIPPA Anthracite Region Independent meter 6. Revised Introductory Text for 40 CFR Power Producers Association NHSM non-hazardous secondary 241.3(a) ASME American Society of Mechanical material(s) D. Comments on the Proposed Rule and Engineers NIST National Institute of Standards and Rationale for Final Decisions AST activated sludge treatment Technology 1. Revised Definitions ASTM American Society for Testing and NOX nitrogen oxides a. Clean Cellulosic Biomass Materials NSPS New Source Performance Standards b. Contaminants ATCM Air Toxic Control Measure NTTAA National Technology Transfer and c. Established Tire Collection Programs Btu British thermal unit Advancement Act 2. Contaminant Legitimacy Criterion for CAA Clean Air Act OAQPS Office of Air Quality Planning and NHSMs Used as Fuels CARB California Air Resources Board Standards a. General Comments on the Revised CBI Confidential Business Information OMB Office of Management and Budget Contaminant Legitimacy Criterion CCA chromated copper arsenate OSWI Other Solid Waste Incineration b. Grouping of Contaminants Cd cadmium OSWER Office of Solid Waste and c. Meaning of Designed to Burn C&D construction & demolition Emergency Response d. Contaminant Comparisons Allowed CDX Central Data Exchange O2 Oxygen 3. Categorical Non-Waste Determinations CFB circulating fluidized bed PAH polycyclic aromatic hydrocarbons for Specific NHSM Used as Fuels CEMS continuous emissions monitoring Pb lead a. Scrap Tires systems PCBs polychlorinated biphenyls b. Resinated Wood CERCLA Comprehensive Environmental PCDD polychlorinated dibenzodioxins 4. Rulemaking Petition Process for Other Response, Compensation, and Liability Act PCDF polychlorinated dibenzofurans Categorical Non-Waste Determinations CFR Code of Federal Regulations PIC product of incomplete combustion (40 CFR 241.4(b)) CISWI Commercial and Industrial Solid PM particulate matter 5. Materials for Which Additional Waste Incineration POM polycyclic organic matter Information was Requested CO carbon monoxide ppm parts per million a. Pulp and Paper Sludge CO2 carbon dioxide ppmv parts per million by volume b. Coal Refuse Catalyst carbon monoxide oxidation ppmvd parts per million by dry volume c. Manure catalyst PQL practical quantitation limit d. Other Materials for Which Additional Cl2 chlorine gas PRA Paper Reduction Act Information was Not Requested CPMS continuous parametric monitoring PS Performance Specification 6. Streamlining of the 40 CFR 241.3(c) system lb/MMBtu pound per million British Non-Waste Determination Petition CWA thermal units Process D/F dioxin/furan RCRA Resource Conservation and Recovery 7. Revised Introductory Text for 40 CFR dscm dry standard cubic meter Act 241.3(a) DSW Definition of Solid Waste RDL reported detection level E. Cost and Benefits of the Final Rule EG emission guidelines RFA Regulatory Flexibility Act IV. Statutory and Executive Order Reviews EJ Environmental Justice RIA Regulatory Impact Analysis A. Executive Order 12866: Regulatory EOM extractable organic matter RIN Regulatory Information Number Planning and Review and Executive EPA U.S. Environmental Protection Agency RTO regenerative thermal oxidizer Order 13563: Improving Regulation and ERT Electronic Reporting Tool RTR residual risk and technology review Regulatory Review ERU energy recovery unit SBA Small Business Administration B. Paperwork Reduction Act ESP electrostatic precipitator SBREFA Small Business Regulatory C. Regulatory Flexibility Act FF fabric filters Enforcement Fairness Act

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SISNOSE Significant Economic Impact on a The Court U.S. Court of Appeals for the USGS United States Geological Survey Substantial Number of Small Entities District of Columbia Circuit VCS Voluntary Consensus Standards SMCRA Surface Control and TMB Total Mass Basis VOC volatile organic compound Reclamation Act of 1977 TOX Total Organic Halogens WWW Worldwide Web SNCR selective noncatalytic reduction tpy tons per year B. Does this action apply to me? SO2 sulfur dioxide TSM Total Selected Metal SSI Sludge Incineration TTN Technology Transfer Network Categories and entities potentially SSM startup, shutdown and malfunction UCL upper confidence limit affected by this action are those that SVOC Semi-Volatile Organic Compound ug/dscm micrograms per dry standard cubic SWDA Solid Waste Disposal Act meter operate CISWI units and those that TBtu tera British thermal unit UMRA Unfunded Mandates Reform Act generate potentially affected NHSMs. TEOM Tapered Element Oscillating UL upper limit The NSPS and EG, hereinafter referred Microbalance UPL upper prediction limit to as ‘‘standards,’’ for CISWI affect the TEQ Toxic Equivalency U.S.C. United States Code following categories of sources:

NAICS 1 Category Code Examples of potentially regulated entities

Any industrial or commercial fa- 211, 212, Oil and Gas Extraction, mining (except oil and gas); Pipeline Transportation cility using a solid waste incin- 486 erator. 221 Utilities 321, 322, Wood Product Manufacturing, Paper Manufacturing, Furniture and Related Product Manufac- 337 turing 325, 326 Chemical Manufacturing, Plastics and Rubber Products Manufacturing 327 Nonmetallic Mineral Product Manufacturing, 333, 336 Machinery Manufacturing, Transportation Equipment Manufacturing 423, 44 Merchant Wholesalers, Durable Goods, Retail Trade Any facility or entity generating 111 Crop Production a non hazardous secondary material that may be burned for fuel or destruction 2. 112 Animal Production 113 Forestry and Logging 115 Support Activities for Agriculture and Forestry 211 Oil and Gas Extraction 212 Mining (except oil and gas) 221 Utilities 236 Construction of Buildings 311 Food Manufacturing 312 Beverage and Tobacco Product Manufacturing 313 Textile Mills 316 Leather and Allied Product Manufacturing 321 Wood Product Manufacturing 322 Paper Manufacturing 324 Petroleum and Coal Products Manufacturing 325 Chemical Manufacturing 326 Plastics and Rubber Products Manufacturing 327 NonMetallic Mineral Product Manufacturing 331 Primary Metal Manufacturing 332 Fabricated Metal Product Manufacturing 333 Machinery Manufacturing 334 Computer and Electronic Product Manufacturing 336 Transportation Equipment Manufacturing 337 Furniture and Related Product Manufacturing 339 Miscellaneous Manufacturing 423 Merchant Wholesalers, Durable Goods 424 Merchant Wholesalers, Nondurable Goods 44–45 Retail Trade (all categories, including non-store retailers, vending and direct sellers) 486 Pipeline Transportation 493 Warehousing and Storage 511 Publishing Industries (except internet) 531 Real Estate 541 Professional, Scientific and Technical Services 611 Educational Services 622 Hospitals 623 Nursing and Residential Care Facilities 624 Social Assistance 713930 Boating Clubs with Marinas 721 Accommodation 722 Food Services and Drinking Places 813 Religious, Grantmaking, Civic, Professional and Similar Organizations 92 Public Administration 1 North American Industry Classification System. 2 Note that some of these NAICS may overlap with institutional facility types where incinerators are regulated by the Other Solid Waste Inciner- ators (OSWI) emission guidelines and NSPS.

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This table is not intended to be Radiation Law Office, Office of General Court’s vacatur of the Delay Notice in exhaustive but rather provides a guide Counsel (Mail Code 2344A), January 2012, this final action lifts the for readers regarding entities likely to be Environmental Protection Agency, 1200 delay of effectiveness so that the CFR affected by the final action. To Pennsylvania Ave. NW., Washington, can be revised to properly reflect the determine whether your facility would DC 20004. Note, under CAA section revisions to the 2000 CISWI rule that be affected by the final action, you 307(b)(2), the requirements established were finalized in the 2011 CISWI rule. should examine the applicability by this final rule may not be challenged This final action also contains criteria in 40 CFR 60.2010 of subpart separately in any civil or criminal regulatory text that amends the 2011 CCCC, 40 CFR 60.2505 of subpart proceedings brought by the EPA to CISWI rule to address the DDDD, and 40 CFR 241. If you have any enforce these requirements. Resource reconsideration. Therefore, this final questions regarding the applicability of Conservation and Recovery Act sections rule’s amendatory language differs from the final action to a particular entity, of the rule would be subject to judicial that of the December 2011 contact the persons listed in the review under RCRA. reconsideration proposal as it amends preceding FOR FURTHER INFORMATION the 2011 CISWI rule instead of the 2000 E. Executive Summary CONTACT section. CISWI rule. This change to the C. Where can I get a copy of this Purpose of the Regulatory Action amendatory baseline in no way alters document? The EPA is promulgating final rules our limitation of the issues for comment that establish standards for new and for which we granted reconsideration. The docket number for the action We have provided in the CISWI docket regarding the CISWI NSPS (40 CFR part existing CISWI units. Section 129 of the CAA, titled ‘‘Solid Waste Combustion,’’ a redline/strikeout file of the 2000 60, subpart CCCC) and EG (40 CFR part CISWI rule to help implementing 60, subpart DDDD) is Docket ID Number requires the EPA to develop and adopt standards for commercial and industrial agencies and affected sources to identify EPA–HQ–OAR–2003–0119. the sum total of the revisions made to Worldwide Web. In addition to being solid waste incineration units pursuant the 2000 CISWI rule through today’s available in the docket, an electronic to CAA sections 111 and 129. This final final notice pursuant to the 2011 CISWI copy of the final action is available on rule makes certain revisions to the final rule and this final action. the WWW through the TTN Web site. ‘‘Standards of Performance for New Following signature, the EPA posted a Stationary Sources and Emission Summary of Major Provisions for the copy of the final action on the TTN’s Guidelines for Existing Sources: Final Reconsideration Rule Commercial and Industrial Solid Waste policy and guidance page for newly In general, the final rule establishes proposed or promulgated rules at Incineration Units,’’ 76 FR 15704 (March 21, 2011), based on the issues revised numeric emission limits for http://www.epa.gov/ttn/oarpg. The TTN some new and existing CISWI units for provides information and technology proposed for reconsideration issues (76 certain of the nine pollutants listed in exchange in various areas of air FR 40582) and in response to public section 129(a)(4) of the CAA.1 control. comments on the proposed CISWI reconsideration rule. The EPA established or revised D. Judicial Review On May 18, 2011, the EPA issued a standards for four subcategories of Under the CAA section 307(b)(1), notice that delayed the effective dates of CISWI units in the 2011 CISWI rule: judicial review of this final rule is the March 21, 2011, CISWI rule (the incinerators; small remote incinerators; available only by filing a petition for ‘‘Delay Notice’’). 76 FR 28662 (May 18, ERUs; and waste-burning kilns. The review in The Court April 8, 2013. 2011). As the result of that action, the 2011 CISWI rule also included two Under CAA section 307(d)(7)(B), only 2000 CISWI rule remained in effect. The subcategories of ERUs. In this final rule, an objection to this final rule that was Court vacated the Delay Notice in we have further subcategorized ERUs raised with reasonable specificity January 2012. However, because the and subcategorized waste-burning kilns during the period for public comment Delay Notice delayed the effectiveness based on design type differences. Thus, can be raised during judicial review. of the CISWI rule from May 2011 the final rule includes three This section also provides a mechanism through vacatur of that notice in January subcategories of ERUs and separate CO for us to convene a proceeding for 2012, the revisions to the 2000 CISWI limits for two subcategories of waste- reconsideration, ‘‘[i]f the person raising rule that were finalized in the 2011 burning kilns. an objection can demonstrate to EPA CISWI rule were never codified in the We have further revised some of the that it was impracticable to raise such CFR, but instead appear as notes after CISWI limits proposed in the objection within [the period for public the corresponding provisions of the reconsideration notice in response to comment] or if the grounds for such 2000 CISWI rule in the CFR. Although comments on CO span methodology and objection arose after the period for the issues on reconsideration were because we incorporated additional public comment (but within the time limited in the December 2011 CISWI data, including new data submitted specified for judicial review) and if such reconsideration proposal, we had to during the comment period. These objection is of central relevance to the include in that proposed changes primarily affect the ERU and outcome of this rule.’’ Any person reconsideration rule all of the regulatory waste-burning kiln subcategories but seeking to make such a demonstration to changes that had been made since the also affect some of the limits in each of us should submit a Petition for 2000 rule because the 2011 CISWI rule the four subcategories. Reconsideration to the Office of the was not codified in the CFR. To ensure compliance with the Administrator, Environmental Specifically, we included in the emission limits, this final rule Protection Agency, Room 3000, Ariel December 23, 2011, proposed establishes stack testing and continuous Rios Building, 1200 Pennsylvania Ave. reconsideration rule all of the regulatory monitoring requirements. The rule NW., Washington, DC 20004, with a changes the EPA had made to the 2000 allows sources to use CEMS if an owner copy to the persons listed in the CISWI rule in the 2011 CISWI rule, as 1 preceding FOR FURTHER INFORMATION well as the changes to the 2011 CISWI The nine pollutants for which we must issue emission standards under section 129 are: PM, SO2, CONTACT section, and the Associate rule that the EPA proposed to make on HCl, NOX, CO, Pb, Cd, Hg, D/F. CAA section General Counsel for the Air and reconsideration. In response to the 129(a)(4).

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or operator chooses to do so. approval but may be no later than the costs and benefits associated with this Continuous parameters and emissions date 5 years after publication of this final rule. Note, these are the costs and levels (if used) are measured as either a final rule in the Federal Register. For benefits of the final 2011 CISWI rule as 3-hour block or a 30-day rolling average new sources, the effective date is either amended by today’s final rule and basis, depending on the parameter being August 7, 2013, or the date of startup of replace the costs and benefits presented measured and the subcategory of CISWI. the source, whichever is later. New in the March 2011 final rule. For Since sources may choose to cease or sources are defined as sources that comparison, the 2011 final rule, at a 7 start combusting solid waste at any time began construction on or after June 4, percent discount rate, had costs of $218 due to market conditions or for other 2010, or commenced reconstruction or million and monetized benefits of $320 reasons, the final rule contains modification after August 7, 2013. to $790 million (2008 dollars). provisions that specify the steps necessary for sources to switch Costs and Benefits (However, because the February 2011 applicability between this final rule and The final rule affects 106 existing RIA did not incorporate the final other applicable emission standards sources located at 76 facilities. The EPA engineering costs and emission issued pursuant to CAA section 112. projects an additional incinerator and reductions estimates, it reported costs of This rule also contains revisions to five additional small remote $280 million and monetized benefits of some of the monitoring, recordkeeping incinerators to be subject to this rule $310 to $750 million (2008 dollars)).A and reporting requirements. over the next 5 years. This final rule more detailed discussion of the costs The date existing sources must applies to facilities in multiple sectors and benefits of this final rule is comply with the final CISWI rule of our economy including small entities. provided in section II.G of this depends primarily on state plan Table 1 of this preamble summarizes the preamble.

TABLE 1—SUMMARY OF THE MONETIZED BENEFITS, SOCIAL COSTS AND NET BENEFITS FOR THE FINAL CISWI NSPS AND EG IN 2015 [Millions of 2008$]1

3 Percent discount 7 Percent discount rate rate

Total Monetized Benefits2 ...... $420 to $1,000 $380 to $930 Total Social Costs3 ...... $258 $258 Net Benefits ...... $160 to $770 $120 to $670

Health effects from exposure to HAP 780 tons of HCl, 2.5 tons of lead, 1.8 tons of Cd, 680 pounds of Hg, and 58 grams of dioxins/ furans). Non-monetized Benefits ...... Health effects from exposure to criteria pollut- ants (20,000 tons of CO2 6,300 tons of SO2, 5,400 tons of NO2, and secondary formation of ). Ecosystem effects. Visibility impairment. 1 All estimates are for the implementation year (2015) and are rounded to two significant figures. These results reflect the lowest cost disposal assumption. 2 The total monetized benefits reflect the human health benefits associated with reducing exposure to PM2.5 through reductions of PM2.5 pre- cursors such as directly emitted particles, SO2, and NOX. It is important to note that the monetized benefits include many but not all health ef- fects associated with PM2.5 exposure. Monetized benefits are shown as a range from Pope, et al. (2002) to Laden, et al. (2006). These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to allow differentiation of effect estimates by particle type. 3 The methodology used to estimate social costs for 1 year in the multimarket model using surplus changes results in the same social costs for both discount rates.

II. CISWI Reconsideration and Final Federation and the Louisiana units in light of the Court’s decision in Rule Environmental Action Network, related Cement Kiln Coalition v. EPA, A. Background Information to the definition of ‘‘commercial and 255 F.3d 855 (DC Cir. 2001)(Cement industrial solid waste incineration unit’’ Kiln). Neither the EPA’s granting of the 1. What is the history of the CISWI and ‘‘commercial or industrial waste’’ in petition for reconsideration, nor the standards? the 2000 CISWI rule. In granting the Court’s order granting a voluntary petition for reconsideration, the EPA remand, stayed, vacated or otherwise On December 1, 2000, the EPA influenced the effectiveness of the 2000 promulgated NSPS and EG for CISWI agreed to undertake further notice and CISWI rule. Therefore, the remand order units (60 FR 75338), hereinafter referred comment proceedings related to these to as the 2000 CISWI rule. On January definitions. On September 6, 2001, the had no effect on the effectiveness of the 30, 2001, the Sierra Club filed a petition Court entered an order granting the 2000 CISWI rule. for review in the Court challenging the EPA’s motion for a voluntary remand of On February 17, 2004, the EPA EPA’s final CISWI rule. On August 17, the CISWI rule, without vacatur. The published a proposed rule (CISWI 2001, the EPA granted a Request for EPA requested a voluntary remand of Definitions Rule) soliciting comments Reconsideration, pursuant to CAA the final CISWI rule to address concerns on the definitions of ‘‘solid waste,’’ section 307(d)(7)(B), submitted on related to the EPA’s procedures for ‘‘commercial and industrial waste,’’ and behalf of the National Wildlife establishing MACT floors for CISWI ‘‘commercial and industrial solid waste

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incineration unit.’’ On September 22, for review and consideration in the category. The EPA defines NHSMs that 2005, the EPA published in the Federal reconsideration proceedings. are solid waste under RCRA in the final Register the final rule reflecting our On December 23, 2011, the EPA ‘‘Identification of Non-Hazardous decisions with respect to the CISWI published a proposed rule soliciting Secondary Materials That Are Solid Definitions Rule. The rule was comment on the issues on which the Waste’’ Rulemaking. In an action challenged and, on June 8, 2007, the EPA was granting reconsideration. In parallel to the March 21, 2011, final Court vacated and remanded the CISWI March 2011, the EPA had publically CISWI rule, the EPA promulgated a final Definitions Rule. In vacating the rule, stated its intent to reconsider some of rule that identifies whether NHSMs are the Court found that CAA section 129 these issues. 76 FR 15266. The EPA or are not solid waste when used as unambiguously includes among the limited comment in the December 23, fuels or ingredients in combustion units. incineration units subject to its 2011, proposed rule to the specific That action, hereinafter referred to as standards, any facility that combusts issues on which it was granting the ‘‘2011 NHSM final rule,’’ is relevant any solid waste material, subject to four reconsideration which included the to the final CISWI rule because some statutory exceptions. While the Court following: ERUs and waste-burning kilns combust, vacated the CISWI Definitions Rule, the • Revising the subcategories and in their combustion units, secondary 2000 CISWI rule remained in effect. emission limits for ERUs and waste- materials that are solid waste under the On March 21, 2011, the EPA burning kilns to reflect updated 2011 NHSM final rule. Commercial and promulgated revised NSPS and EG for inventories and additional data. industrial units that combust solid • CISWI units (76 FR 15704)(2011 CISWI Establishing limitations on fuel waste are subject to standards issued switching provisions. pursuant to CAA section 129, rather rule). That action constituted a partial • response to the voluntary remand of the Definitions of cyclonic burn barrels, than to standards issued pursuant to 2000 CISWI rule and to the 2007 vacatur burn-off ovens, soil treatment units, CAA section 112 that would otherwise and remand of the CISWI Definitions laboratory analysis units and space be applicable to such units (e.g., units Rule. In addition, the EPA addressed the heaters from CISWI subcategories. that would be boilers, process heaters or • Providing an affirmative defense for 5-year technology review that is cement kilns if they were not malfunction events. combusting solid waste). required under CAA section 129(a)(5). • Revisions to the CO monitoring On the same day, the EPA issued a requirements. 3. What is the relationship between this notice that it intended to reconsider • Establishing a full-load stack test rule and other combustion rules? certain aspects of the 2011 CISWI rule requirement for CO coupled with These amendments address the that warrant further opportunity for continuous O2 (trim) monitoring. combustion of solid waste materials (as public comment (76 FR 15266). • Establishing a definition of defined by the Administrator under Following promulgation of the 2011 ‘‘homogeneous waste.’’ RCRA in the NHSM Definition rule) in CISWI rule, the EPA received petitions • Responding to comments on the combustion units at commercial and for reconsideration from the following 2011 CISWI rule regarding the use of industrial facilities. If an owner or organizations (‘‘Petitioners’’): Alaska Oil fuel variability in emission limit operator of a CISWI unit permanently and Gas Association/Alaska Miners calculations. ceases combusting solid waste, the • Association/ConocoPhillips (AOGA), Responding to comments on the affected unit would no longer be subject American Chemistry Council (ACC), 2011 CISWI rule regarding the review of to the CISWI rule because the unit American Foundry Society (AFS), D/F data and non-detect methodology would not be a solid waste incineration American Iron and Steel Institute (AISI) using three times the detection level. unit subject to standards under CAA • and American Coke and Coal Chemicals Responding to comments on the section 129. Standards issued pursuant Institute (ACCCI), Anthracite Region 2011 CISWI rule regarding providing an to section 112 of the CAA may apply to Independent Power Producers option for sources to use emissions CISWI units that cease combusting solid Association (ARIPPA), American averaging to demonstrate compliance. • waste. For example, CAA section 112 Petroleum Institute (API) and National Establishing a definition for standards applicable to boilers and Petrochemical and Refiners Association foundry sand thermal reclamation unit. • process heaters at major sources and (NPRA), Auto Industry Forum (AIF), Reinstating the definition of boilers at area sources would apply to Citizens Energy Group (CEG), Council of contained gaseous material. boilers and process heaters that cease • Revising the definition of chemical Industrial Boiler Owners (CIBO), combusting solid waste. Boilers and Earthjustice/Sierra Club, Edison Mission recovery unit. • Allowing for the use of feed stream process heaters that are located at Energy, Hovensa L.L.C. and Tesoro commercial and industrial facilities and Hawaii Corp., Industry Coalition analysis or other supplemental information to demonstrate compliance. that combust solid waste are subject to (AF&PA et al.), JELD–WEN Inc., • CISWI as ERUs. The EPA has also Portland Cement Association (PCA), Responding to comments on the 2011 CISWI rule regarding providing finalized the CAA section 112 standards Renovar Energy Corp., and Waste for the Portland Cement Manufacturing Management Inc. (WM). Copies of these percent reduction alternative standards. • Providing parametric monitoring Industry (75 FR 21136, September 9, petitions are provided in the docket (see provisions for additional control device 2010). Cement kilns combusting solid Docket ID Number EPA–HQ–OAR– types. waste are waste-burning kilns subject to 2003–0119). Petitioners, pursuant to • Revisions to the continuous CISWI, not the otherwise applicable CAA section 307(d)(7)(B), requested that monitoring provisions for large ERUs. CAA section 112 standards. the EPA reconsider numerous • Extending effective dates. 4. What is the response to the vacatur provisions in the 2011 CISWI rule. • Technical corrections and of effective dates? On May 18, 2011, the EPA issued a clarifications. notice to postpone the effective dates of On January 9, 2012, the Court vacated the March 21, 2011, final CISWI rule. 2. How is the definition of solid waste the May 18, 2011, Delay Notice, which This notice also requested that the addressed in the final CISWI rule? delayed the effective dates of the 2011 public submit additional data and The RCRA definition of solid waste is CISWI rule. On February 7, 2012, the information to the EPA by July 15, 2011, integral in defining the CISWI source EPA issued a no action assurance letter

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regarding certain notification deadlines B. Summary of This Final Rule to burn discarded waste materials for in the March 2011 CISWI rule. As stated above, the December 23, the purpose of disposal); small, remote The EPA has conducted outreach to 2011, proposed rule addressed specific incinerators; ERUs (i.e., units that each EPA Regional Office and it has not issues and provisions the EPA identified would be boilers or process heaters if found any new CISWI units that for reconsideration. This summary of they did not combust solid waste); and commenced construction since the the final rule reflects the agency’s final waste burning kilns (i.e., units that proposed CISWI rule was published on action in regards to those provisions would be cement kilns if they did not June 10, 2010. The CAA defines a ‘‘new identified for reconsideration and on combust solid waste). We have further source,’’ in part, as any source that other discrete matters identified in subcategorized ERUs into three commences construction after the response to comments or data received subcategories and waste burning kilns publication date of proposed CAA during the comment period. Information into two subcategories for CO emission section 111 and 129 standards2 CAA on other provisions and issues not limits only. Changes to the section 129(g)(2). Based on our outreach proposed for reconsideration is subcategories made since proposal are efforts, we do not believe there are any contained in the notice and record for discussed below in section II.C of this CISWI units that are in noncompliance the 2011 CISWI rule. 76 FR 15704 preamble: ‘‘Summary of Significant with the NSPS contained in the final (March 21, 2011). Changes Since Proposal.’’ 2011 CISWI rule. The final rule emission limits for new As explained above, today’s final rule 1. Subcategories of Affected Units and and existing sources in the solid-fuel amendatory text reflects changes to the Emission Standards burning ERU subcategory and the waste- 2011 CISWI rule, not the 2000 CISWI This final rule defines a CISWI unit, burning kilns subcategories were rule as in the reconsideration proposal in part, as any combustion unit at a revised based on changes to the notice. We have provided in the CISWI commercial or industrial facility that is inventories for those subcategories as docket a redline/strikeout file of the used to combust solid waste (as defined discussed below in section II.C of this 2000 CISWI rule to help implementing under RCRA)(40 CFR 60.2265 (NSPS) preamble: ‘‘Summary of Significant agencies and affected sources to identify and 60.2875 (EG)). We have established Changes Since Proposal.’’ Tables 2 and the sum total of the revisions made to standards in this final rule for the 3 of this preamble present the final the 2000 CISWI rule pursuant to the following four subcategories of CISWI emission limits for all subcategories for 2011 CISWI rule and this final action. units: Incinerators (i.e., units designed existing and new sources, respectively.

TABLE 2—COMPARISON OF EXISTING SOURCE MACT FLOOR LIMITS FOR 2000 CISWI RULE AND THE FINAL MACT FLOOR LIMITS

Incinerators CISWI Subcategories a (units) (2000 CISWI ERUs—Liquid/ Small, remote limit) Incinerators ERUs—Solids Gas Waste-burning kilns incinerators

HCl (ppmv) ...... 62 29 0.20 (biomass units)/13 b 14 b 3.0 ...... 300 (coal units). CO (ppmv) ...... 157 17 260 (biomass units)/95 35 110 (long kilns)/790 64 (coal units). (preheater/ precalciner). Pb (mg/dscm) ...... 0.04 0.015 0.014b (biomass units)/ 0.096 0.014 b ...... 2.1 0.14 b (coal units). Cd (mg/dscm) ...... 0.004 0.0026 0.0014 b (biomass units)/ 0.023 0.0014 b ...... 0.95 0.0095 (coal units). Hg (mg/dscm) ...... 0.47 0.0048 0.0022 (biomass units)/ b 0.0024 0.011 b ...... 0.0053 0.016 (coal units). PM, filterable (mg/ 70 34 11 (biomass units)/160 110 4.6 ...... 270 dscm). (coal units). Dioxin, furans, total (no limit) 4.6 0.52 b (biomass units)/ b 2.9 1.3 ...... 4,400 (ng/dscm). 5.1 b (coal units). Dioxin, furans, TEQ 0.41 0.13 0.12 (biomass units)/ b 0.32 0.075 b ...... 180 (ng/dscm). 0.075 b (coal units). NOX (ppmv) ...... 388 53 290 (biomass units)/ 340 76 630 ...... 190 (coal units). SO2 (ppmv) ...... 20 11 7.3 (biomass units)/650 720 600 ...... 150 (coal units).

a All emission limits are expressed as concentrations corrected to 7 percent O2. b See the memorandum in the CISWI docket ‘‘CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule’’ for details on this calculation.

2 The date for determining whether a source is a proposed standards. The final rule and error in 40 CFR 60.2015(a)(1) that did not specify ‘‘new’’ source is the publication date of the reconsideration proposal contained a typographical the June 4, 2010, proposal date.

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TABLE 3—COMPARISON OF NEW SOURCE MACT FLOOR LIMITS FOR 2000 CISWI RULE AND THE FINAL MACT FLOOR LIMITS

Final CISWI subcategories a Incinerators Pollutant (units) (2000 limit) ERUs—Liquid/ Small, remote Incinerators ERUs—Solids Gas Waste-burning kilns incinerators

HCl (ppmv) ...... 62 0.091 c0.20 (biomass units)/13 b 14 3.0 b ...... 200 (coal units). CO (ppmv) ...... 157 17 240 (biomass units)/95 35 90 (long kilns)/190 13 (coal units). (preheater/ precalciner). Pb (mg/dscm) ...... 0.04 b 0.015 0.014 b (biomass units)/ 0.096 0.014 b ...... 2.0 0.14 b (coal units). Cd (mg/dscm) ...... 0.004 0.0023 0.0014 c (biomass units)/ 0.023 0.0014 b ...... 0.67 0.0095 (coal units). Hg (mg/dscm) ...... 0.47 b 0.00084 0.0022 c (biomass units)/ d 0.00056 0.0037b ...... 0.0035 0.016(coal units). PM, filterable (mg/ 70 18 5.1 (biomass units)/160 110 2.2 ...... c 270 dscm). (coal units). Dioxin, furans, total (no limit) b 0.58 0.52 b (biomass units)/ (no limit) 0.51 b ...... 1,800 (ng/dscm). 5.1 b (coal units). Dioxin, furans, TEQ 0.41 0.13 0.076 b (biomass units)/ d 0.093 0.075 b ...... 31 (ng/dscm). 0.075 b (coal units). c b NOX (ppmv) ...... 388 23 290 (biomass units)/ 76 200 ...... 170 340 (coal units). c c SO2 (ppmv) ...... 20 11 7.3 (biomass units)/650 720 28 ...... 1.2 (coal units).

a All emission limits are measured at 7 percent O2. b See the memorandum ‘‘CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule’’ for details on this calculation. c The NSPS limit equals the EG limit. The EG limit was selected as the NSPS limit. d D/F TEQ and Hg limits for ERUs—liquid/gas were replaced with D/F TEQ limits for liquid fuel major source boilers. See ‘‘CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule’’ for details. e SO2 limits for Waste-burning kilns were replaced with SO2 limits for Portland Cement NSPS kilns. See ‘‘CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule’’ for details.

2. Fuel Switching Provisions 3. Definitions of Cyclonic Burn Barrels, the most diligent of efforts, emission The EPA is finalizing the proposed Burn-off Ovens, Soil Treatment Units, standards may be violated under fuel switching provisions that address Laboratory Analysis Units and Space circumstances beyond the control of the the situation where CISWI units cease Heaters source. This final reconsideration combusting solid waste, and where We are finalizing the proposed attempts to add clarification to the existing commercial and industrial definitions for cyclonic burn barrels, affirmative defense by revising some of combustion units begin combusting burn-off ovens, soil treatment units, and the regulatory provisions that specify solid waste (40 CFR 60.2330 for existing laboratory analysis units. We have the elements that are necessary to units and 40 CFR 60.2710 for new revised the proposed definition for establish this affirmative defense as units). Units that cease combusting solid space heaters to clarify applicability for proposed—with minor changes from waste remain subject to CISWI for at units that meet the requirements of 40 proposal described later in this section. least 6 months after solid waste is last CFR part 279. The final definitions Sources are required to comply with added to the combustion chamber. After describe the types of units and state that the CISWI standards at all times, and 6 months, sources must either comply these different types of units are not the EPA recognizes that even equipment with any applicable section 112 incinerators, small remote incinerators, that is properly designed and standard or, if they intend to combust ERUs, or waste burning kilns. The EPA maintained can sometimes fail and that solid waste in the future, opt to remain is including these definitions in the such failure may cause an exceedance of subject to CISWI and continue to final rule to differentiate these units the relevant standard. The EPA must comply with the applicable provisions. from the units for which the agency establish emission standards that ‘‘limit Combustion units located at commercial established standards in the 2011 CISWI the quantity, rate, or concentration of or industrial facilities that begin rule and this final action. emissions of air pollutants on a combusting solid waste are solid waste continuous basis.’’ 42 U.S.C. 7602(k) incineration units on the date they begin 4. Affirmative Defense for Malfunction (defining ‘‘emission limitation and combusting solid waste. Existing units Events emission standard’’). See generally that begin combusting solid waste The EPA is retaining in the final rule Sierra Club v. EPA, 551 F.3d 1019, 1021 within 6 months of the effective date of the proposed affirmative defense to civil (D.C. Cir. 2008.) The affirmative defense the CISWI EG must comply with the penalties for malfunction events. The for malfunction events meets this standards on the effective date of those EPA first included an affirmative requirement by ensuring that even standards. Existing units that begin defense in the 2011 final rule in an where there is a malfunction, the combusting solid waste after the attempt to balance a tension, inherent in emission standard is still enforceable effective date of the CISWI EG must many types of air regulation, to ensure through injunctive relief. See generally, comply with those standards at the time adequate compliance while Luminant Generation Co. v. EPA, 2012 the unit begins combusting solid waste. simultaneously recognizing that despite U.S. App. LEXIS 15722 (5th Cir. 2012)

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(upholding EPA’s approval of proposal (76 FR 80461) and making 5. Oxygen Correction Requirements and affirmative defense provisions in a CAA some minor additional revisions. The CO Monitoring Requirements State Implementation Plan). While terms ‘‘exceedance’’ and ‘‘excess ‘‘continuous’’ standards, on the one emissions’’ and ‘‘applicable emission We are finalizing provisions for hand, are required, there is also case law limitations were being exceeded’’ were calculating the 30-day CO rolling indicating that in many situations it is replaced with the term ‘‘violation’’ to average that allow uncorrected CEMS appropriate for the EPA to account for more accurately reflect that the reading to be used during the period of the practical realities of technology. For affirmative defense is only available operation from a cold start to bring the example, in Essex Chemical v. when there has been a violation of the combustion unit up to minimal normal Ruckelshaus, 486 F.2d 427, 433 (D.C. standard. The phrase ‘‘emission limit’’ operating temperature. We are also Cir. 1973), the D.C. Circuit was changed to ‘‘emission standards’’ to allowing uncorrected CEMS readings to acknowledged that in setting standards reflect that the affirmative defense could be used in 30-day average calculations under CAA section 111 ‘‘variant for the period of operation following the provisions’’ such as provisions allowing be applicable to certain work practice standards. The word ‘‘however’’ was last waste material (or material feed for for upsets during startup, shutdown and waste burning kilns) being fed to the equipment malfunction ‘‘appear removed to incorporate more plain language into the regulation. The term combustion unit during shutdown necessary to preserve the reasonableness procedures of the unit. For every type of of the standards as a whole and that the ‘‘notification’’ was changed to CISWI unit except waste-burning kilns, record does not support the ‘never to be ‘‘reporting’’ to reflect that the root cause the period of time allowed for exceeded’ standard currently in force.’’ analysis required under affirmative See also, Portland Cement Association defense would be submitted with other uncorrected CEMS data during a startup v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. periodic reporting. The term ‘‘and shall be 48 hours or less per startup 1973). Though intervening case law monitoring’’ was deleted because event and shall be 24 hours or less for such as Sierra Club v. EPA and the CAA monitoring malfunctions are defined each shutdown event. For waste- 1977 amendments call into question the differently than malfunctions of process burning kilns, the period of startup relevance of these cases today, they and control units and the affirmative begins when the kiln’s induced draft fan support the EPA’s view that a system defense is intended to apply to is turned on and fuel is being that incorporates some level of malfunctions to affected units that cause combusted and continues until flexibility is reasonable. a failure to meet an emission standard. continuous feed is introduced into the The affirmative defense provisions In multiple instances the word ‘‘were’’ kiln, at which time the kiln is in normal allow sources to avoid civil penalties for was changed to ‘‘was’’ to improve the operating mode. Shutdown begins when exceedances caused by a malfunction clarity of a provision. The term feed to the kiln is halted. Sources must event if the source demonstrates by a indicate in the CEMS data records preponderance of the evidence that the ‘‘facility’’ was changed to ‘‘affected source’’ to clarify that the affected which CEMS data are obtained during malfunction event meets the definition the startup and shutdown periods. Since of malfunction in 40 CFR 60.2. By source regulated by the rule must be operated in a manner consistent with the O2 correction calculation will affect incorporating an affirmative defense, the all corrected CEMS data, we have EPA has formalized its approach to good practices for minimizing emissions expanded these provisions in the final upset events beyond the control of the versus the entire facility. The phrase rule to allow for uncorrected CEMS data source. In a Clean Water Act setting, the ‘‘off shift and overtime labor were used, Ninth Circuit required this type of to the extent practicable to make these for any pollutant that sources elect to formalized approach when regulating repairs’’ was removed. The EPA no measure continuously with CEMS and ‘‘upsets beyond the control of the permit longer believes the language concerning calculate 30-day rolling averages to holder.’’ Marathon Oil Co. v. EPA, 564 the use of off-shift and overtime labor is demonstrate continuous compliance. F.2d 1253, 1272–73 (9th Cir. 1977). See necessary because the regulation Additionally, we have finalized also, Mont. Sulphur & Chem. Co. v. requires that to establish the affirmative removal of continuous CO monitoring United States EPA, 2012 U.S. App. defense the owner must prove by a requirements for new and existing ERU LEXIS 1056 (Jan 19, 2012) (rejecting preponderance of the evidence that units. We are instead requiring annual industry argument that reliance on the repairs were made as expeditiously as CO stack tests and continuous O2 affirmative defense was not adequate). possible when a violation occurs. monitoring and we are allowing CO But see, Weyerhaeuser Co. v. Costle, 590 Although we believe that use of off-shift monitoring with CEMS as a compliance F.2d 1011, 1057–58 (D.C. Cir. 1978) or overtime labor could be cited as alternative. We have also removed the (holding that an informal approach is evidence that the owner or operator continuous CO monitoring requirements adequate). The affirmative defense expedited repairs, we do not believe this for new CISWI units in the other provisions give the EPA the flexibility to level of detail is necessary in the subcategories, but sources may both ensure that its emission standards regulatory text. The written report demonstrate compliance using CO are ‘‘continuous’’ as required by 42 required when asserting an affirmative CEMS if they so choose. The authority U.S.C. 7602(k), and account for defense was changed from a separate to use uncorrected CEMS data during unplanned upsets and thus support the reasonableness of the standard as a ‘‘semiannual’’ report to a report that is startup and shutdowns discussed above whole. In addition, the affirmative submitted with the first periodic applies to all CISWI sources that elect defense provisions are designed to compliance, deviation report, or excess to demonstrate compliance with any ensure that steps are taken to correct the emission report due after the event. emission limits with a CEMS instead of malfunction, minimize emissions Lastly, the requirement to notify the performing annual stack tests. Changes during the malfunction, and prevent Administrator by telephone or facsimile to the CO and other optional CEMS future malfunctions. within two business days’’ was removed monitoring requirements made since We are promulgating revisions to the when we refined the affirmative defense proposal are discussed below in Section affirmative defense provisions in section reporting requirements based upon II.C of this preamble: ‘‘Summary of 60.2120 and 60.2685 as described at comments received. Significant Changes Since Proposal.’’

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6. Full-Load Stack Test Requirement for incinerators under subparts CCCC or that four deviations within a 12-month CO Coupled With Continuous O2 DDDD. operating period constitute a violation Monitoring and trigger immediate corrective action 9. Definition of Contained Gaseous and a Method 5 performance test within We are finalizing the full-load stack Material 30 days with an additional 15 days to test and continuous O monitoring 2 In today’s final rule, we have reestablish a site-specific operating provisions in today’s action that allow reintroduced and finalized the limit. existing sources to use their current O2 definition for ‘‘contained gaseous We have revised all operating analyzer and O2 trim systems to material’’ as found in the 2000 CISWI parameter averaging for ERU units to be demonstrate continuous compliance. rule as proposed. As discussed earlier, on a 30-day rolling average and allowed Based on comments received, we have the Court’s vacatur of the Delay Notice the sorbent injection parameter to be made some clarifying changes to these now requires this definition to be adjusted for varying ERUs based on provisions to be clear that existing O2 reintroduced since we are now load. Changes to the PM continuous trim systems and O2 monitors may be amending the 2011 CISWI rule instead monitoring provisions and operating used to demonstrate continuous of making amendments to the 2000 parameter provisions made since compliance, as well as clarifications on CISWI rule as when we published the proposal are discussed below in section establishing the operating limits for O2 December 2011 reconsideration II.C of this preamble: ‘‘Summary of content. Changes to the continuous O2 proposal. Significant Changes Since Proposal.’’ monitoring requirements made since proposal are discussed below in section 10. Parametric Monitoring Provisions 12. Revised Definition of Waste-Burning II.C of this preamble: ‘‘Summary of for Additional Control Device Types Kiln Significant Changes Since Proposal.’’ In the proposed rule, we requested This final rule includes a definition of comment on whether there were waste-burning kiln that has been revised 7. Non-Detect Methodology Using Three additional control device types that we Times the Detection Level since the March 2011 CISWI Rule. This should identify monitoring provisions definition helps clarify the EPA’s intent Since proposal, the EPA continued its for in the rule. We received comments regarding which types of Portland review of sampling volumes and on this topic and, in today’s final rule, cement kilns are considered subject to detection levels across various emission are including monitoring provisions for CISWI standards and which kilns are testing ICR efforts on various sorbent injection rate for dry scrubber subject to the Portland cement NESHAP. combustion sources to encompass control devices (40 CFR 60.2165 and 40 Since proposal, some additional additional pollutants measured using CR 60.2730). We have also clarified that language was added to this definition to EPA Reference Method 29 (See sources that elect to use optional CEMS further clarify our proposed definition. memorandum ‘‘Updated data and to monitor continuous compliance for Changes to the definition of waste procedure for handling below detection Hg, D/Fs or NO2 may do so as a burning kiln made since proposal are level data in analyzing various pollutant substitute for parametric monitoring of discussed below in section II.C of this emissions databases for MACT and RTR ACI and SNCR control devices, preamble: ‘‘Summary of Significant emissions limits’’ in the CISWI docket). respectively. Changes to the parametric Changes Since Proposal.’’ As a result of this analysis, we have monitoring provisions made since determined recommended values for proposal are discussed below in section 13. Revised Definition of Solid Waste three times the RDL that may be used as II.C of this preamble: ‘‘Summary of In the March 21, 2011, final CISWI a minimum emission limit value that Significant Changes Since Proposal.’’ rule, we removed the definition of solid waste that was present in the 2000 can be accurately measured by most 11. Particulate Matter Continuous 3 CISWI Rule in light of the definition of laboratories for Cd and Pb. Monitoring Provisions for Large ERUs solid waste in the final NHSM rule. Furthermore, based on comments on and Waste-Burning Kilns our application of this non-detect Because applicability of section 129 methodology approach to CO data In today’s rule, we are finalizing some hinges on sources combusting solid measured using instrument methods, we revisions to the monitoring waste, we believe it is appropriate to have made some modifications to the requirements for ERUs with an annual include a definition of that term in the span calculation approach used in the average heat input rate greater than 250 CISWI rule. For that reason, the final proposed rule. Changes to the emission MMBtu/hr and extending the same PM rule contains a definition of solid waste limits for Cd, Pb and the span continuous monitoring provisions to that refers to the final NHSM rule at 40 adjustment calculations for CO made waste-burning kilns. In the final 2011 CFR 241.2. CISWI rule, these units were required to since proposal are discussed below in 14. Compliance Dates section II.C of this preamble: ‘‘Summary monitor continuously for PM using a of Significant Changes Since Proposal.’’ PM CEMS; however, the PM CEMS In the final rule, we are revising the technology may not be sufficient to compliance dates for new and existing 8. Definitions for Foundry Sand certify accurate monitor performance in CISWI units to reflect the effective dates Thermal Reclamation Unit and the PM concentration range of the of this final rule. The compliance date Chemical Recovery Unit CISWI biomass ERU and waste-burning for existing sources depends primarily We are finalizing the proposed kiln limits. Therefore, we are requiring on state plan approval but may be no definitions of ‘‘foundry sand thermal continuous PM parameter monitoring later than the date 5 years after reclamation unit’’ and ‘‘chemical systems for these units similar to those publication of this final rule in the recovery unit’’ to clarify that these units being required for major industrial Federal Register. The EG are are not incinerators, waste-burning boilers and utility boilers. The EPA is implemented through a state kilns, ERUs or small, remote further requiring that a site-specific implementation plan or a federal plan. parametric operating limit be Under the final amendments to the EG, 3 The RDL methodology is consistent with the established during the performance test, and consistent with the CAA section RDL methodology outlined in the December 2011 that there be continuous monitoring of 129, revised state plans containing the reconsideration proposal. 76 FR 80463. that parametric limit using a PM CPMS, revised existing source emission limits

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and other requirements in the final predominantly non-coal solid materials. Thus, at the time of testing, these units amendments are due within 1 year after In the final 2011 CISWI rule, the solid were not solid waste incineration units. promulgation of the final fuel ERU subcategory was further We also received additional CO reconsideration amendments. States divided into separate subcategories for emissions data and re-analyzed the must submit revised state plans to the coal and biomass units, with separate performance of the best-performing ERU EPA by February 7, 2014. The EPA will limits for CO, NOX and SO2 to account in the solid-coal ERU subcategory. The revise the existing federal plan to for significant differences in unit design emission limits in this final rule reflect incorporate any changes and other for these two types of fuels and the the new inventory and emission data requirements that the EPA has impacts the different unit designs have received; however, we have used the promulgated. The federal plan applies on emissions of these pollutants. same methodology as in the 2011 CISWI to CISWI units in any state without an Because the public was not afforded rule and December 23, 2011, approved state plan. Additional an opportunity to comment on the reconsideration proposal for discussion of the state plan revision to the ERU subcategory, we establishing the emission limits. implementation schedule can be found identified this as a reconsideration issue at 76 FR 15711. in the March 21, 2011, notice of intent Waste-Burning Kilns For new sources, the compliance date to reconsider certain aspects of the 2011 Prior to the reconsideration proposal, is either August 7, 2013 or the date of CISWI Rule. Certain petitions for the EPA performed an analysis of the startup of the source, whichever is later. reconsideration supported the further materials being combusted in the entire New sources are defined as sources that subcategorization of the solid-fuel ERU inventory of Portland cement kilns in began construction on or after June 4, subcategory and suggested that all nine light of the final NHSM rule (See 2010, or commenced reconstruction or emission limits should be divided memorandum ‘‘Revised Floors without modification after August 7, 2013. between coal and biomass ERUs, instead Kilns that Would have been CISWI of only having different limits for CO, 15. Revised New Source Performance Kilns Had the Solid Waste Definition NO and SO . Standards X 2 Applied’’ in the CISWI docket). As a We granted reconsideration of our result of this analysis, we added 11 In the 2011 CISWI rule and the subcategorization approach for ERUs kilns to our inventory of waste-burning proposed reconsideration rule, EPA and proposed to establish different kilns. In addition to this, we further determined that the best controlled emission limits for PM, Cd, Pb, and reviewed the Portland cement emissions similar unit under section 129(a)(2) was D/F between coal and biomass units, in test records and identified some not a solid waste incineration unit for addition to establishing different limits additional test data for kilns that were certain new source standards. for CO, NOX and SO2. We also solicited added to the CISWI inventory following Specifically, the new source limits for comment on whether we should also the March 21, 2011, final rule certain pollutants from waste burning subcategorize solid-fuel ERUs for HCl publication. This newly-identified data kilns and ERUs were based on cement and Hg. was extracted and compiled into the kilns and boilers, respectively. See Based on comments and information CISWI database, and then the MACT memorandum ‘‘CISWI Emission Limit received during the comment period, we floor emission limits were re-calculated Calculations for Existing and New have determined that it is appropriate to in the December 23, 2011, proposed rule Sources’’ in the CISWI docket. Both the subcategorize solid fuel ERUs for all to reflect the updated inventory and industrial boiler NESHAP and the nine CAA section 129 pollutants. We additional data. Following proposal, we Portland cement NESHAP are being recognize that there are significant were also notified of one additional revised, and additional data has been design and operational differences waste-burning kiln and that one of the incorporated into the new source MACT between biomass and coal ERU units kilns in the inventory was not burning analyses for those rules. As a result of that impact the generation of all nine waste materials. We made these regulated pollutants, and, for this the new data and analyses, several of adjustments to our inventory, bringing reason, we are establishing separate the new source NESHAP limits are the total waste-burning kiln inventory to emission standards for all nine being revised and EPA is changing the 23 kilns. We recalculated the standards pollutants from coal and biomass ERUs following new source limits in CISWI in this final rule to include all 23 waste based on the revised limits in the in this final rule. In addition, since issuing the burning kilns. NESHAPs: NOX for waste-burning kilns, As with the new ERU standards, we proposed reconsideration CISWI rule, and Hg and PCDD/PCDF for ERU-liquid/ have used the same methodology to we have received comments and data gas units. establish today’s emission limits as we which allowed us to update our used for the final 2011 CISWI rule. We C. Summary of Significant Changes inventory of ERUs. The inventory have also retained the emissions Since Proposal adjustments we made more accurately concentration basis for the standards. reflect the inventory of solid waste 1. Revision of the Subcategories However, Table 4 of this preamble combustion units. Based on comments presents the emission limits for PM, Energy Recovery Units from the operator of the units, we NO , SO and Hg on a production basis In the final 2011 CISWI Rule, we removed three units from the final rule X 2 for comparison. established separate subcategories based inventory of biomass ERUs that were on the types of fuels and ERUs determined to be non-waste burning TABLE 4—WASTE-BURNING KILN EMIS- were designed to burn. Energy Recovery units and we re-analyzed the emission Units (e.g., units that would be boilers limits for the solid-biomass ERU SION LIMITS EXPRESSED IN PRODUC- and process heaters but for that fact that subcategory. The commenter explained TION BASIS they combust solid waste) designed to that, although permitted to burn Pollutant (units) Existing New burn gaseous fuels and liquids that are materials that would be considered kilns a kilns a solid waste were included in one solid waste, these units had ceased primary subcategory and the other burning the materials in question Hg (lb/MM ton clinker) .. 58 21 primary subcategory was for units several years ago and would not PM (lb/ton clinker) ...... 0.026 0.013 designed to burn solid fuels or recommence burning these in the future. NOX (lb/ton clinker) ...... 6.7 1.5

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TABLE 4—WASTE-BURNING KILN EMIS- corrected CO concentrations inflated applicable to CISWI units. In the case of SION LIMITS EXPRESSED IN PRODUC- due to the 7 percent O2 correction. ERUs, incinerators and small remote TION BASIS—Continued Petitioners and commenters presented incinerators, we determined that the data that show these corrected data startup period should include the times New points would have the potential to drive prior to the source reaching the minimal Pollutant (units) Existing kilns a kilns a the 30-day rolling average values operating temperature, but in no case beyond the emission limit for the longer than 48 hours. For shutdown, we SO2 (lb/ton clinker) ...... 8.9 0.4 affected units, but this would not be an determined as at proposal that a Approximate. accurate reflection of the CO emissions. shutdown begins after the last waste has Petitioners suggested various been fed to the combustor prior to Small Remote Incinerators approaches to remedy this situation, shutdown but we have revised the final After the reconsideration proposal, we with one being to not require the 7 rule to indicate that the shutdown received additional information from percent O2 correction requirement period may not exceed 24 hours. We stakeholders of additional units in during unit startup and shutdown for have, therefore, specified in the final operation and planned for operation sources that demonstrate compliance rule an UL of 48 hours for startup within the next year or two that would with the CO limit using CEMS. In other periods to use uncorrected CEMS data qualify as small remote incinerators. words, the CEMS data as reported at and 24 hours for shutdown periods to The resulting changes included moving stack gas concentration without O2 use uncorrected CEMS data for ERUs, one unit from the small remote correction would be included in the incinerators and small remote incinerator subcategory to the rolling average calculations for periods incinerators. For waste-burning kilns, incinerator subcategory due to the unit’s when the combustion unit is either these periods are triggered off of proximity to a in Alaska. An being started up or shutdown instead of material feed to the kiln rather than additional 15 small remote incinerators applying the O2 correction to that data solely waste feed. This addresses the were added to our inventory of existing before it is included in the calculation fact that kilns, unlike other CISWI units, units, bringing the total of this of the 30 day rolling average. During all are producing product rather than solely subcategory to 28 units. This additional other operating periods, the CEMS data disposing of waste or recovering energy. information resulted in changes to the would be corrected to a 7 percent O2 Therefore, for waste-burning kilns, emissions limits. concentration prior to calculating the startup begins when the kiln’s induced rolling average. Stated otherwise, the fan is turned on and continues until 2. Revisions to the Monitoring data obtained during startup and continuous feed is introduced into the Requirements shutdown, which will not include the 7 kiln at which time the kiln is in normal After the March 21, 2001 final rule, percent O2 correction, will be added to operating mode. Shutdown begins when petitioners identified computational the O2 corrected data collected during feed to the kiln is halted. issues for correcting CO concentration all other periods to calculate the 30-day As at proposal, sources must indicate measurements to 7 percent O2 for average that is used to determine in the CEMS data records which CEMS periods when the O2 content of the flue continuous compliance with the data are uncorrected because they were gas approaches the ambient air O2 applicable CO limit for sources that obtained during the startup and content during startup and shutdown demonstrate compliance using CEMS. shutdown period. periods for sources that demonstrate Prior to issuing the reconsideration The O2 correction issue described compliance with the CO limit using proposal, we received data for one unit above for CO CEMS data collected CEMS. The equation for the 7 percent in one subcategory (coal ERUs) that during startup and shutdown applies O2 correction is X ppm CO* (20.9¥7)/ indicated startups usually occur over a equally to other pollutants measured (20.9¥%O2 of flue gas stream). As seen 4-hour period and shutdowns occur with a CEMS that is corrected to 7 by this equation, as the flue gas stream over a 1 hour period. Therefore, we percent O2. The final CISWI rule allows O2 content gets closer to 20.9, the value proposed provisions for calculating the sources to demonstrate compliance with of X is multiplied by an ever increasing 30-day CO rolling average that would any of the standards using CEMS, and, factor. For example, when the stack gas allow the source to use CEMS data that for this reason, we have expanded O2 content is 4 percent, the factor is does not include the O2 correction to be authorization to use uncorrected CEMS 0.82. If the stack gas O2 content is 20 used during the first 4 hours of data during periods of startup and percent, the factor increases to 15.4. operation from a cold start and the 1 shutdown to all pollutants for which a Therefore, a flue gas CO concentration hour of operation following the last source demonstrates compliance with reading of 100 ppm would be corrected waste material being fed to the CEMS. In the final rule, the 7 percent O2 to 82 ppm for a stack gas at 4 percent combustion unit during shutdown correction is not required during startup O2 content, but would become a 1,540 procedures of the unit. Since proposal, and shutdowns for any CISWI sources ppm corrected concentration for a stack however, we received comments on this that elect to demonstrate continuous gas at 20 percent O2 content. In the provision, primarily pointing out that compliance with any of the emission extreme, at a 20.8 percent stack gas longer periods are required to protect limits with a CEMS instead of stack concentration (i.e., approximating combustion equipment from rapid tests. ambient air O2 content), the same 100 temperature swings, which could cause ppm measurement would be corrected damage to the fireboxes or kiln surfaces. 3. Oxygen Monitoring Requirements to 13,900 ppm. Commenters also contended that the At proposal, we included provisions Petitioners noted that O2 contents limited information concerning the and definitions in an attempt to ensure relatively close to ambient air often are startup and shutdown periods during that sources would be able to use maintained during combustion unit which the O2 correction would not be existing O2 monitoring systems to meet startup and shutdown in order to safely required did not reflect the needs for all the continuous O2 monitoring operate the combustion unit. Therefore, combustor types or control device requirements. However, commenters CO readings during these periods would configurations. We have therefore identified potential issues with our be multiplied by an uncharacteristically revised the shutdown and startup proposed provisions and definitions. To high correction factor, and the resulting period of operation to be more generally address these commenters’ concerns, we

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have revised the provisions in 40 CFR were equally problematic. Therefore, the means that a homogeneous waste is of 60.2165 and 40 CFR 60.2730 to clarify final rule does not include a definition known origin and that it can be the methodology for establishing and of ‘‘homogeneous waste’’. We are also identified as a specific material or monitoring the O2 level. Furthermore, removing the requirement that materials—using the example in the the definition of ‘‘oxygen analyzer qualifying small power producers and Act, certain used oils or scrap tires. By system’’ has been revised to clarify the qualifying cogeneration facilities that contrast, municipal solid waste can be appropriate locations and nomenclature combust solid waste obtain a identified as municipal solid waste as a of possible existing monitoring systems determination from EPA that such waste general term, but it is not composed of so that their use to meet these is homogenous. Because the final rule only one or two specific type of waste; requirements is fully enabled. does not include a homogenous waste e.g. municipal solid waste cannot be identified as one specific material or 4. Removal of the Definition of definition or a process to obtain a group of materials. Regarding variability Homogeneous Waste determination from EPA, we believe that it is appropriate to inform the EPA of the composition of homogeneous The EPA included in the final 2011 when a unit qualifies as a small power waste throughout, homogeneous waste CISWI Rule a definition of homogenous generator or cogeneration facility as may have variations in composition, but waste and a process for evaluating defined under section 129 because the it should generally be within the range claims that a particular waste stream is site specific fact patterns for different of operations which produce the waste homogenous. The definition was added types of waste may vary considerably. (e.g., size, contaminant levels, state of to the 2011 CISWI rule in response to Therefore, the final rule requires matter.) We also believe that off-spec comment. Because the determination of qualifying small power producers and materials may be homogeneous, even if homogeneity of a waste stream is qualifying cogeneration facilities that they are not homogeneous to the on- relevant to applicability of CAA section combust solid waste notify the EPA that spec material, and that, if combusted 129 to qualifying small power producers such waste is homogeneous. (40 CFR together, both the on-spec and off-spec and qualifying cogeneration facilities, 60.2020 and 40 CFR 60.2555). materials may require separate we determined it was reasonable to Section 129 states, in part, that the homogenous waste determinations. We include a definition of ‘‘homogenous term ‘‘solid waste incineration unit’’ also believe that homogeneous waste waste’’ and a process by which sources does not include: should have predictable known could obtain a determination that a contaminant levels, even if those waste stream is homogenous from the * * * qualifying small power production contaminant levels vary within a range. facilities, as defined in section 796 (17)(C) of EPA. We may question the homogeneity of a In the 2011 CISWI Rule, the EPA title 16, or qualifying cogeneration facilities, as defined in section 796 (18)(B) of title 16, specific material if it is adulterated such stated that a determination concerning which burn homogeneous waste (such as that it takes on the characteristics of a whether a waste is homogeneous is units which burn tires or used oil, but not different type of waste (e.g., used oil made on a case-by-case basis. The EPA including refuse-derived fuel) for the which is so contaminated with PCB’s added provisions to the CISWI final rule production of electric energy or in the case from a leaking heat exchanger, such that that require source owners or operators of qualifying cogeneration facilities which the used oil takes on the characteristics seeking the exemption to submit a burn homogeneous waste for the production of a waste PCB stream as opposed to a request for a homogeneous waste of electric energy and steam or forms of used oil stream) or where the BTU value determination to the EPA, and that they useful energy (such as heat) which are used of a waste is so altered that other fuels for industrial, commercial, heating or cooling support their request with information must be introduced to ensure describing the materials to be purposes*** CAA Section 129(g)(1)(B) (emphasis added) combustion and preserve the purpose of combusted and why they believe the combustion under the exemption, i.e. to waste is homogeneous. The 2011 CISWI We believe that the parenthetical produce energy. rule also stated that the determination of contained in the exemption that what constitutes a homogeneous waste prohibits refuse derived fuel, which is 5. Non-Detect Methodology Using Three is not delegable to the state or local made from municipal solid waste, from Times the Detection Level agencies. In the December 23, 2011, qualifying as homogenous waste and Prior to reconsideration proposal, the reconsideration proposal, we proposed allows tires and used oil to qualify as EPA conducted a review of sampling for comment the definition of homogenous wastes provides guidance volumes and detection levels across ‘‘homogeneous waste’’ and the on what constitutes a homogenous various emission testing ICR efforts on provisions for making homogeneous waste. We do not accept industry’s various combustion sources (See waste determinations that were assertion that any waste from a common memorandum ‘‘Updated data and included in the 2011 CISWI rule. source is homogeneous, or that in all procedure for handling below detection Commenters generally did not agree cases combining two homogeneous level data in analyzing various pollutant with the proposed definition and wastes results in a homogeneous waste, emissions databases for MACT and RTR provisions for making a homogeneous as doing so could result in almost any emissions limits’’ in the CISWI docket). waste determination, arguing that the waste stream being homogenous. We do As a result of this analysis, we definition and provisions introduced not believe that is consistent with the determined recommended values for ambiguities and stipulations that would statute. Instead, we believe Congress three times the RDL (3xRDL) that may prevent classification of many materials intended this exemption to apply only be used as a minimum emission limit (including fossil fuels) as being when the waste stream has a consistent value that can be accurately measured ‘‘homogeneous.’’ We reevaluated the makeup that allows the source and the by most laboratories. These definition and provisions in light of the enforcement authority to predict the recommended values were then comments and determined that the range of emissions from the combustion compared with calculated emission definition and provisions could be of the waste on an ongoing basis. limits and, if the calculated limit was interpreted in a manner that would be In keeping with this interpretation, less than the recommended 3xRDL, the unduly restrictive; however, we also we maintain that the homogeneous 3xRDL value was selected as the limit. determined that commenters proposed wastes are generally material specific Since the December 23, 2011, alternative definitions and provisions (e.g., tires or used oil). We believe this reconsideration proposal was published,

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we have continued our review and control devices, such as for proposal, recent EPA experience with determined 3xRDL values for additional units that employ material balance the utility boiler source category has led metals measured using EPA Reference operating limits in conjunction with the EPA to allow PM CEMS as an Method 29. These include periodic stack testing to demonstrate alternative, rather than a requirement. recommended values for Cd and Pb and continuous compliance. Industry commenters have maintained we have applied this methodology to We also determined that dry sorbent that there were several problems with those emission limits in addition to the injection (or dry scrubbers) may be one implementing the monitoring D/F and Hg limits that were reevaluated type of additional control device that requirements to demonstrate in the reconsideration proposal. As CISWI units may widely use to control compliance using a PM CEMS and with discussed in the reconsideration acid gases. Commenters agreed with our the requirements to conduct a periodic proposal, the premise for this approach statement and encouraged the EPA to audit of the PM CEMS in accordance is the same as described in the final identify operating parameters for dry with PS 11 of appendix B and Procedure 2011 CISWI rule but using a broader scrubbing systems in the final rule. We 2 of appendix F to part 60. As we data set to establish the 3xRDL value. have done so, by both defining ‘‘dry discuss in response to these comments We have not changed the methodology scrubber’’ in the rule, and specifying later in this preamble (See II.E), the PM of the emission limit calculation or that the sorbent injection rate must be CEMS technology may not be sufficient tabulation of the three times the monitored and maintained at or above to certify accurate monitor performance detection limit value that was used in the operating rate established during the in the PM concentration range of the the final 2011 CISWI rule. HCl performance test (40 CFR 60.2165 CISWI biomass ERU limits. Since reconsideration proposal, some and 40 CFR 60.2730). Furthermore, we Furthermore, in related ongoing work commenters have noted that the EPA have determined that the sorbent on the Portland cement source category, Method 5 minimum catch values were injection rate for ERUs can be adjusted we realize that similar concerns below levels established in similar to reflect operating loads that are less regarding PM CEMS are applicable. studies on this reference method. In than those during the performance Therefore, we are also removing PM light of these comments, we have testing. Commenters have made CEMS (PS–11) requirements for waste- reconsidered the 1 mg minimum catch arguments that requiring a high sorbent burning kilns, and instead, requiring PM value used in the reconsideration injection rate during reduced boiler CEMS equipment for these units that are proposal and are now using a 1 mg loads can lead to fouling and plugging used for continuous parametric minimum catch in establishing the final issues, especially for acid gas sorbent monitoring rather than for direct rule emission limits. Our review and injection. To address this particular measure of compliance with the determination of the 1 mg minimum concern, and to provide consistency numerical PM emissions limit, similar catch are discussed in ‘‘Minimum with other industrial boiler rules, we are to those being required for major Detection Limit for EPA Method 5’’ in also providing this parametric industrial boilers and utility boilers. the CISWI docket. monitoring provision for sorbent However, PM CEMS (PS–11), are still In a similar fashion, the CO span injection air pollution control devices. allowed as an option for coal ERUs, adjustment methodology has been Also regarding monitoring, we incinerators and small remote further refined in consideration of determined after proposal that we had incinerators, since the emission limits comments on the approach used to not clarified in the rule that sources for these subcategories do not pose the adjust CO instrumental test methods opting to use CEMS to measure NOX, Hg same technical concerns as for biomass readings in reconsideration proposal. or D/F were not required to monitor ACI ERUs and waste-burning kilns. To be The methodology for adjusting CO rates (for Hg and D/F CEMS-equipped consistent with these other rules, we emission test run data to reflect the units) or SNCR parameter monitoring have incorporated 30-day rolling limitations from the instrument span (for NOX CEMS-equipped units). Our averages to be measured with PM used at testing is described in the intent had been to not require CPMS. The EPA is further requiring that ‘‘CISWI Emission Limit Calculations for applicable control device parameter a site-specific parametric operating limit Existing and New Sources for the monitoring if a CEMS was in use for the be established during the performance Reconsideration Final Rule’’ pollutant being controlled by the device. test, that there be continuous memorandum in the CISWI docket. Control device parameter monitoring is monitoring of that parametric limit an acceptable and established method 6. Parametric Monitoring for Additional using a PM CPMS, that an exceedance for determining continuous compliance Control Device Types of that site-specific operating limit be and it is appropriate to require such reported as a deviation and trigger In the December 23, 2011, monitoring when coupled with period immediate corrective action and a reconsideration proposal, we stated that stack testing. However, direct, Method 5 performance test within 45 we believed the control devices with continuous emission measurements days. monitoring provisions expressly with a CEMS are sufficient for 8. Compliance Dates identified in the rules should determining compliance for CISWI units encompass most types of control without requiring parametric At reconsideration proposal, we devices that we anticipate the various monitoring. In cases where CEMS data proposed to extend the compliance types of CISWI units will use to meet are available to directly measure dates for existing units in the the emission limits. However, regulated pollutants, operating incinerator, ERU and waste-burning kiln recognizing that a source might want to parameter data would be duplicative. subcategories. We are finalizing the employ another type of control that is revision of the effective dates for those not addressed, we provided provisions 7. Particulate Matter Continuous three subcategories and, based on for sources to petition for specific Monitoring Provisions for Large ERUs comments received, we are also operating limits for alternative control and Waste-Burning Kilns extending the compliance date for units devices to be established during a In today’s rule, we are finalizing in the small remote incinerator performance test. These provisions also monitoring requirements for ERUs with subcategory. The EPA proposed to allow specific operating limits to be an annual average heat input rate greater amend the standards for CO for all established for CISWI units without any than 250 MMBtu/hr. As we stated in the subcategories of CISWI; to further

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subcategorize certain subcategories; to on hold until the reconsideration was EPA is revising the definition in the change several other pollutant standards complete. As a result of these final rule to accurately reflect the May for incinerator, ERU and waste burning considerations, we have finalized 17 preamble and April 25 memorandum kilns subcategories; to change the extending compliance for all discussion of when combustion occurs compliance regime from CEMS-based to subcategories of CISWI. Comments on in a cement kiln. In addition, we are stack-test/parametric-monitoring based extending the compliance date and our adding the fact that combustion in a for certain pollutants and unit types; responses to these comments are found cement kiln does also take place in the and to change the compliance in the ‘‘Summary of Comments and combustion zone of a precalciner or calculation provisions for sources that Responses to the CISWI riser duct burner. are required or that elect to use CEMS Reconsideration’’ document in the One further clarification is to demonstrate continuous compliance. CISWI docket. appropriate. The May 17, 2011, These proposed changes may occasion The compliance date for existing preamble contains one reference to the need for additional time for sources CISWI sources subject to standards in legitimacy criteria for determining when to study the possibility of different this final rule is 5 years after the date a secondary material is being recycled. control and monitoring strategies than of publication of this final rule or 3 76 FR at 28322/1–2. The threshold issue would have been considered if we had years after the state plan is approved, for determining if a unit is subject to not amended the 2011 CISWI rule. New whichever happens earlier. This date is section 129 is whether it ‘‘combusts’’ compliance strategies may require time being finalized in order to provide solid waste material (see section 129 to implement. New engineering studies facilities sufficient time to install (g)(1)). For cement kilns, this controls or to make other compliance- may be needed, potential suppliers determination does not necessarily turn related decisions. However, the CAA identified, a new bidding/procurement on legitimacy of recycling, but rather on section 129(f)(2) does require that the process undertaken and the appropriate the nature of the cement kiln process. promulgated standards be effective ‘‘as construction and operating permits Consequently, if combustion of solid expeditiously as practicable after obtained. Significant plant redesign, in waste is not occurring, a unit is not a approval of a State plan,’’ so that states the form of new ductwork and new fan CISWI, irrespective of whether or not have the flexibility to determine that the design and changes in the main control legitimate recycling is occurring. standards for existing units within their equipment may be needed. See US EPA, purview may have a compliance date 10. Exemption for Other Solid Waste Engineering and Economic Factors which is less than the allowable 3 years Incineration (OSWI) Units Affecting the Installation of Control following approval of the state plan. For Following publication of the Technologies for Multipollutant new sources, the EPA is finalizing the December 23, 2011, reconsideration Strategies, October 2002. Depending on proposed change of the compliance date proposal, we realized that the CISWI the type of control, this normally to 6 months after the date of publication rule did not contain any language to requires 15–27 months. Multiple control of the final reconsideration rule or at clarify overlap with another CAA systems may take longer. Id. Installation startup, whichever is later. section 129 regulation applicable to of controls normally occurs at times of OSWI units. The CISWI rule already 9. Definition of Waste-Burning Kiln unit outages, which will likely end up contains exemptions for MWCs, being at differing times of the year for In the December 23, 2011, HMIWIs and SSIs, but omitted similar each of the CISWI subcategories. For reconsideration proposal, we proposed language for OSWI units. Therefore, in example, for waste-burning kilns, this revisions to the definition of ‘‘waste- this final rule, we are providing would occur during winter months (to burning kiln’’ to indicate that the term language in 40 CFR 60.2020 and 60.2555 coincide with kiln outages during low ‘‘does not include a kiln that is feeding that clarifies that incineration units that production seasons). However, for small non-hazardous secondary ingredients are subject to 40 CFR part 60 subparts remote incinerators, facility retrofits exclusively into the cold end of the EEEE or FFFF are exempt from the would need to occur while road access kiln.’’ In proposing this language, the CISWI rule. to the site is available and climatic EPA intended to codify principles set conditions allow for construction. Also, out in a previous action granting and D. Technical Corrections and small remote incinerators have the denying reconsideration of the NESHAP Clarifications additional component of having to for Portland cement kilns. See 76 FR We are also including some technical increase the footprint of the site to 28318, 28322 (May 17, 2011); see also corrections and clarifications in the accommodate additional space for Memorandum ‘‘Revised Floors Without final rule, as outlined below: control devices and waste segregation Kilns That Would Have Been CISWI • Operating parameter limits during facilities. This additional permitting Kilns Had the Solid Waste Definition performance testing—While we believe requirement and construction effort is Applied’’ (EPA, April 25, 2011) (which it is intrinsic that established operating not something other CISWI memorandum is summarized in the May parameter limits do not apply during subcategories have to face but adds an 17 Federal Register notice). The May subsequent performance testing since additional consideration to developing a 17, 2011, notice and April 25, 2011, they are being confirmed or compliance strategy. In general, though, memorandum state in essence that reestablished during the subsequent the differing construction constraints for combustion does not occur in any testing, we provided language in the the various subcategories of CISWI region of a cement kiln except the hot proposed rule in the NSPS to clarify that likely mean that there will be a wide end and that cement kiln dust added to they are waived during performance variety to the rate of progress towards the hot end of a cement kiln also is not testing (40 CFR 60.2145(c)). However, compliance for the differing CISWI combusted since it is inorganic and we inadvertently omitted this clarifying sources. Further, commenters have essentially inert. language in the emission guidelines so argued that, due to the delay of the final The language used at proposal we have added clarifying language in 2011 CISWI rule, uncertainty on captured some but not all of these the final emission guidelines at 40 CFR selecting a compliance strategy was principles, since it referred only to the 60.2710(c). created, essentially putting internal ‘‘cold end’’ of a cement kiln, as pointed • Bypass stacks on waste-burning compliance implementation activities out by a number of commenters. The kilns—While not included in the final

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rule text, we are clarifying here that the calculating the new source limits. of biomass fuels have on fan capacity. definition of ‘‘bypass stack’’ in today’s Notably, this is the case for NOX for The commenter stated that these final rule does not have the same waste-burning kilns, and for Hg and findings further support that coal and meaning as an ‘‘alkali bypass’’ used by PCDD/PCDF for ERU-liquid/gas units. biomass are not interchangeable within some waste-burning kilns that These revisions reflect updates made to ERUs and therefore supports manufacture Portland cement. emission limits of the selected similar subcategorizing emission limits between • Clarifying that, consistent with sources. the two types of unit. The commenter CAA section 129(f)(1), June 4, 2010, is also contended that the EPA E. Major Public Comments and the appropriate new source applicability acknowledged significant design Responses date in 40 CFR 60.2015(a)(1). differences and their impacts on Hg • Revising the title of Table 2 to We have included some of the major emissions during development of the subpart DDDD to clarify that these comment topics and our responses Utility MACT Final Rule. The emission limits apply to incinerators below in the preamble. All other commenter urges the EPA to take a which are currently subject to CISWI comments and responses are provided similar approach in CISWI. One emission limits promulgated in the 2000 in the ‘‘Reconsideration Response to commenter agreed with differentiation CISWI rule. Public Comments Document’’ in the between coal-fired and biomass ERUs • Clarifying that petitions for specific CISWI docket. but supported keeping solid-fuel ERUs operating limits for control devices not Solid-Fuel ERU Subcategorization together for purposed of HCl and Hg listed in this subpart must be submitted emission limits. Another commenter to the Administrator at least 60 days Comment: Several commenters argued that all of the EPA’s before the performance test is scheduled support the proposed separate coal and subcategories are unlawful and to begin (40 CFR 60.2115 and 40 CFR biomass standards for D/Fs, CO, NOX, arbitrary, noting that their reasons for 60.2680). SO2, PM, Cd and Pb. However, these this belief were given in their comments • Providing definitions of ‘‘30-day commenters further urge the EPA to on the 2010 proposal. rolling average’’ and ‘‘responsible establish separate standards for HCl and Response: Based on our proposal and official’’ to clarify what is meant by Hg for coal and biomass. Commenters follow-up comments summarized these terms. state that the EPA’s recognition that below, the EPA is finalizing separate • Adding text to the provisions for design and operational differences limits for all nine pollutants for biomass PM monitoring provisions for ERUs to between combustors designed to and coal ERUs. We agree with clarify that the 250 MMBtu/hr threshold combust coal and those designed to comments concerning differences in is based upon the average annual heat combust biomass is evidence to support moisture content between biomass and input rate, consistent with how this subcategorizing emission limits for all coal-fired units. We reviewed data in threshold is applied in the industrial pollutants. One commenter discussed the CISWI database and see that the boiler NESHAP. differences in biomass and coal fuel stack gas moisture content of coal-fired • Revising the affirmative defense rank, and the significant boiler design ERUs is around 11.6 percent and is text to clarify that these provisions differences in furnace height and about 19.2 percent for the biomass apply to violations of standards and to volume that exist between units ERUs. We have considered the technical further clarify the reporting designed to combust different fuel ranks arguments provided by commenters on requirements and criteria for sources of coal-fired boiler furnaces. As an CISWI ERUs, other technical differences seeking to assert an affirmative defense example, one commenter noted that a we have previously considered in our (40 CFR 60.2120 and 40 CFR 60.2685). low-rank coal (high slagging lignite) decision to subcategorize ERUs and how • Revising the recordkeeping furnace can be 1.65 times the plan area, these design differences impact provisions in 40 CFR 60.2175(v) and 40 and 1.45 times the furnace height, of a pollutant emission characteristics of the CFR 60.2740(u) to reflect the categorical similar capacity furnace combusting a ERU. As a result, we have determined non-waste determination provisions of high rank coal (medium volatile that subcategorizing all nine pollutant 40 CFR 241.4. bituminous). The commenter stated that emission limits between coal and • Revising the electronic reporting this large difference exists even among biomass solid-fuel ERUs is appropriate provisions in 40 CFR 60.2235 and 40 varying grades of coal, with biomass for the final CISWI rule. CFR 60.2795 to clarify the timing and units being fuels of even lower rank One commenter supported the mechanism for submitting these reports than lignite. Therefore, according to the differentiation between coal and and to be consistent with the electronic commenter, furnace area and height biomass, but in keeping HCl and Hg reporting language in more recent (and hence, volume) are significantly limits together. However, for the reasons rulemakings. different between ERUs designed to given above, we have determined that • Revising the definition of ‘‘process combust coal and those designed for all nine pollutants should be change’’ to clarify the intended types of biomass combustion. The commenter subcategorized. changes that would require re-testing. highlighted an analysis of their existing • Making corrections to the D/F boilers to see the feasibility of Contained Gaseous Material calculation methodologies for toxic substituting biomass for coal. The Comment: Commenters support the equivalency basis and adding commenter’s results indicated that, due EPA retaining the 2000 CISWI rule’s calculation methodology provisions for to fundamental design attributes of their definition of ‘‘contained gaseous D/F TMB. coal-fired units, they could only co-fire material.’’ Some commenters believe • Revising the definition of ‘‘space up to 20 percent biomass in the units. that the EPA should expressly include heater’’ to clarify applicability for units The commenter explained that this the definition of ‘‘contained gaseous that meet the requirements of 40 CFR limitation was due to design issues material’’ in the amendatory text to 279. pertaining to the unit being designed for confirm that the definition is back in the • Revising the emission limits for coal, such as superheater tube spacing, CISWI rule. those pollutants for which data number and location of blowers, Response: We believe that the available from a similar source was fouling characteristics of biomass ash commenters misunderstood what the determined to be better suited for and the impact the high moisture levels EPA proposed. Specifically, the basis of

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the reconsideration proposal rulemaking did not change any previous Oxygen Correction During Startup and amendatory text was the 2000 CISWI EPA position as it relates to whether Shutdown rule—not the 2011 CISWI rule—because ‘‘contained gaseous material’’ is a solid Comment: Commenters generally 7 the 2011 CISWI rule had not been waste under RCRA.’’ support allowing the use of uncorrected codified in the CFR pursuant to the We note, however, that although gases CEMS data during startup and Delay Notice. Therefore, by not must be ‘‘contained’’ to be solid wastes shutdown. Several commenters are including the amendatory instruction to under RCRA, EPA maintains separate concerned that the 4- hour startup and delete the definition in the 2000 rule in and independent authority under RCRA a 1-hour shutdown period (derived from the proposed reconsideration rule, we to regulate certain types of uncontained a single coal fired unit) are not sufficient proposed to retain the definition as gases whether or not they themselves for all the CISWI unit types and contained in the 2000 CISWI rule. are solid wastes (e.g., gases emitted from 8 technologies. Other commenters believe However, as explained above, due to the the management of ). there should be no time limitations on Comment: Some commenters also vacatur of the Delay Notice, the 2011 shutdown and startups. One requested that EPA clarify that landfill CISWI rule is in effect and the definition commenter, however, believes the gas is not considered to be a ‘‘contained of contained gaseous material does not proposed time limit is appropriate. gaseous material’’ and/or a ‘‘solid appear in that rule. For that reason, we Some commenters recommend using the waste’’ under RCRA. are including the definition of Boiler MACT rule approach using load ‘‘contained gaseous material’’ found in Response: We agree with commenters to define when the O2 corrections do not the 2000 CISWI rule in today’s final that landfill gases must be in a container when that container is combusted to be apply. rule. Commenters also urge the EPA to considered ‘‘contained gaseous Comment: Many commenters who eliminate the O correction for all CEM- material’’ under today’s final CISWI 2 supported the EPA retaining the 2000 measured emission limits, not just CO, regulations. CISWI rule’s definition of ‘‘contained during startup and shutdown periods. gaseous material’’ also urged the Agency However, given that is emitted from solid waste (i.e., non- Commenters also support making this to make clear that this definition should allowance available to all types of apply when interpreting the term ‘‘solid hazardous solid waste or municipal waste landfills), EPA has CISWI unit, not only ERUs. waste’’ under RCRA. Response: In today’s final rule, we are distinct and independent authority Response: As aforementioned, the retaining the provision that allows under RCRA to regulate this material as Agency is including the definition of sources to use uncorrected CO CEMS part of our authority to regulate solid ‘‘contained gaseous material’’ found in data during periods of startup and waste landfills (for example, in order to the 2000 CISWI Rule in today’s final shutdown. Based on comments and the address the risk of explosions posed by rule. Specifically, the definition of technical justifications for allowing the methane emissions per 40 CFR 258.23).9 ‘‘contained gaseous material’’ is codified use of uncorrected CEMS data identified today, consistent with the 2000 CISWI during the comment period, we are Noe. A copy of this letter has been placed in the Rule, as meaning, ‘‘gases that are in a expanding this provision to any container when that container is docket for today’s rulemaking. 7 pollutant for which continuous combusted.’’4 See 76 FR at 80472–80473. 8 RCRA section 3002(a) directs EPA to establish compliance is being determined using CAA section 129(g)(6) states that the standards for hazardous waste generators and RCRA CEMS as explained above in ‘‘Section definition of ‘‘solid waste’’ shall have section 3004(a) directs EPA to establish II.C: Summary of Significant Changes performance standards for all facilities that treat, the meaning established by the Since Proposal.’’ Administrator pursuant to RCRA. We store or dispose of hazardous waste. Both of these provisions grant authority to control gaseous agree that the definition of contained emissions from hazardous as Particulate Matter Continuous gaseous materials in the final CISWI may be necessary to protect human health and the Monitoring Provisions for Large ERUs rule is consistent with the interpretation environment. RCRA sections 3004(n), and (o)(1)(B), and Waste-Burning Kilns of that term under RCRA for the purpose further direct EPA to regulate air emissions from, respectively, hazardous , storage Comment: Several commenters of defining when non-hazardous and disposal facilities; and hazardous waste supported the EPA’s proposal to remove secondary materials are solid wastes incinerators. The authority provided in RCRA requirements for PM CEMS (using PS– 5 when combusted in CISWI units. As section 3004(q) to regulate fuel produced from 11) for continuous compliance for large discussed in more detail in the NHSM hazardous waste also encompasses gaseous fuels (when they are produced from hazardous ERUs and waste-burning kilns, stating portion of the December 2011 wastes).The authority provided in RCRA section that PM CEMS usefulness and reconsideration proposal and in various 3004(u) to control ‘‘releases’’ of hazardous application issues of these monitors are 6 letters issued by EPA, the NHSM constituents from solid waste management units at uncertain. Commenters asserted that, for a facility seeking a RCRA permit also encompasses biomass ERUs and sources with low PM 4 See 65 FR at 75359 and 75373. gaseous releases (when the gases are hazardous constituents). The authority granted under these concentration, PM CEMS were not 5 Note that for the purposes of CISWI, contained gaseous materials are limited to gases in a container sections of the statute is independent of EPA’s adequate to accurately monitor low PM when that container is combusted. This limitation authorities over solid waste. As an example, EPA concentrations. Commenters further has authority to regulate emissions generated is due to the fact that CAA section 129 is focused contended that PM CPMS are essentially exclusively on combustion of non-hazardous solid during treatment of hazardous waste, including wastes. On the other hand, RCRA is focused on volatilization and incineration of hazardous waste. the same thing as PM CEMS, and that more than just combustion of non-hazardous solid 9 RCRA Subtitle D gives EPA authority to set there were no clear instructions on how wastes (e.g., treatment, storage, and disposal of standards for non-hazardous waste disposal to ‘‘certify’’ PM CPMS, as was required hazardous and non-hazardous wastes); thus, this facilities, including standards for air emissions. For in the proposed rule. Commenters limitation is inapplicable to RCRA. We also note example, EPA’s criteria for municipal solid waste that the term ’container’ as used in this definition landfills, established pursuant to RCRA sections added that they do not understand how is broader than the term as used in the hazardous 1008(a)(3), 2002, 4004(a), and 4010(c), generally the recording of hourly and 30-day waste regulations (see 40 CFR 260.10, definition of address air quality by prohibiting the open burning rolling averages of the output from these container). Specifically, the term here is not limited of waste and by setting limits on the concentration to a portable device, but also includes stationary of explosive gases (i.e., methane). See also March monitors will be useful to demonstrate containers. We believe that these interpretations 6, 1986 Letter from Marcia E. Williams to Mr. H. under the CAA and RCRA are consistent. Lanier Hickman, Jr., which states, ‘‘[W]e believe it 3004(n) and 4004(a) of RCRA, as well as the CAA, 6 For example, see June 25, 2012 letter from is clear that the U.S. Environmental Protection to regulate gaseous emissions from hazardous and Assistant Administrator Mathy Stanislaus to Paul Agency (EPA) has the authority under both Sections non-hazardous waste landfills.’’

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performance or evaluate compliance nonlinear curve) that will be used to structure, size and other physical with a PM limit. One commenter define the relationship between the PM characteristics as well as PM mass in the suggested that the EPA remove the PM CEMS output and the test method exhaust gases for each site. Put another CPMS requirements altogether for all measured PM concentrations. Each site- way, these light-based PM CEMS industrial boilers. specific correlation must meet several produce a signal that can vary when Response: We are revising the PM PS–11 acceptance criteria including different fuels or raw materials are CEMS requirements in the final rule as limits on confidence interval and introduced to the kilns or ERU even explained above. tolerance interval equating to ±25 when the FF outlet mass concentration In responding to this comment percent of the applicable emissions remains unchanged. specifically, we believe it is useful to limit. To the extent that physical review the procedures and acceptance characteristics of the PM in the stack criteria of PS–11, the protocol mandated Discussion of Technical Issues remain stable, correlations for light- by the 2011 final CISWI rule. In prior comments submitted to the based PM CEMS meeting PS–11 EPA on the PM CEMS requirements for Performance Specification-11 performance criteria can represent mass waste-burning kilns, one issue raised rates to the degree of accuracy required PS–11 is structured differently than about conducting the testing to meet the by PS–11. For example, there are other PSs that apply to validating the PS–11 correlation development various design structures used in some performance of gaseous pollutant CEMS. requirement is the impracticality of light-based PM CEMS devices that can This is primarily because the pollutant, varying the emissions from a FF control mitigate the effects of changes in the PM, is defined entirely by the test device. Many CISWI units subject to the physical aspects of particles on method specified by regulation to standards use FF control devices. measurement uncertainty. In addition to measure it. As the industry commenters We agree with commenters that there the type of light effect measured (e.g., note, there are no independent standard are typically few, if any, physical Rayleigh or Mie scattering or light reference materials for PM adjustments one can apply to a FF or to scintillation), the detector wavelength concentrations as there are for gaseous the waste-burning kiln process to and the frequency are design factors that pollutants (e.g., NIST traceable change the outlet PM concentration will affect how the PM CEMS responds compressed gases for validating SO2 or significantly. A FF produces essentially to small changes in the physical NOX instrumental measurements). The a constant outlet concentration even appearance of the PM. only reference standard for determining with changes to the inlet loading or flow On this point, we note that if a source the PM concentration in an air or stack (http://www.epa.gov/ttnchie1/mkb/ owner were concerned about the ability gas sample is the reference test method. documents/ff-pulse.pdf). Although PS– of a light-based PM CEMS to meet the In the case of the CISWI final rule, the 11 allows some flexibility when control requirements of PS–11 because of rule specifies EPA Method 5 for device perturbations are not possible, variable physical characteristics of measuring filterable PM concentration the resulting correlation would apply particles in the stack, there is at least (e.g., in mg/dscm). for only the narrow range of one other PM CEMS technology based Performance Specification 11 concentrations measured during the more directly on mass measurement provides procedures and acceptance testing. The result would be that the PM rather than on light scatter or light criteria for validating the performance of CEMS would be correlated only for a scintillation characteristics. The several types of PM CEMS technologies. relatively small range of conditions currently available Beta gauge Although there are multiple instrument below the applicable compliance limit. technology does not suffer from this and data reporting operational This range would not necessarily particular technical problem. The Beta performance checks in PS–11 that are include situations where the standard attenuation PM CEMS, also called Beta similar in concept to those for gaseous might be exceeded. Without the ability gauge, extracts a sample for the stack gas pollutant CEMS, there is a principal PM to calculate emissions should the FF and collects the PM on a filter tape. The CEMS performance requirement that is performance change from initial test device periodically advances the tape distinctly different. That difference is conditions (e.g., bag leaks begin to from the sampling mode to an area the development of a site-specific PM develop), such a limited correlation where the sample is exposed to Beta CEMS correlation or mathematical range would render the PM CEMS less radiation. The detector measures the response curve. There are two key reliable for calculating long term amount of Beta emitted by the sample procedural elements to developing that average concentrations or emissions and that amount can be directly related correlation. First, PS–11 requires that rates and for verifying compliance. to the mass of PM on the filter. The Beta the source conduct stack test runs using Additionally, it is difficult and resource gauge sensitivity or detection limit can an EPA PM test method (e.g., Method 5) intensive to modify baghouse control be enhanced (i.e., lowered) with greater and simultaneously collect efficiency in a way that is representative sample volumes produced from corresponding PM CEMS output data. of normal operations at a waste-burning sampling intervals up to an hour or Second, the source must vary the kiln. longer. operation of the control device Commenters also cited problems in Another PM mass detector projected manually in order to produce a range of developing correlations in stack gases for greater use as PM CEMS is the PM concentrations. Performance with variable PM constituents and TEOM. Often used in measuring Specification 11, section 8.6, requires at physical characteristics when using ambient levels of PM, the TEOM least five test runs at each of three light scatter or scintillation detection operates on a basic principle that can be different operating conditions (i.e., low, PM CEMS devices. As noted above and made traceable to NIST laboratory mid and high PM concentrations) for a in the EPA’s technology background standards. The TEOM can provide a total of 15 or more test runs that range documents (e.g., http://www.epa.gov/ continuous measure of PM mass in a from 25 to 100 percent of allowable ttn/emc/cem/pmcemsknowfinalrep.pdf sample extracted from the stack and emissions. Then the source must use the and http://www.epa.gov/ttn/emc/cem/ routed to the detector. Tapered element test method data and the corresponding r4703-02-07.pdf), the correlations oscillating microbalance based PM PM CEMS output data to develop an developed for these types of instruments CEMS are not yet commercially equation (i.e., a calculated linear or are inherently dependent on the particle available.

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Commenters identified another factor method measurements alone would be involves variability not only of the PM contributing to the difficulty of meeting about half of the correlation limit CEMS but also the Method 5 test data, PS–11 correlation requirements for low allowed in PS–11. To achieve a PQL of variability of raw material and additive PM concentrations corresponding to a 1 mg/dscm and a measurement feeds to the waste-burning kiln, and the low applicable emissions limit, as with uncertainty of about ±0.01 to 0.2 mg/ changing particle sizes, shapes, and the promulgated PM standards here for dscm, one would need to conduct a test density with process operations (e.g., waste-burning kilns and biomass ERUs. run of 6 hours or longer. As noted mill on versus mill off, type of fuel We have recently reevaluated the above, the PS–11 correlation being used in the ERU). capabilities of the EPA Method 5 for calculations would also have to account Making PM CEMS work at low measuring low concentrations of PM for any PM CEMS analytical and concentrations (<10 mg/dscm) at waste- (See the memo ‘‘Revision of Estimated measurement variability. burning kiln and biomass ERU sources Method 5 Detection Limit’’ in the CISWI Using data from longer Method 5 test is not impossible; although, to expect docket) and have determined a Method runs will improve the probability of a that correlations would be achievable at 5 method detection limit of PM CEMS meeting PS–11 correlation all low emissions sources would be approximately 2 mg/dscm for a 1-hour requirements but, as commenters note, unrealistic. Additionally, the technical test run. The uncertainty of a will also raise practicality concerns limitations do not mean that PM CEMS measurement with Method 5 at this PM without completely resolving the issue. cannot be used to monitor for concentration would be from 50 to 100 For example, the time to complete 15 1- compliance. A PM CEMS that does not percent (i.e., ±1 to 2 mg/dscm). We can hour test runs under three different meet the EPA correlation requirements determine a PQL using ∼3 × method emissions conditions may be 3 to 6 days can still produce data indicative of detection limit to reduce that Method 5 of field work, while the time to trends and changes in emissions measurement uncertainty to ±10 to 20 complete 15 6-hour test runs under control. Particulate Matter CEMS percent. That means that the PQL for a three different emissions conditions will technology can be effective in 1-hour test run with Method 5 would be require at least 2 weeks of field work in monitoring control device performance approximately 6 mg/dscm ±0.6 to 1.2 order to produce and maintain the (see, e.g., 77 FR 9371 (February 16, mg/dscm. operating conditions associated with 2012)) where the EPA established PM The CISWI PM emissions limit for three different emissions rates. Longer CPMS parametric operating limits for existing waste-burning kiln sources is test runs lower the variability of Method electric utility steam generating units. 3.6 mg/dscm, and is 11 mg/dscm for 5 PM measurements at near detection A Monitoring Approach Alternative to biomass ERUs. The new source limits limit levels from ± 50 percent to below PM CEMS and PS–11 are the same for waste-burning kilns but ± 25 percent; however, the variability of are 5.1 mg/dscm for biomass ERUs. As Method 5 results at these low levels To address technical issues associated noted above, PS–11 specifies acceptable represents a significantly larger portion with PM CEMS meeting PS–11 criteria for a correlation directly related of the ± 25 percent correlation correlation requirements at low PM to the applicable emissions limit. For a requirement of PS–11 than would emissions concentrations from waste- PM CEMS set up to measure compliance Method 5 data collected at higher PM burning kilns and biomass ERUs, the with a 3.6 mg/dscm limit, the inherent concentrations. Method 5 measurement impracticability in perturbing FF uncertainty associated with a 1-hour uncertainty becomes increasingly emission rates to establish PS 11 Method 5 measurement (±0.6 to 1.2 mg/ greater with lowering PM concentration correlation curves, and the potentially dscm) would constitute more than half and thus reference measurement variable PM emissions characteristics of the ±25 percent of the applicable PS– variability hinders the PS–11 correlation expected from waste-burning kilns, the 11 acceptance threshold (i.e., ±0.9 mg/ process the most for the best performing EPA is finalizing the change of the dscm) of the mid-level PS–11 sources. Thus, the ultimate result might compliance basis for the PM emissions correlation test (i.e., the correlation for still lack certainty and would also pose limit from PM CEMS. For monitoring the middle of the three PS–11 the most difficulty and uncertainty to continuous compliance, the rule correlation points). Factoring in the those sources with lower PM requires PM CEMS equipment but, as inherent PM CEMS response variability concentrations (potentially explained below, that equipment would and the uncertainty associated with the disadvantaging more efficient be used for continuous parametric representative sampling (e.g., PM and operators). monitoring rather than for direct flow stratification), we agree with Although longer Method 5 test runs measure of compliance with the commenters that trying to satisfy PS–11 and longer beta gauge sampling times numerical PM emissions limit. at such low concentrations using 1-hour reduce difficulties with PS–11 Specifically, this final rule recognizes Method 5 test runs would be correlation for a PM CEMS, the EPA the value of PM monitoring technology problematic. This drawback applies believes that this correlation will not be sensitive to changes in PM emissions regardless of the type of PM CEMS technically achievable for a significant concentrations and use of such a tool to technology used. number of waste-burning kiln and assure continued good operation of PM As commenters to the Portland biomass ERU sources, a result in part control equipment. This approach Cement NESHAP have noted, one can due to the Method 5 PM emissions avoids the PM CEMS calibration (i.e., improve the method detection measurement variability at the low PS–11 correlation). Therefore, the EPA capabilities of the Method 5 or other concentrations necessary to maintain is including provisions that a site- filterable PM test method by increasing compliance with the standard. The PM specific parametric operating limit be sampling volume and run time. For CEMS correlations then become established during the performance test, example, a test run time of about 2 approximations more qualitative than that there be continuous monitoring of hours will improve the Method 5 PQL quantitative with high levels of that parametric limit using a PM CPMS, to about 3 mg/dscm. The measurement uncertainty at low concentrations (i.e., that an exceedance of that site-specific uncertainty associated with a 2-hour test the correlations do not meet PS–11 operating limit be reported as a run at 3 mg/dscm would be about ±0.3 requirements). This characteristic exists deviation and trigger immediate to 0.6 mg/dscm. At this level, the regardless of the type of PM CEMS corrective action and a Method 5 uncertainty associated with the PM test technology used by the source since it performance test within 45 days.

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In the May 2012 Proposed National relevance to the outcome of the rules. implementation of the emission limits. Emission Standards for Hazardous Air We have concluded that no However, we realize that some CISWI Pollutants for the Portland Cement clarifications to the underlying rules are owners and operators are likely to Manufacturing Industry and Standards warranted for the 19 remaining determine that alternatives to waste of Performance for Portland Cement petitioners’ issues for the reasons set incineration are viable, such as further Plants The EPA proposed the use of PM forth in the memorandum titled waste segregation or sending the waste CPMS for continuous monitoring of PM ‘‘Denied CISWI Petition Issues’’ found to a landfill or MWC, if available. In emissions as a 30-day rolling average in the CISWI docket. The following fact, sources operating incinerators, established by identifying the average issues are addressed in that where energy recovery is not a goal, may PM CPMS response corresponding to memorandum. find it cost effective to discontinue use • the highest 1-hour PM compliance test. Work practice standards should be of their CISWI unit altogether. Failure to meet this 30-day rolling used for startup/shutdowns and Therefore, we have estimated emissions average would result in retesting. malfunctions. • reductions attributable to existing Industry commented that this Exempt or revise limits for units sources complying with the limits, as requirement would trigger unnecessary combusting de minimis amounts of well as those reductions that would retests for many facilities, especially for waste. occur if the facilities with incinerators cleaner sources. This is a legitimate • Clarify applicability of CISWI and small, remote incinerators decide to issue. To avoid a perverse result, the standards to marine vessel units or units discontinue the use of their CISWI unit EPA is modifying the way PM CPMS located on the outer continental shelf. and use alternative waste disposal operating limits are established. Sources • Clarify applicability to temporary or whose compliance with the PM portable units. options. emission standard are shown to be 75 • Reduce performance testing For units combusting wastes for percent or below the emission limit in requirements to be more consistent with energy production, such as ERUs and the PM method 5 compliance test will requirements of other rules. waste-burning kilns, the decision to set their PM parametric operating limit • Reconsider elimination of combust or not to combust waste will to be a 30-day rolling average equivalent provisions that allow missing CEMS depend on several factors. One factor is to that 75 percent level. Sources whose data. the cost to replace the energy provided • compliance with the PM emission Do not include emissions data for by the waste material with a traditional standard are above 75 percent of the combination boiler units. fuel, such as natural gas. Another factor • emission limit will establish their CISWI does not satisfy CAA would be whether the owner or operator operating limit as a 30-day rolling 112(c)(6) requirements for POM and is purchasing the waste or obtaining it average equal to the average PM CPMS PCB. • at no cost from other generators, or if values recorded during the PM MACT floor statistical approach they are generating the waste on-site compliance test. It should be noted that concerns. and will have to dispose of the materials • MACT floor must reflect the this provision does not affect the actual in another fashion, such as landfills. average, the UPL is not the same as the emission limit that must be met. Lastly, these units would have to average emission level. F. What other actions are we taking? • MACT floor pollutant-by-pollutant compare the control requirements needed to meet the CISWI emission In this final action, we are denying approach concerns. limits with those needed if they stop requests for reconsideration on all • Non-detect methodology is burning solid waste and are then subject issues contained in the petitioners’ unlawful. to a NESHAP instead. As mentioned requests for reconsideration that we did • Beyond-the-floor analysis is before, we have attempted to align the not include in the December 23, 2011, unlawful and arbitrary. • proposed rule. The issues for which we Compliance cost and wildlife monitoring requirements for similar are denying reconsideration failed to concerns for small remote incinerators. non-waste-burning sources as closely as • meet the standard for reconsideration ‘‘Refinery gas’’ definition should be possible in an effort to make them included in the CISWI rule. consistent and to help sources make the under CAA section 307(d)(7)(B) and we • determined that reconsideration was not Clarify that construction and cross-walk between waste and non- otherwise appropriate. Specifically, on demolition wood is not a solid waste. waste regulatory requirements as simple as possible. these issues, the petitioner has failed to G. What are the impacts associated with show the following: That it was the amendments? The emissions reductions that would impracticable to raise their objections be achieved under this final rule using during the comment period; or that the 1. What are the primary air impacts? the definition of solid waste under grounds for their objections arose after We have estimated the potential RCRA and the proposed CISWI emission the close of the comment period; and/ emissions reductions from existing limits are presented in Table 5 of this or that their concern is of central sources that may be achieved through preamble.

TABLE 5—EMISSIONS REDUCTIONS FOR MACT COMPLIANCE AND ALTERNATIVE DISPOSAL OPTIONS FOR EXISTING CISWI USING THE EMISSION LIMITS

Reductions achieved assuming incinerators Reductions achieved and small, remote Pollutant through meeting MACT incinerators use alter- (ton/yr) native disposal (ton/yr) a

HCl ...... 772.2 784.3 CO ...... 20,093 20,058 Pb ...... 2.5 2.71

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TABLE 5—EMISSIONS REDUCTIONS FOR MACT COMPLIANCE AND ALTERNATIVE DISPOSAL OPTIONS FOR EXISTING CISWI USING THE EMISSION LIMITS—Continued

Reductions achieved assuming incinerators Reductions achieved and small, remote Pollutant through meeting MACT incinerators use alter- (ton/yr) native disposal (ton/yr) a

Cd ...... 1.807 1.809 Hg ...... 0.341 0.344 PM (filterable) ...... 2,397 2,401 dioxin, furans ...... 0 .000062 0 .000064 NOX ...... 5,292 5,399 SO2 ...... 6,211 6,262

Total ...... 34,771 34,909 a The estimated emission reduction does not account for any secondary impacts associated with alternate disposal of diverted ERU fuel.

The EPA expects that many existing population. In comparison, the We estimate that there could be one new CISWI owners and operators may find incinerator subcategory in this rule, incineration unit within the next 5 years that alternate disposal options are which contains any such units subject following this final rule, and possibly preferable to complying with the to the 2000 CISWI rule, has 27 units. five new small remote incinerators standards for the incinerator and small, The EPA is not aware of any within that time. In these cases, we have remote incinerator subcategories. Our construction of new units since 2000 so developed model CISWI unit emissions experience with regulations for MWC, we do not believe there are any units reduction estimates for these HMIWI and, in fact, CISWI, has shown that are currently subject to the 2000 subcategories using the current existing that negative growth in the source CISWI NSPS. The revised CISWI rule is unit baseline, based on average emission category historically occurs upon more stringent so we expect this trend concentration values and sizes from our implementation of CAA section 129 to continue. However, the EPA does current inventory and the new source standards. Since CISWI rules were recognize that some facilities may opt to emission limits. Table 6 of this promulgated in 2000 and have been in replace aging incinerator units with new effect for existing sources since 2005, units where it is cost effective or preamble presents the model plant many existing units have closed. At alternative disposal options are not emissions reductions that are expected promulgation in 2000, the EPA feasible, as may be the case with some for new sources. estimated 122 units in the CISWI incinerators, or in very remote locations.

TABLE 6—EMISSIONS REDUCTIONS ON A MODEL PLANT BASIS

Emission reduction for CISWI subcategory model units Pollutant (tpy unless otherwise noted) Small, remote Incinerator incinerator

HCl ...... 2.62 0 .0 CO ...... 0.0 0.25 Pb ...... 0.55 0 .11 Cd ...... 0.15 0 .019 Hg ...... 0.0026 0.00036 PM (filterable) ...... 103 10 .7 D/F (total mass) a ...... 0 .0011 0.0 NOX ...... 11 .3 0.0 SO2 ...... 5 .1 4 .5 Total ...... 122 22 .0 a D/F estimates are given in lb/yr.

We do not anticipate that any new definition of solid waste. Consequently, practiced and that several state waste energy recovery or waste-burning kiln new cement kiln owners will assess tire management programs are already units will be constructed and will their regulatory requirements under in place and would most likely be a instead use alternative waste disposal CISWI for burning whole tires or tire- viable option for new kiln owners so methods or alternative fuels that will derived fuel that does not have metals that they would not be subject to the not subject them to the CISWI rule. For removed against the costs associated CISWI regulations. Indeed, we expect example, whole tires obtained from with removing the metal or obtaining that all existing cement kilns that are approved tire management programs tires from an approved source and classified as being waste-burning solely and tire-derived fuel from which the complying with the applicable NESHAP due to whole tires will, by the effective metal has been removed is not instead of the CISWI rule. Our research date for the CISWI standards, find a way considered solid waste under the suggests that metal removal is routinely to obtain their tires through an approved

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tire management plan. Likewise, new horsepower may cause slight increases flare emission factors and landfill gas sources could engineer their process to in electricity consumption and sorbent chlorine, Hg and sulfur concentrations, minimize waste generation in the first injection controls would likewise the following emissions would be place or to separate wastes so that the require electricity to power pumps and expected: 20 tons of PM; 8 tons of HCl; materials sent to a combustion unit motors. In our analysis, we have 16 tons of SO2; 890 tons of CO; 46 tons would not meet the definition of solid selected the lowest cost alternative (i.e., of NOX; and 1.4 lbs of Hg. waste to begin with. For waste that is compliance or alternative disposal) for Similar to existing units, we generated, our cost analyses have found each facility. By our estimate, we anticipate minor secondary air impacts that alternative waste disposal is anticipate that an additional 217,400 for new CISWI units adding controls as generally available and less expensive. MW-hours per year would be required discussed above. for the additional and improved control 2. What are the water and solid waste 5. What are the cost and economic devices. impacts? impacts? As discussed earlier, there could be In our analysis, we have selected the instances where owners and operators We have estimated compliance costs lowest cost alternative (i.e., compliance of ERUs and waste-burning kilns decide for all existing units to add the or alternative disposal) for each facility. to cease burning waste materials. In necessary controls and monitoring We anticipate affected sources will need these cases, the energy provided by the equipment, and to implement the to apply additional controls to meet the burning of waste would need to be inspections, recordkeeping and emission limits. These controls may use replaced with a traditional fuel, such as reporting requirements to comply with water, such as wet scrubbers, which natural gas. Assuming an estimate that the final CISWI standards. We have also would need to be treated. We estimate 50 percent of the energy input to ERUs analyzed the costs of alternative an annual requirement of 71 billion and kilns are from waste materials, an disposal for the subcategories that may gallons per year of additional water estimate of the energy that would be have alternative options to burning would be required as a result of replaced with a traditional fuel if all waste, specifically for the incinerators operating additional controls or existing units stopped burning waste and the small, remote incinerators that increased sorbent use. materials, is approximately 56 TBtu/yr. may have an alternative to incineration. Likewise, the addition of PM controls For new CISWI units, we anticipate In our analysis, we have selected the or improvements to controls already in that 94 MW-hours per year would be lowest cost alternative (i.e., compliance place will increase the amount of required for additional and improved or alternative disposal) for each facility. particulate collected that will require control devices. Since we do not Based on this analysis, we anticipate an disposal. Furthermore, ACI may be used anticipate any new energy recovery or overall total capital investment of $816 by some sources, which will result in waste-burning kiln units to be million with an associated total annual additional solid waste needing disposal. constructed, there would be no cost of $271 million ($2008). For The annual amounts of solid waste that additional estimate for energy that comparison, the 2011 final rule, would require disposal are anticipated would be replaced with a traditional estimated an overall total capital to be approximately 25,400 tpy from PM fuel. investment of $652 million with an associated total annual cost of $232 capture and 13,700 tpy from ACI. 4. What are the secondary air impacts? Perhaps the largest impact on solid million ($2008). The annualized cost of waste would come from owners and For CISWI units adding controls to today’s final rule are approximately operators who decide to discontinue the meet the emission limits, we anticipate 17% higher than those of the final 2011 use of their CISWI unit and instead send minor secondary air impacts. The CISWI rule. The changes in cost result waste to the landfill or MWC for combustion of fuel needed to generate from revising the inventories of the disposal. Based on tipping fees and additional electricity and to operate ERUs, waste-burning kilns, and small availability, we would expect most, if RTO controls would yield slight remote incinerators as discussed in not all, of this diverted waste to be sent increases in emissions, including NOX, Section II.C. of this preamble: to a local landfill. As we discuss above, CO, PM and SO2 and an increase in CO2 ‘‘Summary of Significant Changes Since it may be that a good portion of the emissions. Since NOX and SO2 are Proposal.’’ incinerators would determine that covered by capped emissions trading Under the rule, the EPA’s economic alternative disposal is a better choice programs, and methodological model suggests the average national than compliance with the standards. We limitations prevent us from quantifying market-level variables (prices, estimate that approximately 110,600 tpy the change in CO and PM, we do not production-levels, consumption, of waste would be diverted to a landfill. estimate an increase in secondary air international trade) will not change For new CISWI units, we estimate an impacts for this rule from additional significantly (e.g., are less than 0.001 annual requirement of 980,000 gallons electricity demand. percent). per year of additional water would be We believe it likely that the The EPA performed a screening required as a result of operating incinerators may elect to discontinue analysis for impacts on small entities by additional controls. The annual the use of their CISWI unit and send the comparing compliance costs to sales/ amounts of solid waste that would waste to the landfill or other disposal revenues (e.g., sales and revenue tests). require disposal are anticipated to be means. As we discussed in the solid The EPA’s analysis found the tests were approximately 6.8 tpy from PM capture waste impacts above, this could result below 3 percent for four of the five and 4.7 tpy from ACI. in approximately 110,600 tpy of waste small entities included in the screening going to landfills. By using the EPA’s analysis. 3. What are the energy impacts? Landfill Gas Estimation Model, we In addition to estimating this rule’s The energy impacts associated with estimate that, over the 20-year expected social costs and benefits, the EPA has meeting the emission limits would life of a CISWI unit, the resulting estimated the employment impacts of consist primarily of additional methane generated by a landfill the final rule. We expect that the rule’s electricity needs to run added or receiving the waste would be about direct impact on employment will be improved air pollution control devices. 96,400 tons. If this landfill gas were small. For the reconsideration final, the For example, increased scrubber pump combusted in a flare, assuming typical estimated employment changes range

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between ¥400 to +900 employees, with with NSPS limits. Based on our reconsideration proposal, we have made a central estimate of +200. analysis, we anticipate an overall total several updates to the approach we use We have not quantified the rule’s capital investment of $9.3 million over to estimate mortality and morbidity indirect or induced impacts. For further 5 years with an associated total annual benefits in the PM NAAQS RIAs (U.S. explanation and discussion of our cost (for 2015) of $2.7 million. EPA, 2012a,b) 11 12, including updated analysis, see the introductory memo and 6. What are the benefits? epidemiology studies, health endpoints, Section 3 of the RIA. and population data. Although we have For new CISWI units, we have We estimate the monetized benefits of not re-estimated the benefits for this estimated compliance costs for units this regulatory action to be $420 million coming online in the next 5 years. This to $1.0 billion (2008$), 3 percent rule to apply this new approach, these analysis is based on the assumption that (discount rate) in the implementation updates generally offset each other, and one new incinerator will come online year (2015). The monetized benefits of we anticipate that the rounded benefits over 5 years and that three new small the regulatory action at a 7 percent estimated for this rule are unlikely to be remote incinerators will come online in discount rate are $380 million to $930 different than those provided below. the next year, followed by one new million (2008$). Using alternate More information on these updates can small remote incinerator per year for relationships between PM2.5 and be found in the PM NAAQS RIAs .A subsequent years. Additionally, it was premature mortality supplied by summary of the monetized benefits assumed that each model unit will add experts, higher and lower benefits estimates at discount rates of 3 percent the necessary controls, monitoring estimates are plausible but most of the and 7 percent is in Table 7 of this equipment, inspections, recordkeeping expert-based estimates fall between preamble. and reporting requirements to comply these two estimates.10 Since the

TABLE 7—SUMMARY OF THE MONETIZED BENEFITS ESTIMATES FOR THE CISWI NSPS AND EG IN 2015 [Millions of 2008$] ab

Estimated emission Total monetized Total monetized Pollutant reductions benefits benefits (tpy) (3% Discount Rate) (7% Discount Rate)

PM2.5 ...... 917 $210 to $510 ...... $190 to $460.

PM2.5 Precursors

SO2 ...... 6,262 $180 to $450 ...... $170 to $410. NOX ...... 5,399 $26 to $64 ...... $24 to $58.

Total ...... $420 to $1,000 ...... $380 to $930. a All estimates are for the implementation year (2015) and are rounded to two significant figures so numbers may not sum across rows. All fine particles are assumed to have equivalent health effects but the benefit-per-ton estimates vary between precursors because each ton of precursor reduced has a different propensity to form PM2.5. Benefits from reducing HAP are not included.

These benefits estimates represent the out in Fann, Fulcher, and Hubbell type. Directly emitted PM2.5, SO2 and 13 total monetized human health benefits (2009). NOX are the primary precursors affected for populations exposed to less PM2.5 in To generate the benefit-per-ton by this rule. Even though we assume 2015 from controls installed to reduce estimates, we used a model to convert that all fine particles have equivalent air pollutants in order to meet these emissions of direct PM2.5 and PM2.5 health effects, the benefit-per-ton standards. To estimate human health precursors into changes in ambient estimates vary between precursors benefits of this rule, the EPA used PM2.5 levels and another model to depending on the location and benefit-per-ton factors to quantify the estimate the changes in human health magnitude of their impact on PM2.5 changes in PM2.5-related health impacts associated with that change in air levels, which drive population and monetized benefits based on quality. Finally, the monetized health exposure. For example, SO2 has a lower changes in SO2 and NOX emissions. benefits were divided by the emission benefit-per-ton estimate than direct These estimates are calculated as the reductions to create the benefit-per-ton PM2.5 because it does not form as much sum of the monetized value of avoided estimates. PM2.5, thus, the exposure would be premature mortality and morbidity These models assume that all fine lower and the monetized health benefits associated with reducing a ton of PM2.5 particles, regardless of their chemical would be lower. and PM2.5 precursor emissions. To composition, are equally potent in It is important to note that the estimate human health benefits derived causing premature mortality because the magnitude of the PM2.5 benefits is from reducing PM2.5 and PM2.5 scientific evidence is not yet sufficient largely driven by the concentration precursor emissions, we used the to support the development of response function for premature general approach and methodology laid differential effects estimates by particle mortality. Experts have advised the EPA

10 Roman, et al., 2008. Expert Judgment Standards, Health and Environmental Impacts Health and Environmental Impacts Division. Assessment of the Mortality Impact of Changes in Division. June. Available at http://www.epa.gov/ December. Available at http://www.epa.gov/pm/ _ Ambient Fine Particulate Matter in the U.S. ttnecas1/regdata/RIAs/PMRIACombinedFile 2012/finalria.pdf. Environ. Sci. Technol., 42, 7, 2268–2274. Bookmarked.pdf. 13 Fann, N., C.M. Fulcher, B.J. Hubbell. 2009. 11 U.S. Environmental Protection Agency (U.S. 12 U.S. Environmental Protection Agency (U.S. ‘‘The influence of location, source, and emission EPA). 2012a. Regulatory Impact Analysis for the EPA). 2012b. Regulatory Impact Analysis for the Proposed Revisions to the National Ambient Air Final Revisions to the National Ambient Air Quality type in estimates of the human health benefits of Quality Standards for Particulate Matter. EPA–452/ Standards for Particulate Matter. EPA–452/R–12– reducing a ton of air pollution.’’ Air Qual Atmos R–12–003. Office of Air Quality Planning and 003. Office of Air Quality Planning and Standards, Health (2009) 2:169–176.

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to consider a variety of assumptions, is limited, to some extent, by data gaps, The statutory definition of ‘‘solid waste’’ including estimates based on both model capabilities (such as geographic is provided in RCRA section 1004(27). empirical (epidemiological) studies and coverage) and uncertainties in the B. NHSM Rule History judgments elicited from scientific underlying scientific and economic experts, to characterize the uncertainty studies used to configure the benefit and The agency first solicited comments in the relationship between PM2.5 cost models. Despite these uncertainties, on how the RCRA definition of solid concentrations and premature mortality. we believe the benefit analysis for this waste should apply to NHSMs used as For this rule, we cite two key empirical rule provides a reasonable indication of fuels or ingredients in combustion units studies, the American Cancer Society the expected health benefits of the in an ANPRM, which was published in cohort study 14 and the extended Six rulemaking under a set of reasonable the Federal Register on January 2, 2009 Cities cohort study.15 In the RIA for this assumptions. This analysis does not (74 FR 41). We then published a NHSM rule, which is available in the docket, include the type of detailed uncertainty proposed rule on June 4, 2010 (75 FR we also include benefits estimates assessment found in the 2006 PM2.5 31844), which the EPA issued in final derived from expert judgments and NAAQS RIA because we lack the form on March 21, 2011 (76 FR 15456). other assumptions. necessary air quality input and The March 2011, NHSM final rule The EPA strives to use the best monitoring data to run the benefits codified the standards and procedures available science to support our benefits model. In addition, we have not for identifying which non-hazardous analyses. We recognize that conducted any air quality modeling for secondary materials are ‘‘solid waste’’ interpretation of the science regarding this rule. The 2006 PM2.5 NAAQS when used as fuels or ingredients in air pollution and health is dynamic and benefits analysis 16 provides an combustion units. evolving. After reviewing the scientific indication of the sensitivity of our In October 2011, the agency literature and recent scientific advice, results to various assumptions. announced it would be initiating new we have determined that the no- It should be emphasized that the rulemaking proceedings to revise certain 17 threshold model is the most appropriate monetized benefits estimates provided aspects of the NHSM rule. On model for assessing the mortality above do not include benefits from December 23, 2011, we then published a proposed rule, which addressed benefits associated with reducing PM2.5 several important benefit categories, exposure. Consistent with this recent including reducing other air pollutants, specific targeted amendments and advice, we are replacing the previous ecosystem effects and visibility clarifications to the part 241 regulations threshold sensitivity analysis with a impairment. The benefits from reducing (76 FR 80452). These proposed revisions new LML assessment. While a LML HAP have not been monetized in this and clarifications were limited to assessment provides some insight into analysis, including reducing 20,000 tons certain issues on which the agency had received new information, as well as the level of uncertainty in the estimated of carbon monoxide, 780 tons of HCl, targeted revisions that the agency PM mortality benefits, the EPA does not 2.5 tons of lead, 1.8 tons of cadmium, believed were appropriate in order to view the LML as a threshold and 680 pounds of mercury, and 58 grams of allow implementation of the rule as the continues to quantify PM-related total D/F each year. Although we do not EPA originally intended.18 As stated mortality impacts using a full range of have sufficient information or modeling throughout the preamble to the modeled air quality concentrations. available to provide monetized proposed rule, the agency was not Most of the estimated PM-related estimates for this rulemaking, we reopening the entire NHSM rule for benefits in this rule would accrue to include a qualitative assessment of the reconsideration and would not respond populations exposed to higher levels of health effects of these air pollutants in to comments directed toward rule PM2.5. Using the Pope, et al., (2002) the RIA for this rule, which is available provisions that were not specifically study, 85 percent of the population is in the docket. identified in this proposal.19 Therefore, exposed at or above the LML of 7.5 mg/ For more information on the benefits any comments that were submitted m3. Using the Laden, et al., (2006) study, analysis, please refer to the RIA for this outside the scope of the proposal, or for 40 percent of the population is exposed rulemaking, which is available in the which the EPA did not solicit comment, above the LML of 10 mg/m3. It is docket. important to emphasize that we have III. NHSM Final Revisions 17 See October 14, 2011, Letter from high confidence in PM2.5-related effects Administrator Lisa P. Jackson to Senator Olympia down to the lowest LML of the major A. Statutory Authority Snowe. A copy of this letter has been placed in the cohort studies. This fact is important, The EPA is promulgating these docket for today’s rule (EPA–HQ–RCRA–2008– because as we estimate PM-related 1873). regulations under the authority of 18 For more information regarding the intent of mortality among populations exposed to sections 2002(a)(1) and 1004(27) of the the December 23, 2011, proposed rule, see 76 FR levels of PM2.5 that are successively RCRA, as amended, 42 U.S.C. 6912(a)(1) 80469. For more information regarding the scope of lower, our confidence in the results and 6903(27). Section 129(a)(1)(D) of the the proposed rule, see 76 FR 80470–80474. diminishes. However, our analysis 19 For example, see 76 FR 80470: ‘‘The EPA is CAA ((42 U.S.C. 7429) directs the EPA soliciting comment only on these targeted changes shows that the great majority of the to establish standards for CISWIs, which and is not reopening any other issues in the final impacts occur at higher exposures. burn solid waste. Section 129(g)(6) of NHSM rule. Comments that go beyond the scope of Every benefit analysis examining the the CAA provides that the term ‘‘solid this narrow RCRA rulemaking will not be addressed potential effects of a change in waste’’ is to be established by the EPA by the Agency when it finalizes today’s proposed environmental protection requirements rule.’’ See also 76 FR 80474 ‘‘As noted above, the under RCRA. Section 2002(a)(1) of intent of this proposal is to identify certain specific RCRA authorizes the agency to aspects of the rule which EPA is reconsidering and 14 Pope, et al., 2002. ‘‘Lung Cancer, promulgate regulations as are necessary on which it is soliciting public comment. The Cardiopulmonary Mortality, and Long-term Agency is not reopening the entire rule for Exposure to Fine Particulate Air Pollution.’’ Journal to carry out its functions under the Act. reconsideration and will not respond to comments of the American Medical Association 287:1132– directed toward rule provisions that are not 1141. 16 U.S. Environmental Protection Agency, 2006. specifically identified in this proposal.’’ and 76 FR 15 Laden, et al., 2006. ‘‘Reduction in Fine Final Regulatory Impact Analysis: PM2.5 NAAQS. 80482 ‘‘The Agency is not considering any change Particulate Air Pollution and Mortality.’’ American Prepared by Office of Air and Radiation. October. to the self-implementing, mandatory nature of the Journal of Respiratory and Critical Care Medicine. Available on the Internet at http://www.epa.gov/ttn/ § 241.3 standards for individual facilities and will 173: 667–672. ecas/ria.html. not respond to any comments on this topic.’’.

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are not addressed in this final rule, or ‘‘resinated wood.’’ These revised vehicles 21 and are handled under in the Response to Comments document definitions will be codified in 40 CFR contractual arrangements which ensure that has been prepared for this final 241.2. they are not discarded. A description of rule. how the changes to the definition a. Clean Cellulosic Biomass The Agency also notes that even accommodate the management of off- though the NHSM final rule will In today’s action, the EPA is issuing specification tires can be found in become effective on April 8, 2013, a revised definition of ‘‘clean cellulosic section III.D.1.c of this preamble. In existing facilities that currently burn biomass’’ that: (1) Makes clear that the addition to the proposed changes, we NHSMs will have a substantial amount list of biomass materials are examples are revising the definition to specifically of time before having to comply with within the definition and is not include tires that were not abandoned the CISWI standards, as the compliance intended to be an exhaustive list; and and were received from the general date for existing CISWI sources subject (2) provides a more comprehensive list public at tire collection program events. to CAA 129 standards is 5 years after the of clean cellulosic biomass to guide the A discussion of relevant comments date of publication of the CISWI final regulated community. These revisions regarding the definition, as well as our rule or 3 years after the state plan is do not change the agency’s intent under rationale for making this determination, approved, whichever happens earlier. In the March 2011 final rule, but identify can be found in section III.D.1.c of this addition, the Boiler MACT rule provides additional materials that are ‘‘clean preamble. until February 7, 2016, for existing cellulosic biomass,’’ and, thus, are d. Resinated Wood sources to comply with the standards. traditional fuels under these regulations. We recognize that new sources will A discussion of relevant comments In today’s action, the EPA is issuing have to comply with these rules sooner regarding the definition of clean a revised definition of ‘‘resinated wood’’ than do existing sources. Thus, we cellulosic biomass, as well as our that includes additional materials in believe that there will be more than rationale for making these order to be more representative of the adequate time for persons to determine determinations, can be found in section universe of resinated wood residuals whether or not a NHSM sent to a III.D.1.a of this preamble. that are currently used as fuels combustion unit is a solid waste. throughout the wood product b. Contaminants manufacturing process. Revisions C. Introduction—Summary of include: (1) Replacing the phrase Regulations Being Finalized In today’s action, the EPA is issuing a final definition of ‘‘contaminants’’ to ‘‘containing resin adhesives’’ with the In today’s rule, the EPA is finalizing clarify what constituents will be phrase, ‘‘containing binders and certain amendments and clarifications considered contaminants for the adhesives,’’ and (2) specifically to the 40 CFR part 241 regulations on purposes of the contaminant legitimacy including ‘‘off-specification resinated which we have received new criterion. Revisions include: (1) The wood products that do not meet a information, as well as specific targeted replacement of a reference to ‘‘any manufacturing quality or standard’’ revisions that are appropriate in order to constituent that will result in within this definition. A discussion of allow implementation of the rule as the emissions’’ with a specific list of relevant comments regarding the EPA originally intended. The constituents to be considered as resinated wood definition, as well as regulations being issued today are contaminants based on their status as a our rationale for making this summarized below. The intent of this precursor to air emissions; (2) the determination, can be found in section summary is to give a brief overview of removal from the definition of specific III.D.3.b of this preamble. the revised part 241 regulations. More CAA section 112(b) and 129(a)(4) 2. Contaminant Legitimacy Criterion for detailed discussions, including the pollutants that are not expected to be NHSM Used as Fuels agency’s responses to comments found in any NHSM or are adequately In today’s action, the EPA is issuing received on the proposed rule and its covered elsewhere in the definition; and in final form a revised contaminant rationale for decisions being made in (3) the removal of the phrase ‘‘including legitimacy criterion for NHSMs used as this final action, are included in section those constituents that could generate fuels to provide additional details on III.D of this preamble. In addition, in an products of incomplete combustion’’ how contaminant comparisons between effort to aid the regulated community, from the definition. A discussion of NHSMs and traditional fuels may be the EPA is including in the docket for relevant comments regarding the made. Revisions include: (1) The ability today’s rule an informational redline/ contaminants definition, as well as our to compare groups of contaminants strikeout version that identifies the rationale for making these where technically reasonable; (2) the specific changes to the regulatory text, determinations, can be found in section clarification that ‘‘designed to burn’’ as compared to the March 2011, final III.D.1.b of this preamble. rule.20 means can burn or does burn, and not c. Established Tire Collection Programs necessarily permitted to burn; (3) the 1. Revised Definitions ability to use traditional fuel data from In today’s action, the EPA is finalizing In today’s rule, the EPA is finalizing national surveys and other sources a revised definition of ‘‘established tire beyond a facility’s current fuel supplier; revisions to the three definitions collection program’’ in order to account discussed in the proposed rule: (1) and (4) the ability to use ranges of for ‘‘off-specification’’ (including factory traditional fuel contaminant levels ‘‘clean cellulosic biomass,’’ (2) scrap) tires that are contractually ‘‘contaminants,’’ and (3) ‘‘established when making contaminant comparisons, arranged to be collected, managed and provided the variability of NHSM tire collection programs.’’ In addition, transported between a tire manufacturer based on comments received on the contaminant levels is also considered. A (including retailers or other parties discussion of relevant comments proposed rule, the agency is also involved in the distribution and sale of finalizing a revised definition of regarding the contaminant legitimacy new tires) and a combustor, which is criterion for NHSMs used as fuels, as analogous to how scrap tires removed 20 This document has been titled, ‘‘NHSM 2012 Final Rule Regulation Changes’’ and is placed in from vehicles are managed. The off- 21 ‘‘Removal from vehicles’’ had been a Docket No: EPA–HQ–RCRA–2008–0329. specification tires are not removed from component of the definition.

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well as our rationale for making these determination, can be found in section coal refuse that is recovered from legacy determinations, can be found in section III.D.3.a of this preamble. piles and processed, as well as our III.D.2 of this preamble. rationale for making this determination, b. Resinated Wood can be found in section III.D.5.b of this 3. Categorical Non-Waste In today’s action, the agency is listing preamble. Determinations for Specific NHSM Used resinated wood as a non-waste fuel in as Fuels 40 CFR 241.4(a)(2), as proposed. The d. Pulp and Paper Sludge In today’s final rule, the agency is EPA has evaluated resinated wood and, In today’s action, the EPA has codifying determinations that certain based on all available information, determined that dewatered pulp and NHSMs are non-wastes when used as including consideration of the paper sludges that are not discarded and fuels. Based on all available legitimacy criteria, as well as other are generated and burned on-site by information, the EPA has determined relevant factors, has determined that pulp and paper mills that burn a that the following NHSMs are resinated wood is not a solid waste significant portion of such materials categorically not a solid waste when when used as a fuel. Based on this where such dewatered residuals are burned as a fuel in combustion units: (1) categorical non-waste determination, managed in a manner that preserves the Scrap tires that are not discarded and facilities burning resinated wood meaningful heating value of the are managed under the oversight of residuals as a fuel will not need to materials are non-waste fuels in 40 CFR established tire collection programs, demonstrate that this NHSM meets the 241.4(a)(4). This determination for pulp including tires removed from vehicles legitimacy criteria on a site-by-site basis. and paper sludge as a categorical non- and off-specification tires; (2) resinated Further, the addition of this waste represents the agency’s finding, wood; (3) coal refuse that has been categorical non-waste determination (40 after balancing the regulatory legitimacy recovered from legacy piles and CFR 241.4(a)(2)) eliminated the need for criteria with other relevant factors, that processed in the same manner as the previous resinated wood provision the burning of this material is an currently-generated coal refuse; and (4) at 40 CFR 241.3(b)(2)(ii),23 which has integral part of facility operations, and dewatered pulp and paper sludges that been removed and reserved in today’s as described in the categorical listing is are not discarded and are generated and final rule. A discussion of relevant for energy recovery and not discard. burned on-site by pulp and paper mills comments regarding the categorical non- Based on this categorical non-waste that burn a significant portion of such waste determination for resinated wood, determination, facilities meeting the materials where such dewatered as well as our rationale for making this description of this determination and residuals are managed in a manner that determination, can be found in section burning these materials as a fuel will preserves the meaningful heating value III.D.3.b of this preamble. not need to demonstrate that this NHSM of the materials. c. Coal Refuse meets the legitimacy criteria on a site- by-site basis. A discussion of relevant a. Scrap Tires In today’s action, the agency has comments regarding the categorical non- In today’s action, the agency is adding determined that coal refuse that has waste determination for pulp and paper scrap tires that are not discarded and are been recovered from legacy piles and sludges, as well as our rationale for managed under the oversight of processed in the same manner as making this determination, can be found established tire collection programs, currently-generated coal refuse, is a in section III.D.5.a of this preamble. including tires removed from vehicles non-waste fuel in 40 CFR 241.4(a)(3). and off-specification tires (including This determination is based on the fact 4. Rulemaking Petition Process for Other factory ), to the categorical list of that: (1)Legacy coal refuse processed in Categorical Non-Waste Determinations non-waste fuels (see 40 CFR 241.4(a)(1)) the same manner as currently-generated (40 CFR 241.4(b)) as proposed. Based on this categorical coal refuse meets the definition of In today’s final rule, the agency is non-waste determination, facilities processing (as codified in 40 CFR finalizing a rulemaking petition process burning the scrap tires that qualify for 241.2); and (2)the EPA’s assessment that that provides persons with an the provision will not need to such materials meet the legitimacy opportunity to submit a rulemaking demonstrate that this NHSM meets the criteria for fuels (as codified in 40 CFR petition to the Administrator, seeking a legitimacy criteria on a site-by-site basis. 241.3(d)(1)) when compared to categorical determination for additional Further, the addition to the new currently-generated coal refuse, which NHSMs to be listed in 40 CFR 241.4(a) categorical non-waste provision at 40 the agency considers to be within the as non-waste fuels. The process for CFR 241.4(a)(1) eliminated the need for definition of a traditional fuel (as submitting a rulemaking petition to the the previous scrap tire provision at 40 codified in 40 CFR 241.2). Based on this agency, as well as the factors a CFR 241.3(b)(2)(i),22 which has been categorical non-waste determination, successful application must include, is removed and reserved in today’s final facilities burning these materials as a listed in 40 CFR 241.4(b). A discussion rule. A discussion of relevant comments fuel will not need to demonstrate that of relevant comments regarding the regarding the scrap tire provision, as this NHSM meets the legitimacy criteria petition process for the categorical well as our rationale for making this on a site-by-site basis. A discussion of listings, as well as our rationale for the relevant comments regarding the categorical rulemaking petition process, 22 The scrap tire provision in the 2011 NHSM categorical non-waste determination for can be found in section III.D.4 of this final rule is now removed and the section reserved preamble. in today’s final rule: ‘‘(b) The following non- 23 The resinated wood provision in the 2011 hazardous secondary materials are not solid wastes NHSM final rule is now removed and the section 5. Streamlining of the 40 CFR 241.3(c) when combusted: reserved in today’s final rule: ‘‘(b) The following Non-Waste Determination Petition (2) The following non-hazardous secondary non-hazardous secondary materials are not solid Process materials that have not been discarded and meet the wastes when combusted: legitimacy criteria specified in paragraph (d)(1) of (2) The following non-hazardous secondary In today’s final rule, the agency is this section when used in a combustion unit (by the materials that have not been discarded and meet the streamlining the non-waste generator or outside the control of the generator): legitimacy criteria specified in paragraph (d)(1) of (i) Scrap tires used in a combustion unit that are this section when used in a combustion unit (by the determination provisions under 40 CFR removed from vehicles and managed under the generator or outside the control of the generator): 241.3(c). The public participation oversight of established tire collection programs.’’ (ii) Resinated wood used in a combustion unit.’’ process was streamlined to

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accommodate petitions that apply to unless discarded. Clean biomass is recommends that ‘‘untreated’’ be multiple combustors. In particular, the ‘‘biomass that does not contain replaced with the word ‘‘clean,’’ which regulations were adjusted to indicate contaminants at concentrations not is an adjective used in the definition to that the appropriate office in the EPA normally associated with virgin biomass distinguish other materials (e.g., ‘‘clean headquarters may handle petitions that materials’’ (codified in 40 CFR 241.2). construction and demolition wood’’). cross multiple regions. Furthermore, if a This regulatory revision would not Response: Wood pallets are determination is made that the NHSM is change the agency’s intent under the refurbished or recycled for other uses by a non-waste, the decision will be March 2011 final rule, but would pallet recyclers. When the useful life of retroactive and apply on the date the identify additional materials that are the pallet is finished, the recyclers petition was submitted. A discussion of ‘‘clean cellulosic biomass,’’ and, thus, typically remove the small amount of relevant comments regarding the would be a traditional fuel under these non-wood material inherent to pallets streamlining of the 40 CFR 241.3(c) non- regulations. While the list of clean that would inhibit combustion, such as waste determination petition process, as biomass materials is only illustrative screws or plastic fasteners. The pallets well as our rationale for the and not exhaustive, it is now more are then ready for use as fuel, and the streamlining changes made to the non- comprehensive than the list that non-wood material would not impact waste determination process, can be appeared in the definition included in whether the material can be burned in found in section III.D.6 of this preamble. the 2011 NHSM final rule. combustion units that meet the CAA One of the materials within the section 112 emission standards. The 6. Revised Introductory Text for 40 CFR definition is clean C&D wood. In light agency is not aware of instances where 241.3(a) of some confusion in comments the pallets are used as fuel directly by In today’s final rule, the agency has regarding C&D wood, the EPA is the original users and non-wood decided not to revise the introductory clarifying the meaning of the term in the material is left remaining in the pallet. text of 40 CFR 241.3(a). In its December definition of ‘‘clean cellulosic biomass.’’ Such pallets would not be considered 2011 proposed rule, the EPA considered Construction & demolition wood clean cellulosic biomass under the rule. revising this introductory text to state actually may be placed into different With respect to the other comment, that NHSMs are ‘‘presumed to be’’ solid categories, depending upon its origin. In the EPA does not agree, that the term wastes, rather than ‘‘are’’ solid wastes. accordance with the traditional fuels ‘‘untreated’’ wood pallet be replaced While the proposed change was not definition in section 241.2, clean C&D with the term ‘‘clean’’ wood pallet. The expected to be a substantive change to wood could be combusted as a term ‘‘clean’’ is defined in the the rule, but merely a reflection of the traditional fuel if it does not contain traditional fuels definition as described record at the time, it did engender some contaminants at concentrations not above, and applies to all the materials confusion among commenters. Based on normally associated with virgin wood. listed in the definition of clean the comments received, we have However, the final NHSM rule also cellulosic biomass, which includes decided not to issue revised addressed C&D wood that may contain untreated wood pallets. It would be introductory text 40 CFR 241.3(a) and, contaminated material.24 There is no redundant to define ‘‘clean’’ biomass as thus, this section will continue to read need to repeat these discussions here, including ‘‘clean’’ wood pallets. The as codified in the March 2011 NHSM except to clarify what the final rule point is that some wood pallets may final rule. A discussion of relevant means. In general, contaminated C&D contain treated wood, such as CCA comments regarding the introductory wood that has been processed to remove treated wood, and inclusion of the term text of 40 CFR 241.3(a), as well as our contaminants, such as lead-painted ‘‘untreated’’ with wood pallet would rationale for this decision, can be found wood, treated wood containing help emphasize that such treated wood in section III.D.7 of this preamble. contaminants, such as arsenic and would not be considered ‘‘clean’’ under chromium, metals and other non-wood the definition of clean cellulosic D. Comments on the Proposed Rule and materials, prior to burning, likely meets biomass. Rationale for Final Decisions the processing and legitimacy criteria Comment: Several commenters In this section, the EPA addresses for contaminants, and thus can be indicated that the definition of clean major comments the agency received combusted as a non-waste fuel (see cellulosic biomass remains ambiguous regarding the targeted revisions that further discussion in response to because it continues to include the were proposed to certain part 241 comments below). caveat that: ‘‘Clean biomass is biomass provisions in the December 23, 2011, Comment: One commenter noted that that does not contain contaminants at proposal. In discussing the comments the EPA’s specific inclusion of concentrations not normally associated received on the proposal, we also ‘‘untreated wood pallets’’ implicitly with virgin biomass materials.’’ Thus, provide the rationale for making the accepts that small amounts of non-wood notwithstanding the EPA’s attempt at revisions that are finalized in today’s material inherent to the pallets, such as expanding the definition of clean action. As previously discussed, the screws or plastic fasteners, do not cellulosic biomass, the commenters agency specifically stated that it would render those materials solid waste under believed that this sentence should be not address comments that go beyond the rule, and de minimis amounts of removed because it perpetuates the scope of this narrow RCRA non-biomass material would not require uncertainty. It is not clear what rulemaking. these types of materials to be burned in comparisons are permissible and what 1. Revised Definitions incinerators under the CISWI rule. concentration levels are appropriate. Another commenter requested that The commenters also indicated that a. Clean Cellulosic Biomass the EPA reconsider use of the word this sentence perpetuates the EPA’s The proposed rule suggested revising ‘‘untreated’’ when referring to wood erroneous interpretation of its authority the March 2011 definition of ‘‘clean pallets. The commenter argues that the under RCRA. A material does not cellulosic biomass’’ to list additional EPA does not define the word become a waste when burned for energy examples of biomass materials that are ‘‘untreated’’ and its use could create recovery just because it may contain appropriately included within this confusion. Rather, the commenter contaminants—prior to combustion— definition. These fuels are not not normally associated with virgin secondary materials or solid wastes 24 See 76 FR 15485. biomass. It becomes a waste only if it is

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combusted for the purpose of disposal, Comment: Several commenters designed to burn, whether wood or rather than for energy recovery. indicated that, as part of the EPA’s another traditional fuel (see section Response: The agency disagrees with changes in the definition of clean III.D.2 for a discussion on contaminant the commenter that defining the term cellulosic biomass, it is proposing to comparisons). In contrast, ‘‘clean C&D ‘‘clean’’ leads to ambiguity in consider treated or painted wood the wood’’ is a traditional fuel that does not identifying which materials are clean same as ‘‘virgin’’ wood if it has lower require processing and meets the cellulosic biomass. On the contrary, than de minimis levels of definition of ‘‘clean’’ (i.e., C&D wood defining the term ‘‘clean’’ is meant to contamination. While adoption of that does not contain contaminants at ensure that contaminated cellulosic numerical values in the rule would concentrations not normally associated material being burned, such as lead- require additional provisions for with virgin biomass (wood)). Thus, de painted wood or arsenic treated wood, measurements and would require minimis amounts of contaminants and does not introduce contaminants (as additional notice, the commenter other material appropriate for processed defined in 40 CFR 241.2) not normally believes that such clarity is important C&D wood would not be appropriate for associated with virgin biomass for successful implementation of the clean wood that is a traditional fuel. materials. rule. Such limits would be applied to Comment: One commenter argued The agency wishes to emphasize, ‘‘clean’’ C&D material, for instance, that states should have discretion about however, that determinations that the among other potential fuel types. The how to determine appropriate fuel cellulosic biomass used as a fuel or term de minimis is not defined quality but it should be no less stringent ingredient is clean, do not presuppose numerically in the proposed rule and than limits set by the EPA. There should any testing of contaminant levels. the commenters argue that without a be a distinction between de minimis Persons can use expert or process specific numerical de minimis limit, levels of contamination in C&D wood knowledge of the material to justify sources would not have a clear and a fuel quality standard. decisions regarding presence of understanding of whether they fall Response: We do not necessarily contaminants. under the CISWI or hazardous waste disagree with the commenter. That is, as With respect to the comment that incinerator rules. The commenter discussed in the final rule, part 241 does burning of contaminated material does recommended that the EPA define and not preempt a state’s statutory or not make it a waste, the agency has not allow for public comment on the levels regulatory standards and states are free reopened this issue for this rule and associated with the term de minimis to establish fuel quality standards for stands by its responses in the and base the de minimis levels on C&D wood. However, we would also rulemaking record for the March 2011 contaminant levels found in typical note that as solid waste is defined by the final rule.25 ‘‘virgin’’ wood. EPA under RCRA, such state standards Comment: One commenter provided Response: Regarding the addition of a would not necessarily impact the status the example of whether treated seeds definition for de minimis amounts of of the material as it relates to which that contain additives are considered contaminants remaining in processed combustion units are subject to CAA contaminants in virgin biomass. These wood, the agency does not believe it section 129 (56 FR 15546). additives may not be found in virgin appropriate to identify specific b. Contaminants seeds but are not harmful at the concentration levels. Rather, the agency concentrations found in the seeds. The interprets de minimis as that term is The December 2011 rule proposed to commonly understood; i.e., insignificant commenter questioned whether any clarify what constituents will be or negligible amounts of contamination concentration above ‘‘natural’’ considered contaminants by making the such as small wood sliver containing (concentration levels found in virgin definition of ‘‘contaminants’’ more lead paint). specific. However, the proposal material), especially when combusted as As indicated above, there also appears maintained the fundamental approach— fuel, would be prohibited and require to be confusion among commenters and was intended to cover the same additional waste regulation. regarding two different categories of constituents—as the March 2011 final Response: Seeds may be treated with C&D wood—‘‘clean C&D wood’’ that is rule. and hormones to aid in a traditional fuel, and C&D wood that The March 2011 final rule and the germination. Such chemicals do not has been processed to remove December 2011 proposed rule identified generally include contaminants as contaminants. Under the 2011 NHSM the same three ways a chemical can be defined in section 241.2; therefore, such final rule, C&D wood that has been labeled a contaminant. First, it may be treated seeds would be considered clean processed to remove contaminants, such one of the 187 HAP currently listed in cellulosic biomass. as lead-painted wood, treated wood containing contaminants, such as CAA section 112(b); second, it may be 25 See, for example, 76 FR 15523–4: ‘‘If a non- arsenic and chromium, metals and other one of the nine pollutants listed under hazardous secondary material contains non-wood materials, prior to burning, CAA section 129(a)(4); and third, it may contaminants that are not comparable to those be one of a handful of chemicals whose found in traditional fuels, and those contaminants likely meets the processing and are related to pollutants that are of concern at solid legitimacy criteria for contaminants, and combustion will result in the formation waste combustion units, then it follows that discard thus can be combusted as a non-waste of listed CAA section 112(b) and section is occurring. The contaminants in these cases could 129(a)(4) pollutants (e.g., sulfur that will not be considered a normal part of a legitimate fuel fuel but would not be considered ‘‘clean result in SO2). and are being discarded, either through destruction C&D wood.’’ Such C&D wood may in the combustion unit or through releases into the contain de minimis amounts of The definition proposed in December air. Units that burn such materials are therefore contaminants and other materials provided clarification by listing the most appropriately regulated under the CAA provided it meets the legitimacy criteria constituents that belong to the third section 129 standards for solid waste incinerators.’’ group.26 Specifically, the proposed See also 76 FR 15485, which states: ‘‘[A]s we have for contaminant levels. To meet the noted previously, the criterion or test for contaminant legitimacy criterion, determining whether a material is burned as a waste concentration levels of contaminants in 26 Eleven metal elements directly identified in or a commodity fuel is the level of the contaminant CAA section 112(b) were also listed in the proposed in the secondary material itself—that is destruction the processed C&D wood must be definition to provide the regulated community with of contaminants indicates a waste treatment activity comparable to or less than the levels in a complete list of elements that are considered rather than a commodity fuel.’’ the traditional fuel the unit was ‘‘contaminants’’ under the rule.

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revision replaced a potentially In addition, two phrases present in constituents from the definition or ambiguous reference to ‘‘any constituent the March 2011 final rule removing the references to ‘‘that will that will result in emissions’’ with the ‘‘contaminants’’ definition were not result in emissions of the air pollutants’’ four specific elements the agency included in the December 2011 and ‘‘constituents that could generate intended to be considered as proposed rule definition. First, the products of incomplete combustion’’ contaminants (chlorine, fluorine, phrase concerning constituents ‘‘that from the definition. Thus, the EPA is nitrogen, and sulfur) based on their will result in emissions of the air adopting the reasoning from the status as a precursor to air emissions. In pollutants’’ was removed since the proposal and revising the definition of all four cases, the CAA pollutant itself regulated community had expressed contaminants to incorporate these (e.g., SO2) is not likely to be present in confusion that in determining whether concepts. the NHSM prior to combustion, and the or not a NHSM meets the contaminant The EPA has decided, however, to only way to measure constituents prior legitimacy criterion, emissions from the make several modifications to the to combustion ‘‘that will result in combustion unit were to be evaluated. regulatory language of the December emissions’’ of that pollutant is to The EPA disagreed and directed readers 2011 proposed rule based on comments measure a known precursor (e.g., sulfur) to the language in sections received and information in the instead. For each of the four precursor 241.3(d)(1)(iii) and 241.3(d)(2)(iv). rulemaking record. First, in the final elements listed as contaminants in the These sections state that contaminant definition issued today, precursors will proposal, the expected fate for the comparisons are based on the presence only be considered contaminants for precursor during combustion is of contaminants in the NHSM (or NHSMs used as fuels; precursors will formation of the aforementioned products made from NHSMs in the case not be considered contaminants for of ingredients), not the resulting pollutant and the precursor makes no NHSMs used as ingredients. substantive contribution to the emissions. The proposed revision also Furthermore, precursors will not be material’s value as a fuel. For these inserted the phrase ‘‘prior to considered contaminants if they do not reasons, the agency proposed to combustion’’ into the contaminants form their corresponding pollutants. specifically identify chlorine, fluorine, definition to further emphasize that the Also, opacity has been removed from nitrogen, and sulfur as contaminants in NHSMs, not the emissions that result the contaminants definition. Finally, the place of HCl, HF, NO and SO . By from NHSMs, are to be evaluated when X 2 phrase ‘‘prior to combustion’’ has not limiting the list of precursors conducting contaminant comparisons. been inserted into the contaminants considered contaminants to these four The rationale for evaluating the NHSM, definition, as had been proposed. elements, the revised definition also and not emissions, can be found in the Contaminants in NHSMs used as fuel in made clear that the agency did not record for the March 2011 final rule.27 combustion units must still be evaluated intend to include other elements present The proposal merely added language to prior to combustion, and persons must in contaminants (such as hydrogen and ensure the rule is consistent with the still evaluate the NHSM itself (not carbon) as contaminants themselves. agency’s intent. The December 2011 proposed rule The second phrase proposed to be emissions), but the agency has also removed from the definition of removed from the March 2011 final rule determined that the topic of when to contaminants those pollutants in CAA definition was a reference to ‘‘those evaluate contaminants is more sections 112(b) and 129(a)(4) that we do constituents that could generate appropriate to address in the legitimacy not expect to find in any NHSM. products of incomplete combustion,’’ criteria than in the contaminants Specifically: also referred to as PICs. This reference definition. • Chlorine gas, HCl, HF, NOX, and was removed from the definition Additional reasoning for keeping the SO2 were removed from the definition because it was duplicative and rule provisions as proposed, and for any because they are unlikely to be found in potentially misleading. Specifically, this modifications to the proposed language, NHSMs prior to combustion and had phrase was not necessary because all are described in the following responses been replaced by the elements chlorine, PICs that the agency considers air to comments. fluorine, nitrogen and sulfur as pollutants—including dioxins, Comment: Several commenters stated discussed above; dibenzofurans, PCBs and PAHs—are that the definition of contaminants • Fine mineral fibers were removed listed in CAA sections 112(b) or should focus on contaminants released because they are releases from the 129(a)(4) and are thus already included as combusted emissions. One manufacturing and processing (not in the ‘‘contaminants’’ definition. More commenter argued that contaminants combustion) of non-combustible rock, importantly, the phrase was potentially should be compared between emitted glass or slag into mineral fibers; misleading because PIC formation contaminants and emission standards. A • Particulate matter and coke oven depends heavily on combustion second commenter reiterated previous emissions were removed because they conditions, such as air/fuel ratio and comments that contaminant levels are products of combustion unlikely to mixing. These conditions are controlled should be related to the air emissions exist in NHSMs prior to combustion; to limit emissions and neither these • and not the content of the material. For Cresol isomers m-cresol, o-cresol, conditions nor emissions are the subject support, commenters cited that the EPA and p-cresol were removed because the of this rule. The NSHM itself is the reversed its position in the proposal by listed pollutant cresols/cresylic acid subject of this rule. Thus, the removal using possible air emissions as the basis includes these three isomers; of both phrases clarified, but did not for establishing what contaminants need • Xylene isomers m-xylene, o-xylene, alter, the constituents subject to the to be compared. and p-xylene were removed because the contaminant legitimacy criterion. listed pollutant xylenes includes these The EPA believes that comments have Response: The EPA has previously three isomers; and not changed the basis for listing specific stated that contaminant levels before • Diazomethane, white phosphorus, precursors to air emissions as and after combustion can be important and titanium tetrachloride were contaminants, nor have they changed indicators of legitimacy and it maintains removed because their high reactivity the basis for either excluding specific the position from the March 2011 final makes their presence in NHSMs very rule that non-waste fuels must be unlikely. 27 For example, see 76 FR 15524–15525. similar in composition to traditional

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fuels prior to combustion.28 Because products exist, they cannot be considering the presence of sulfur or combustion and emission control compared. nitrogen in NHSMs as evidence of intent processes can destroy or remove As such, the agency has decided not to discard SO2 or NOX during contaminants, a comparison of to adopt the proposed additional combustion. To support this argument, emissions profiles alone only tells one language addressing when contaminants the commenter first noted that the EPA how well the combustion unit is are to be evaluated in the definition of has no record basis for assuming that operating, not whether the NHSM is contaminants. The agency proposed the intent of the combustor is to discard being used as a legitimate non-waste similar language in the December 2011 the constituent, rather than to generate commodity fuel.29 rule addressing this topic in the energy. Second, the commenter noted The EPA disagrees with the comment contaminant legitimacy criterion and that whether or not a boiler has that the agency reversed its position on the agency is adopting that language in emissions of regulated air pollutants, the consideration of emissions in the today’s final rule. The agency has such as SO2 or NOX when it combusts proposal by including precursors to air determined that the legitimacy criteria a precursor will depend, not on an emissions as contaminants. The agency themselves (40 CFR 241.3(d)(1)(iii) for intent to discard these pollutants, but on notes that a difference exists between fuels and 40 CFR 241.3(d)(2)(iv) for boiler operation and design. comparing ‘‘emissions’’ and comparing ingredients) are more appropriate places Two commenters also stated that the ‘‘contaminants that will result in to address this topic. preamble discussion on precursors emissions,’’ the exact language used in The EPA has also decided to add demonstrates how far removed the the March 2011 final rule. The EPA has language to the definition of EPA’s rationale for this rulemaking is clarified what it intended by contaminants clarifying that the from the concept of discard. They noted ‘‘contaminants that will result in specification of particular precursors to that the EPA is requiring combustors to emissions’’ in today’s final action. This air emissions (i.e., chlorine, fluorine, document and keep records regarding clarification involves the listing of nitrogen and sulfur) as contaminants the fact that CO is not present in specific precursors known to result in does not apply to the contaminant NHSMs, and, under CISWI, would emissions of air pollutants when legitimacy criterion for ingredients. As identify the NHSM as waste if this combusted; it also involves the removal identified by the commenters, the documentation is not maintained. The of specific pollutants known not to be contaminant criterion for ingredients commenters failed to see how this has present in NHSMs. requires comparisons to be made anything to do with a determination that Comment: Two commenters between products produced with and a material is a waste under RCRA. expressed concern that the proposed without NHSMs. Products can only be Response: The EPA disagrees with definition of contaminants conflicted compared after combustion has these comments. Precursors to with the contaminant legitimacy occurred, at which point there will be emissions of identified air pollutants are criterion for NHSMs used as ingredients no benefit to measuring levels of important and appropriate to address as in combustion units. Commenters stated precursors. contaminants in NHSMs prior to that both the definition of contaminants, The agency also notes that it does not combustion. It is also necessary to tailor as proposed, and the existing envision a situation where NHSMs the definition of contaminants to the contaminant legitimacy criterion for containing chlorine, fluorine, nitrogen realities of the combustion process, ingredients were clear when read or sulfur would be used as ingredients during which precursors present in separately but were contradictory when in such a way that would emit higher NHSMs used a fuel—many of which are taken together. The commenters levels of HCl, HF, NOX or SO2 than solid or liquid—are transformed into air encouraged the EPA to clarify the would be emitted using traditional pollutants. regulatory text. Specifically, the ingredients without the material being However, the agency agrees with commenters noted that for ingredients, considered a solid waste. In all cases, those commenters who argued that the contaminants could not be evaluated ingredients must provide a valuable revised definition, as proposed, may be prior to combustion and then used to contribution to the product being too broad with regard to precursors that compare products produced using produced, and that product must itself may not form air pollutants in all cases. NHSMs to products produced using be valuable, in order to not be For example, if the combustion of considered a solid waste. For an traditional materials. nitrogen does not form NOX in a Response: The EPA has decided not to ingredient to provide value, the agency particular situation, the agency did not include language from the December expects the ingredient to remain in a intend in its December 2011 proposed 2011 proposed rule in the definition of product rather than be destroyed or rule to consider nitrogen as a contaminants that emphasized when released via emissions. This is a key contaminant in that particular NHSM contaminant levels are to be reason why the contaminant legitimacy situation.30 The EPA noted in the evaluated (i.e., before or after criterion for ingredients focuses on proposed rule that chlorine, fluorine, combustion). While the proposed products (i.e., toxics along for the ride) nitrogen and sulfur will form pollutants additional language made clear that rather than emissions. Furthermore, the of concern in most circumstances, but NHSMs used as a fuel were to be legitimacy criteria for ingredients the agency does acknowledge that evaluated for contaminants ‘‘prior to cannot be used to avoid the legitimacy specific technologies and practices may combustion,’’ the agency agrees with the criteria for fuels if the material is being prevent these transformations from two commenters who argued that the used for both purposes. happening in the first instance, Comment: Several commenters proposed language conflicts with the particularly with regard to nitrogen (one contaminant legitimacy criterion for questioned the rationale for including ingredients. The contaminant criterion precursors to air emissions as 30 See March 16, 2012 Response from James R. for ingredients requires comparisons to ‘‘contaminants’’ under the proposed Berlow, Director, Program Implementation and be made between products produced revised definition. Some indicated that Information Division, EPA’s Office of Resource with and without NHSMs, but until the the concept is far removed from the true Conservation and Recovery to Fadi K. Mourad, DTE Energy Services, Inc. A copy of this response letter meaning of ‘‘discard,’’ with one has been placed in the docket for today’s 28 See 76 FR 15525. comment stating that the EPA has no rulemaking and is also available at http:// 29 Id. legal, rational or scientific basis for www.epa.gov/epawaste/nonhaz/define/index.htm.

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example being the use of Low NOX the formation of CAA section 112(b) or and CAA section 129(a)(4) lists. The burners with Over-Fire Air). Thus, the 129(a)(4) air pollutants, combustion of agency previously explained its contaminants definition issued in hydrogen typically leads to the decision to use both lists in the March today’s final rule does not consider formation of water vapor. 2011 final rule and does not believe constituents that are normally Comment: Several commenters comments have offered any new precursors to CAA section 112(b) or opposed the inclusion of precursors as information that would change the basis 129(a)(4) pollutants to be contaminants contaminants on the ground that the for this decision. The EPA previously if a specific technology or practice formation of related pollutants depends discussed that both lists of constituents prevents them from forming their more on boiler operation and design, are appropriate because both lists are to corresponding pollutants. process chemistry and feedstock be considered by the EPA when The definition codified in 40 CFR characteristics than on the levels of developing emission standards.31 241.2 only includes chlorine, fluorine, precursors present in the NHSMs. Furthermore, the agency has previously nitrogen and sulfur as contaminants in Response: The EPA recognizes that explained that CAA section 129 cases where ‘‘combustion will result in unit design and operating conditions provides that the term ‘‘solid waste’’ the formation of hydrogen chloride can impact the transformation of shall have the meaning promulgated by (HCl), hydrogen fluoride (HF), nitrogen chlorine, fluorine, nitrogen and sulfur the EPA under RCRA and that the EPA oxides (NOX), or sulfur dioxide (SO2).’’ into air pollutants. Rather than viewing has the authority to interpret RCRA to When compared to the December 2011 this as a reason to ignore the pollutants decide whether NHSMs are solids proposed rule, the only constituents no these elements commonly form, the wastes or not.32 The agency notes that longer considered contaminants due to agency views this as further evidence it has carefully considered the CAA this modification are chlorine that will why precursor levels must be section 112(b) and 129(a)(4) lists of not form HCl during combustion, considered when determining which set pollutants and removed those fluorine that will not form HF during of CAA standards—which in turn constituents that would not be combustion, nitrogen that will not form regulate unit operating conditions— appropriate to evaluate in NHSMs. should apply. NOX during combustion and sulfur that Second, the commenters base their will not form SO2 during combustion. Comment: Two commenters suggested that the EPA follow a different approach proposed approach to defining This is consistent with the March 2011 contaminants purely on emissions. The NHSM final rule, under which these for defining contaminants and use a method similar to what the agency used agency agrees that emissions may be a constituents would not be contaminants means of discard but contaminants that when they would not ‘‘result in for the used oil specification in 40 CFR are destroyed by the combustion process emissions’’ of CAA section 112(b) or 279.11. In each case, the commenter or incorporated into products may not section 129(a)(4) pollutants. suggested that for NHSMs, the Although the EPA is not currently definition of contaminants should be have emission standards established aware of any technologies or practices limited to sulfur, nitrogen, chlorine, Cd, under CAA section 129. Combustion that prevent chlorine, fluorine or sulfur Hg and lead because those are the may still be a means of discard in these in NHSMs from forming their associated elements Congress addressed in CAA instances. Thus, a definition of pollutants during combustion (the EPA section 129. This approach, they argued, contaminants based only on the CAA is aware of such examples with would be similar to what the EPA did section 129 emissions standards only nitrogen), the agency considers it when developing the used oil tells one how well the combustion unit reasonable and appropriate to adopt the specifications. The point the is operating, not whether the NHSM is same language for all four precursors to commenters wished the agency to draw being used as a legitimate non-waste 33 allow for future technological advances from the used oil specification approach commodity. preventing the transformation of these is that it addressed elemental species, as Comment: Several commenters elements into pollutants during opposed to individual compounds. addressed the specific constituents combustion. Using sulfur as an example, the proposed to be removed from the Comment: One commenter stated that commenters reasoned that it is the definition of contaminants. In general, the consideration of precursors to air underlying presence of sulfur-bearing comments were supportive of the emissions as contaminants could be materials in the NHSMs, as opposed to concept that constituents unlikely to be used to make the most fundamental of individual sulfur-containing found in NHSMs prior to combustion or all elements, hydrogen, a contaminant compounds on the section 112(b) list, adequately measured elsewhere in the because it is present in nearly all which effects emissions of SO2. definition should be removed from the regulated pollutants. The presence of Response: The EPA disagrees with the definition. hydrogen in a NHSM could then be approach outlined by the commenters Multiple commenters asked that CO considered evidence of intent to discard and has issued a final definition of also be removed from the definition pollutants that contained hydrogen. contaminants based on both the CAA because it is unlikely to be found in Response: Under the proposed section 112(b) and the CAA section NHSMs. The same commenters asked contaminants definition, only the 129(a)(4) lists, as was proposed. We do that opacity be removed from the specific precursor elements listed agree with the commenters, however, definition because it can only be (chlorine, fluorine, nitrogen and sulfur) that identifying precursors that will measured in emissions and is not are considered contaminants. The EPA form certain CAA pollutants in the directly related to any one specific determined in the proposal, and adopts definition of contaminants is constituent in NHSMs. Particulate as its final decision today, that these are appropriate. The approach outlined by matter and coke oven emissions were the only four precursors necessary to the commenters appears to be based on removed, noted the commenters, evaluate when comparing contaminants two premises that the EPA has because they are products of between NHSMs and traditional fuels. previously considered and decided not combustion unlikely to exist in NHSMs The agency specifically decided not to to adopt. include hydrogen on this list. Whereas First, the commenters do not think the 31 See 76 FR 15524–15525. See also, 75 FR 31883. combustion of chlorine, fluorine, definition of contaminants should 32 See 76 FR 15469–15470. See also, 76 FR 15473. nitrogen and sulfur typically leads to reference both the CAA section 112(b) 33 See 76 FR 15525.

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prior to combustion, and the same can thus, it is set apart in the NHSM rule. removed and reserved in today’s final be said for CO and opacity. To be clear, asbestos is included in the rule) therefore, the reference to that One commenter expressed concern definition of contaminants in today’s provision was removed in the that asbestos had been removed from final rule and it would be a contaminant definition. The agency proposed to the list due to the removal of ‘‘fine regardless of whether the fine mineral revise the definition as follows: mineral fibers’’ as a contaminant. The fibers group was removed or not. In ‘‘Established tire collection program commenter explained that asbestos is summary, the following 12 CAA section means a comprehensive collection commonly found in construction and 112(b) and section 129(a)(4) pollutants system or contractual arrangement that demolition debris and asbestos particles have been removed from the definition ensures scrap tires are not discarded in smoke are deadly. Excluding fine of contaminants: HCl, Cl2, HF, NOX, and are handled as valuable mineral fibers from regulation explicitly SO2, fine mineral fibers, PM, coke oven commodities through arrival at the ignores the possibility of such emissions, opacity, diazomethane, white combustion facility.’’ contamination in C&D debris, noted the phosphorus and titanium tetrachloride. The definition in today’s final rule commenter, and asbestos should be a includes the revisions to the definition regulated contaminant. c. Established Tire Collection Programs we proposed in December 2011. In addition, the agency is including in the Response: The EPA has issued a final The 40 CFR 241.2 definition for definition ‘‘tires that were not rule containing the language removing ‘‘established tire collection program,’’ as abandoned and were received from the constituents from the definition of established by the March 2011 general public at collection program contaminants as proposed, with one promulgation in the Federal Register, events.’’ This revision is being made change. The agency has removed was as follows: ‘‘Established tire ‘‘opacity’’ from the final definition of based on comments received on the collection program means a proposed rule as discussed below. contaminants as well. Similar to PM and comprehensive collection system that coke oven emissions, there is no Under today’s revised definition, ensures scrap tires are not discarded established tire collection programs practical way to measure opacity in and are handled as valuable NHSMs prior to combustion or in could also include a ‘‘contractual commodities in accordance with section arrangement.’’ If, for example, the state products made using NHSMs. In fact, 241.3(b)(2)(i) from the point of removal the EPA did not intend for opacity to be is sponsoring special events where they from the vehicle through arrival at the take tires back from the general public, included in the definition of combustion facility.’’ contaminant under the previous those tires would also be included. definition. A visual property of an In the December 2011, NHSM Thus, the definition in today’s final rule emissions stream, opacity is not even a proposed rule, the EPA proposed to is ‘‘Established tire collection program constituent, let alone a constituent that revise this definition (and the related means a comprehensive collection can be measured in NHSMs prior to criteria for non-waste tires now at 40 system or contractual arrangement that combustion or in products made using CFR 241.4(a)(1)) in order to account for ensures scrap tires are not discarded NHSMs. As such, removing it from the off-specification tires. The term ‘‘off- and are handled as valuable definition will provide clarity without specification tires’’ is intended to also commodities through arrival at the effecting any practical change to the include ‘‘factory scraps.’’ The off- combustion facility. This can include definition.34 specification tires are not removed from tires that were not abandoned and were The agency has not removed CO from vehicles and are handled under received from the general public at the definition of contaminants because, contractual arrangements which ensure collection program events.’’ contrary to comments that it is unlikely they are not discarded. The definition While the agency did receive to be found in any NHSM, it is likely to was modified to include ‘‘contractual comments on the specific proposed be present in gaseous NHSMs and is not arrangement’’ to provide that not only changes described above, a number of adequately measured elsewhere in the ‘‘collection systems,’’ but also commenters rephrased or restated ‘‘contaminants’’ definition. However, as contractual arrangements for tire previous arguments which conclude we discuss in the December 2011 collection would be appropriate. The that any tires burned for energy recovery proposed rule, CO is unlikely to be requirement for the tires to be removed are not wastes, even if previously found in solid or liquid NHSMs and from the vehicle was eliminated 36 since discarded. Conversely, one commenter EPA expects that persons can use it is not applicable to off-specification reiterated its previous arguments which process knowledge to justify not testing tires. The revised definition is sufficient conclude that all used tires are waste, for CO in these cases.35 to encompass the agency’s intent in even if burned for energy recovery. The agency has removed the fine describing these programs and Today’s rule is responding only to the mineral fibers group from the definition continues to ensure that these scrap specific proposed revisions to the of contaminants, as proposed, because tires are not discarded and are handled regulations and the requests for they are not expected to be found in as valuable commodities through arrival comment in the proposal. For the NHSMs. Fine mineral fibers, as at the combustion facility. Further, the response to other issues, refer to the regulated under CAA section 112(b) are addition to the new categorical non- record for the 2011 NHSM final rule (76 releases from the manufacturing and waste provision at 40 CFR 241.4(a)(1) FR 15456). Many of the commenters processing of non-combustible rock, eliminated the need for the previous who provided comments on tires glass or slag into mineral fibers and are scrap tire provision at 40 CFR intertwined the ‘‘established tire not produced during the combustion 241.3(b)(2)(i),37 (which has been collection program’’ definition issues process. Asbestos, on the other hand, has been set apart from the fine mineral 36 The related tire provision at 241.4(a)(1) allows (2) The following non-hazardous secondary for tires that are off-specification or are removed materials that have not been discarded and meet the fibers group in CAA section 112(b), and from vehicles. legitimacy criteria specified in paragraph (d)(1) of 37 The scrap tire provision in the 2011 NHSM this section when used in a combustion unit (by the 34 Neither Table 7 nor Table 8 in the December final rule is now removed and the section reserved generator or outside the control of the generator): 2011 proposed rule included opacity. See 76 FR in today’s final rule: ‘‘(b) The following non- (i) Scrap tires used in a combustion unit that are 80478–80480. hazardous secondary materials are not solid wastes removed from vehicles and managed under the 35 See 76 FR 80475. when combusted: oversight of established tire collection programs.’’

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with the related topic of the categorical fuel provided details on how discussion in the proposal. The first non-waste provision for scrap tires. For contaminant comparisons could be issue was that contaminant legitimacy a discussion of those comments, refer to made in practice. The proposal criterion determinations do not require the response to comments for the maintained the fundamental approach testing contaminant levels, in either the categorical non-waste provision for of the March 2011 final rule, but the NHSM or an appropriate traditional scrap tires (section III.D.3.a.). The EPA proposed criterion better reflected the fuel. Persons can use expert or process is not reopening its decision that these EPA’s intent to allow certain flexibilities knowledge to justify decisions to either scrap tires are not wastes. That decision, when making contaminant comparisons. rule out certain constituents or however, justifies a categorical First, the proposal replaced determine that the NHSM meets the exclusion where there is not a need to ‘‘contaminants’’ with the phrase contaminant legitimacy criterion. The make case-by-case determinations ‘‘contaminants or groups of second issue was that persons may use regarding discard in the first instance contaminants’’ to clarify that, when data from a group of similar traditional and the legitimacy criteria. deciding how to compare contaminants fuels for contaminant comparisons, Comment: Several commenters between NHSMs and traditional fuels, provided the unit could burn each mentioned that, in some cases, the persons do not have to make traditional fuel. The idea grows from the public individually takes tires to state- comparisons on a contaminant-by- ‘‘designed to burn’’ concept explained run tire collection program events. contaminant basis in all cases. When in the March 2011 final rule and These are tires that the general public technically reasonable, comparisons codified in today’s final rule, and it owns and were typically removed from may be made on a group of allows a person with a unit that can or their vehicle. These are not abandoned contaminants-by-group of contaminants does burn similar traditional fuels (e.g., tires. These collection events, in some basis. anthracite, lignite, bituminous and sub- cases, are held by the combustor under The December 2011 rule also bituminous coal) to group those the state’s environmental program proposed to codify language from the traditional fuels when making oversight. In those cases, the combustors preamble to the March 2011 final rule contaminant comparisons. enter into agreements with local clarifying that when selecting which The EPA believes that comments have communities to hold these events traditional fuel(s) a unit is designed to not changed the basis for making the during which local residents are burn, persons are not limited to the decisions to expressly allow grouping of allowed to bring tires to facilities to be traditional fuel the unit is currently contaminants, to interpret ‘‘designed to recycled, including used as alternative permitted to burn. Persons may choose burn’’ to mean can burn or does burn fuels. The scope of tire collection any traditional fuel the unit can burn or regardless of permit status, and to affirm programs also may allow the public to does burn, whether or not it is permitted that persons can use ranges and national take used tires which they may have to burn such fuel. surveys of traditional fuel data when stored in their garages, or elsewhere on In addition, the proposed regulations making contaminant comparisons their property, directly to a combustion included text confirming that, when between NHSMs and traditional fuels. facility—in many cases a cement kiln. comparing contaminant levels between Comments have also not changed the Under the EPA’s current definition of NHSMs and traditional fuels, persons agency’s basis for making the decisions tire collection programs, the are not limited to data from the specific that testing is not required and that commenters said it is not clear whether traditional fuel being replaced. National persons can group similar traditional these tires would qualify as those surveys of traditional fuel contaminant fuels for the purposes of contaminant collected under an ‘‘established tire levels are one example of another comparisons. Thus, the EPA is adopting collection program.’’ Commenters acceptable data source. Neither the the reasoning from the proposal and generally agreed that these tires are not March 2011 final rule nor the December revising the contaminant legitimacy abandoned and should be utilized as 2011 proposed rule required persons to criterion for NHSMs used as a fuel to non-waste fuels without processing. compare contaminants in their NHSM to incorporate these concepts. Response: The EPA agrees with the contaminants in the specific traditional The EPA has decided, however, to commenters that tires that have not been fuel source they burn (or would make one modification to the proposed discarded and are collected directly otherwise burn). As an example, the contaminant legitimacy criterion based from the public at tire collection events proposal noted that persons who would on comments received and information are intended to qualify for the 40 CFR otherwise burn coal may use any as- in the rulemaking record. The final 241.4(a)(1) requirement to be ‘‘managed burned coal available in coal markets in criterion issued today includes under the oversight of established tire making a comparison between the additional language clarifying the collection programs.’’ The agency agrees contaminants in their NHSM and the appropriate use of ranges when making that these tires are not abandoned and contaminants in coal—they are not contaminant comparisons between when collected under established tire limited to coal from a specific coal NHSMs and traditional fuels. To use the collection program events, they are supplier they have used in the past or full range of contaminant values in considered to be non-waste fuels, just as currently use. traditional fuels, persons should also the other tires handled by established Finally, the proposed regulations account for the variability in NHSM tire collection programs are non-waste. included text confirming that, when contaminant levels. To make this point clear, the EPA has comparing contaminant levels between Additional details and rationale for modified the regulatory language. Please NHSMs and traditional fuels, persons the proposed revisions concerning the refer to the Response to Comment are not limited to comparing average grouping of contaminants, the meaning document for more details on these concentrations. Traditional fuel of designed to burn, and the use of collection events and the responses. contaminant levels can vary ranges and traditional fuel data in considerably and the full range of making contaminant comparisons are 2. Contaminant Legitimacy Criterion for contaminant values may be used. discussed in section III.D.2.b, section NHSMs Used as Fuels Two other issues arose prior to the III.D.2.c, and section III.D.2.d below. Under the December 2011 proposed December 2011 proposed rule that, Additional reasoning for keeping the rule, revisions to the contaminant while not leading to specific regulatory rule provisions as proposed and for any legitimacy criterion for NHSMs used as changes in the proposal, still merited a modifications to the proposed language

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are described in the responses to contaminant legitimacy criterion revised legitimacy criterion is comments included in these sections. because these changes more accurately embedded in the self-implementing reflect the EPA’s intent under the March options outlined in 40 CFR 241.3(b)(1) a. General Comments on the Revised 2011 final rule. The agency maintains for use within the control of the Contaminant Legitimacy Criterion that these concepts are reasonable and generator and 40 CFR 241.3(b)(4) for The EPA is not responding to issues provide a necessary degree of certainty NHSMs that are processed and then that the agency decided in the March for persons seeking to comply with the used in a combustion unit. The revised 2011 rule and has not reopened for rule. This is explained in more detail in legitimacy criterion is also embedded in comment. Specifically, the agency has sections III.D.2.b (groups of the optional EPA petition process previously discussed and did not solicit contaminants), III.D.2.c (meaning of outlined in 40 CFR 241.3(c). The revised comments in this rule on why the designed to burn), and III.D.2.d legitimacy criterion is also referenced as concept of legitimacy is important in (allowable contaminant comparisons) of a factor to be considered in the determining whether a secondary this preamble. categorical non-waste determination material is genuinely recycled or is, in At the same time, comments from process outlined in 40 CFR 241.4. fact, discarded.38 The agency has also both industry and environmental groups Comment: Several commenters previously discussed and did not solicit have highlighted, in the agency’s expressed concern that the proposed comments in this rule on why opinion, a need for additional clarity in revisions to the contaminant legitimacy contaminant comparisons to traditional the regulatory text on the appropriate criterion, although an improvement over fuels are an appropriate and mandatory use of ranges when making contaminant the 2011 Final NHSM Rule, may not factor in determining legitimacy for comparisons between NHSMs and provide the regulated community with NHSMs used as fuels in combustion traditional fuels. Accordingly, the EPA enough information to be confident in units.39 The agency has also previously has made a minor adjustment to the their compliance status. Two discussed and did not solicit comments criterion to ensure that ranges are not commenters noted that the EPA has in this rule on why the ‘‘comparable to used inappropriately in contaminant overlooked the analytical complexities or lower than’’ standard is more comparisons (i.e., the highest traditional inherent in the contaminant legitimacy appropriate than the ‘‘not significantly fuel contaminant values should not be criterion and the many opportunities it higher than’’ standard.40 The agency has compared to average NHSM creates for disagreement between also previously discussed that the contaminant values). See section facility operators and regional and state NHSM Rule differs from the DSW Rule III.D.2.d of this preamble for a more regulators. One of these commenters in that it is tailored specifically for detailed description of this specific asked the EPA to both define the term application to NHSMs used in change to the contaminant legitimacy ‘comparable’ and clarify sampling and combustion units.41 criterion. analytical methodologies to be used Comment: Industry commenters The agency disagrees with state when measuring contaminant levels. overwhelmingly supported the concerns that the NHSM rule will Other commenters advised the EPA to proposed revisions to the contaminant weaken the states’ permitting increase predictability as much as legitimacy criterion, stating that the authorities. State permitting authorities possible by developing a disciplined revisions would help provide regulatory must still approve permit changes and process for making contaminant certainty and give the regulated this final rule does not affect discretion comparisons and providing real time community more confidence in their of the permitting authorities in acting on transparency for such decisions. self-determinations. requests for permit modifications. The Similarly, two commenters expressed Environmental groups, on the other agency also disagrees with state concern that even after a source makes hand, expressed concern that the concerns that the NHSM rule will create a fuel determination, the EPA could take combination of flexibilities present in an incentive for combustors to burn a different view of the NHSMs and the proposed revisions to the dirtier traditional fuels. The EPA conclude that they were solid wastes. contaminant legitimacy criterion will understands how restricting The risk sources face is noncompliance allow facilities to compare contaminant contaminant comparisons to traditional with the CAA and these commenters levels in C&D debris and other wood fuels the unit currently burns could contended that the issue is too critical waste to the highest contaminant levels provide an incentive for the facility to for the EPA to leave the contaminant found in coal, even if the facility is not burn traditional fuel with high legitimacy criterion so vague. Over time, permitted to burn coal. They believed contaminant levels. When facilities do as the EPA develops a record for that this should not be permitted and not actually have to burn that traditional decisions (particularly comparable argued that C&D wood should not fuel to make comparisons, however, that contaminant determinations), one of contain contaminant levels higher than incentive is effectively removed. these commenters urged the EPA to found on average in virgin biomass. Comment: One commenter requested establish a database and immediately State comments were mixed, with one that the proposed revisions to the post determinations for other sources to commenter supporting the proposed contaminant legitimacy criterion be review. revisions and another commenter added to each option for demonstrating Other commenters supported the expressing concern that the revisions that NHSMs are non-wastes when used proposed revisions to the contaminant would weaken the states’ permitting in combustion units, whether it is the legitimacy criterion and indicated that authorities and create an incentive for on-site documentation, the EPA petition they provided sufficient clarification. combustors to burn dirtier traditional process or the categorical non-waste One commenter noted that changes to fuels. determination process proposed in 40 the language of the criterion and the Response: The EPA has decided to CFR 241.4. additional clarification provided in the retain the concepts proposed to the Response: Revisions to the preamble to the December 2011 contaminant legitimacy criterion proposed rule provide key additional 38 See 75 FR 31870. codified today in 40 CFR 241.3(d)(1) detail on making contaminant 39 See 75 FR 31871–31872. See also, 76 FR 15524–15525. apply to all options for demonstrating comparisons and allow additional 40 See 75 FR 31872. See also, 76 FR 15523. that a NHSM is not a solid waste when flexibility where appropriate. The same 41 See 75 FR 31870. used as a fuel in a combustion unit. The commenter urged the EPA to maintain

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that flexibility if the agency develops several examples.47 While the agency clarify that groups of contaminants additional guidance on making will consider future guidance on could be evaluated in determining contaminant comparisons in the future. contaminant comparisons, it has whether a NHSM meets the contaminant Response: The EPA has retained the determined that no one approach is legitimacy criterion. approach included in the proposed rule appropriate for every legitimacy In particular, the proposed rule noted that provides information on how determination given the variety of that groups of contaminants in NHSMs contaminant comparisons can be made traditional fuels, NHSMs and could be compared to similar groups in and the agency will continue to make its combustion units that currently exist traditional fuels where the grouped traditional fuel data and legitimacy and will likely increase in the future. contaminants shared physical and determinations transparent through the Comment: One commenter noted that chemical properties that influence their EPA Web site.42 both the March 2011 NHSM final rule behavior in the combustion unit prior to The agency recognizes the need for and the proposal implicitly place the the point where emissions occur. regulatory certainty, a need that has burden on the combustion facility to Volatility, the presence of specific been addressed by revisions to the determine if a fuel derived from NHSMs elements and compound structure were definition of contaminants and the meets the legitimacy criteria. In the three such properties identified in the contaminant legitimacy criterion in utility industry, the commenter proposal and one approach to grouping today’s final rule. Contaminants have explained, it is common practice for contaminants was shown that included been specifically listed, additional utilities to rely on fuel marketers to groups for TOX, nitrogenated HAP, clarity on NHSMs/traditional fuel establish and verify fuel quality, and the VOCs, SVOCs, dioxins and furans, comparisons has been provided and regulatory burden on utilities PCBs, PAHs and radionuclides. The several comparison methodologies have combusting such secondary materials as agency also noted that persons may been provided in the preamble as fuels could be reduced if the EPA consider other groupings that they can examples that could be used by the clarified the circumstances under which show are technically reasonable. regulated community. Comments from a facility would be entitled to rely on Grouping of contaminants is a the regulated community have been the fuel quality representations of its standard practice often employed by the supportive both of these changes and of suppliers. The commenter suggested agency as it develops regulations. In the agency’s efforts to update traditional that the EPA clarify that a utility may fact, the monitoring standards included fuel data that can be used for rely in good faith on the representations in the CAA sections 112 and 129 contaminant comparisons.43 In of its suppliers that NHSMs meet the regulations also utilize the grouping addition, a number of interpretative codified legitimacy criteria, or, concept and they apply to the same letters have been written that address alternatively, that utilities be required combustion units impacted by the specific fact situations as presented by only to periodically test the quality of NHSM rule (i.e., industrial, commercial a specific facility and these letters have NHSM-derived fuels obtained from and institutional boilers and process been posted on the EPA’s Web site.44 third parties to rely on their suppliers’ heaters and CISWI units). For example, These letters serve as examples of representations. • Volatile hydrocarbons and semi- acceptable ways to demonstrate Response: The EPA notes that while volatile hydrocarbons can both be legitimacy. fuel suppliers may provide their expected to result from incomplete The EPA must balance the need for customers with documentation combustion; therefore, the emission regulatory certainty, however, with the supporting a legitimacy determination, standards promulgated under the CAA need for flexibility, which many persons who burn NHSMs are regulations are grouped into one commenters also believe is important. ultimately responsible for the materials category: CO.49 As the agency has previously discussed, burned at their units. As stated in the • Halogenated organics are expected the legitimacy criteria must be flexible proposed rule, however, the agency to contribute to emissions of dioxin and enough to account for future changes in adopts as its decision for this final rule acid gases (HCl and HF); therefore, the commodities, technologies, markets and that initial assessments would not need emission standards promulgated under fuel prices.45 Previous comments have to be repeated as long as the facility the CAA are grouped into two stressed the preference for a qualitative continues to operate in the same manner categories: D/F and HCl.50 approach, and the agency has agreed, and use the same type of NHSM as • Nitrogenated compounds are noting that numerical specifications when the original assessment was expected to contribute to emissions of may be impractical due to the made.48 NOX; therefore, the emission standards multiplicity of fuels and ingredients.46 promulgated under the CAA are b. Grouping of Contaminants 51 The agency has also previously grouped into one category: NOX. discussed that a numerical definition of The December 2011 proposed revision In addition, a number of the ‘comparable’ would be impractical to the contaminant legitimacy criterion seemingly ‘‘individual’’ pollutants listed given differences in the typical for NHSMs used as a fuel began with the in sections 112 and 129 of the CAA are concentration levels of various following sentence: ‘‘The non-hazardous actually classes of structurally-related contaminants, choosing instead to offer secondary material must contain compounds (e.g, PCBs, POM, D/F, contaminants or groups of contaminants cyanide compounds, cresols, glycol 42 The EPA maintains a NHSM Web page with at levels comparable in concentration to ethers, radionuclides, xylenes, antimony current information on contaminant levels in or lower than those in traditional fuel(s) compounds, arsenic compounds, traditional fuels, examples of legitimacy determinations and other information at http:// which the combustion unit is designed beryllium compounds and cadmium www.epa.gov/epawaste/nonhaz/define/index. to burn.’’ The phrase ‘or groups of compounds). 43 Contaminant Concentrations in Traditional contaminants’ was not present in the Fuels: Tables for Comparison, November 29, 2011, language from the March 2011 NHSM 49 Area Source Boilers NESHAP, Major Source can be found at http://www.epa.gov/epawaste/ Final Rule but was included in the Boilers NESHAP, and Commercial and Industrial nonhaz/define/index. Solid Waste Incinerators NESHAP. 44 See NHSM rule Web site http://www.epa.gov/ December 2011 NHSM Proposed Rule to 50 Major Source Boilers NESHAP and Commercial epawaste/nonhaz/define/index.htm. and Industrial Solid Waste Incinerators NESHAP. 45 See 75 FR 31870. 47 See 76 FR 15524 and 15542. 51 Commercial and Industrial Solid Waste 46 See 75 FR 31871. 48 See 76 FR 80481. Incinerators: NESHAP.

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All comments discussing the agency’s elemental contaminants, asbestos, CO contains different elements. Finally, proposal to expressly allow the and phosphine.52 each metal is already a group of any grouping of contaminants supported the Comment: The ability to group metal compound containing the particular agency’s position. Thus, the EPA is contaminants was suggested by several element, encompassing a wide array of adopting the language from the proposal commenters. One commenter held that compound structures. In the absence of and revising the contaminant legitimacy all 11 metals should be specifically other suggested grouping criteria or criterion for NHSM used as a fuel to included as one group. Another information, the EPA does not consider allow contaminants to be compared on commenter noted that with the total metals to be an appropriate group. a contaminant-by-contaminant basis or, exception of Hg, all metals should be Comment: One commenter provided a where reasonable, on a group of grouped. Yet another commenter numerical example of VOC contaminant contaminants-by-group of contaminants suggested that metals could be grouped levels in fuel oils to illustrate the basis. Any additional reasoning for into a volatile metals group and a non- importance of grouping. The commenter keeping the revision as proposed, volatile metals group. cited the traditional fuel tables provided without modification, is described in Response: First, we would note that on the EPA Web site, stating that the responses to comments below. the agency is not limiting groups to the toluene and xylenes are present in fuel specific approach suggested in the Comment: In general, comments oils at concentrations up to 380 ppm proposed rule. The tables in the and 3,100 ppm, respectively. If a NHSM overwhelmingly supported the ability to proposed rule suggest, but do not limit group contaminants when making had the concentrations reversed, persons to, an approach, including explained the commenter (380 ppm contaminant comparisons in accordance groups for TOX, nitrogenated HAPs, with the legitimacy criteria. xylene and 3,100 ppm toluene), the VOCs, SVOCs, dioxins/furans, PCBs, ability to group VOCs would then allow Commenters stated that codification of PAHs and radionuclides, with other this concept would provide regulatory the NHSM to meet the contaminant contaminants left to be evaluated on an legitimacy criterion. The commenter certainty and allow for more meaningful individual contaminant-by-contaminant comparisons, similar to the manner in reasoned that this is appropriate basis. Flexibility exists for persons to because both toluene and xylenes are which the EPA measures emissions at consider other appropriate groups that combustion units. Commenters noted beneficial components of fuel. they can show are technically Response: The EPA disagrees with that the ability to group contaminants reasonable, with additional text in the will facilitate compliance because most this interpretation of the grouping proposal stating that other groups concept. Unless concentration data for a existing test methods, including the should share physical and chemical EPA methods, call for the grouping of group of contaminants (e.g., VOCs) properties that influence behavior in the come from the same fuel source, adding analytes. Commenters believed that the combustion unit prior to the point grouping concept is an appropriate together the concentrations of where emissions occur. Volatility, the individual constituents (e.g., toluene mechanism to recognize the variability presence of specific elements and in contaminant levels inherent in fuels. and xylene) within that group may yield compound structure are three such a total concentration beyond what Commenters also appreciated the properties.53 examples of appropriate contaminant would be considered a normal part of a However, we do not consider the legitimate fuel. Using the example cited groups provided in the proposed rule grouping of total metals to be along with the ability to compare other by the commenters, some fuel oils have appropriate. Specifically, metals vary been found to have up to 380 ppm technically reasonable groups (76 FR across all three parameters—volatility, 80477–80480). toluene and other fuel oils have been the presence of specific elements and found to have up to 3,100 ppm xylene. Two commenters stated that each compound structure—that were Because the toluene and xylene mention of the word ‘‘contaminants’’ discussed as appropriate to consider concentrations were taken from should be changed to ‘‘contaminants or when constructing contaminant groups. different fuel oils, however, this does groups of contaminants’’ in the First, many factors influence metal not prove that a single fuel oil in regulatory text to further clarify that a volatility in combustion units, and to existence actually has VOC levels as comparison to groups of contaminants is the extent that trends in metal volatility high as 3,480 ppm (380 + 3,100). intended. have been recognized, a wide disparity The agency notes that VOC levels Response: The EPA has retained the exists between metals. Mercury, as one higher than 3,480 ppm, have been found language specifically allowing grouping commenter noted, is highly volatile, in fuel oil—concentrations of one VOC in the contaminant legitimacy criterion more so than any other metals listed in alone (hexane) have been found as high for NHSMs used as a fuel. The EPA the contaminants definition. Metals can as 10,000 ppm—and the point of this adopts the reasoning in the December be grouped into volatile, semi-volatile discussion is to clarify a methodology 2011 rule as its final reasoning, as and low-volatile categories, but it is rather than a number for acceptable further supported with reasoning important to note that these distinctions VOC levels in NHSMs.56 discussed in the comment responses can vary based on design differences in We would also note that while the below. While the EPA has retained the combustion units, operating agency considers VOCs to be an language allowing the grouping of temperatures, the physical form and appropriate contaminant group to use species of the metal and the presence of when making contaminant comparisons, contaminants, the agency does not 54 55 consider it necessary to change every chlorine. Second, each metal clearly it does not base that decision on instance of ‘‘contaminant levels’’ and 52 See 76 FR 80478, Tables 7 and 8. ‘‘contaminants’’ to ‘‘contaminants or 56 Contaminant Concentrations in Traditional 53 See 76 FR 80477. Fuels: Tables for Comparison, November 29, 2011 groups of contaminants’’ in order to 54 EPA. 2001. ‘‘Risk Burn Guidance for Hazardous can be found at http://www.epa.gov/epawaste/ make it sufficiently clear that Waste Combustion Facilities.’’ EPA530–R–01–001. nonhaz/define/index. EPA intends to update this contaminant grouping is allowed. The July. document as additional data becomes available, and agency also notes that not all 55 Clarke, L.B. and L.L. Sloss, 1992. ‘‘Trace if persons have data measuring traditional fuels for Elements—Emissions from Coal Combustion and groups of VOCs, or for other contaminant groups, contaminants are necessarily intended Gasification.’’ IEACR/49. IEA Coal Research, they are encouraged to provide the agency with to be grouped, including individual London. July. such data.

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whether or not toluene, xylenes and Because most combustion units can When making such a waste or non- other VOCs are ‘‘beneficial components burn different—but related—traditional waste determination, the NHSM rule of fuel.’’ The decision that toluene, fuels, the agency discussed in the cannot always predict what fuel would xylene and other VOCs, which the proposal that broad groups of similar otherwise be burned (multiple options agency notes are pollutants listed in traditional fuels may be used when may exist). Accordingly, the rule allows CAA section 112(b), are an appropriate comparing contaminants. The most contaminant comparisons to be made to group is based on the fact that they common traditional fuel categories any traditional fuel the unit could burn. share similar physical and chemical burned at major source boilers are coal, The Boiler MACT or CISWI rule must properties that influence their behavior wood, oil and natural gas, as evidenced then determine how to regulate in the combustion unit prior to the point by data submitted to the EPA’s emissions from the unit, by which point where emissions occur. OAQPS.58 59 it is clear what fuel is actually being To further clarify the impact of the burned. Accordingly, these rules can c. Meaning of Designed to Burn proposed ‘‘designed to burn’’ language and do establish subcategories of units, The December 2011 proposed revision on contaminant comparisons, potential each with different emissions standards. to the contaminant legitimacy criterion categories for coal, wood and oil were The EPA has considered the for NHSMs used as a fuel included the further described in the proposal. A coal comments received, as explained below, following statement: ‘‘In determining group was proposed that could include but has not changed the basis for its which traditional fuel(s) a unit is data on anthracite, lignite, bituminous interpretation of the ‘‘designed to burn’’ designed to burn, persons can choose a and sub-bituminous coal. A wood or concept. Thus, the EPA is adopting the traditional fuel that can be or is burned biomass group was proposed that could language from the proposal and revising in the particular type of boiler, whether include data on unadulterated lumber, the contaminant legitimacy criterion for or not the combustion unit is permitted timber, bark, biomass and hogged fuel. NHSMs used as a fuel to allow persons to burn that traditional fuel.’’ The idea An oil group was proposed that could making contaminant comparisons to that ‘‘designed to burn’’ means ‘‘can include data on fuel oils 1–6, diesel choose a traditional fuel that can be or burn or does burn’’ was included in fuel, kerosene and other petroleum is burned in the particular type of preamble text to the March 2011 final based oils.60 In cases where a unit can boiler, whether or not the combustion rule. The December 2011 rule proposed burn traditional fuels from several unit is permitted to burn that traditional to include this concept, which is only categories, such as a boiler that can burn fuel. Any additional reasoning for applied under the NHSM rule to aid in coal or biomass, the proposal noted that keeping the revision as proposed, the selection of appropriate traditional contaminant comparisons could be without modification, is described in fuel(s) for contaminant comparisons, in made using data from either fuel the responses to comments below. regulatory language. category. Comment: Industry commenters The ability to compare contaminants generally supported the agency’s The March 2011 final rule explained in a NHSM, under the NHSM rule, to proposal to codify the previously stated that in determining which traditional contaminants in any traditional fuel that meaning of ‘‘designed to burn’’ within fuel(s) the owner or operator of the could be burned does not change the the contaminant legitimacy criterion for boiler unit would make a comparison to fact that once burning occurs, emissions NSHMs used as fuels. These with respect to contaminant levels, the standards are determined under the commenters welcomed the regulatory agency would allow any traditional Boiler MACT or CISWI rule by the certainty provided by the revision and fuel(s) that can be or is burned in the particular fuel (or fuel blend) that is described it as a practical and particular type of boiler. The agency burned. Whether each rule focuses on appropriate recognition that some units reasoned that this approach was the what ‘could be burned’ or on what ‘is can burn multiple traditional fuels. most appropriate since the NHSM burned’ is determined by the rule’s Environmental groups, on the other would be replacing the use of particular purpose and the order in which hand, expressed concern that the type(s) of fuel that could otherwise be proposed definition of designed to burn 57 decisions must be made. Together, these burned. factors explain why the NHSM, Boiler would allow contaminants in C&D wood The December 2011 proposal further MACT, and CISWI rules take different to be compared to those in coal instead explained that contaminants are approaches to account for individual of virgin wood. compared between NHSMs and combustion units that burn multiple One state commenter also expressed traditional fuels to assist in making a fuels. concern that allowing comparisons to determination whether or not the NHSM Specifically, the NHSM rule must first any fuel the unit could burn, including is being discarded when combusted, not determine which NHSMs can be burned fuels they are not permitted to burn, to regulate which traditional fuel a in CAA section 112 units (i.e., boilers) would weaken the states’ permitting combustor should choose to burn. For and which can only be burned in CAA authorities and create an incentive for the purposes of making a discard section 129 units (i.e., incinerators). combustors to burn dirtier traditional determination, the proposal reasoned fuels so that they could compare that differentiating between ‘‘can burn’’ 58 EPA, Office of Air Quality Planning and NHSMs to fuels with higher and ‘‘does burn’’ was not relevant. Standards (OAQPS), Emissions Database for Boilers contaminant levels. An industry The agency did note in the proposed and Process Heaters Containing Stack Test, CEM & Fuel Analysis Data Reported Under ICR No. 2286.01 commenter also mentioned that such an rule, however, that for a unit to be able and ICR No. 2286.03 (Version 7). December 2011. approach would reward facilities that to burn a traditional fuel, it would need http://www.epa.gov/ttn/atw/boiler/boilerpg.html# burn dirtier fuel and suggested that the an appropriate feed mechanism (e.g., a TECH. agency remove the entire ‘‘designed to way to load solid fuel of a particular 59 The fuel analysis information in this OAQPS database is one example of a ‘‘national survey’’ of burn’’ concept from the rule. size into the unit) and the ability to traditional fuel information, as referenced in the Response: Based on a review of the adjust physical parameters to ensure final contaminant legitimacy criterion issued today comments, the EPA has retained the spatial mixing and flame stability per at § 241.3(d)(1)(iii). proposed revision to the contaminant unit specifications. 60 EPA has determined that an oil group should legitimacy criterion for NHSMs used as not include unrefined crude oil or gasoline, as neither is typically burned in combustion units fuels clarifying that, for the purpose of 57 See 76 FR 15542. subject to the CAA sections 112 or 129 standards. determining traditional fuel(s) to which

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a NHSM may be compared, the meaning levels. When facilities do not actually mixed and keep flame temperatures of ‘‘designed to burn’’ may be broadly have to burn that traditional fuel to within unit specifications, to be able to interpreted to include any traditional make comparisons, that incentive is burn a traditional fuel.61 Two fuel that could be burned, regardless of effectively removed. commenters opposed the agency’s facility permit status. The agency Comment: One commenter asked the interpretation of what it means to be disagrees that this interpretation of agency to specifically acknowledge that able to burn a traditional fuel in a ‘‘designed to burn’’ would incentivize certain categories of boilers are designed combustion unit, stating that the agency the burning of dirtier fuels or weaken to burn a variety of fuels, noting that provides no explanation of why feed the states’ permitting authorities. stoker boilers, fluidized bed combustors mechanisms are relevant to whether or The EPA finds that allowing and boilers with suspension burners, in not a unit can burn a particular fuel. combustors to compare NHSMs to any particular, should be on such a list. Both commenters also noted that when traditional fuel a unit can or does burn Response: The agency has decided not NHSMs are used as a fuel in combustion is both practical and appropriate under to specifically list which combustion units, the focus on what a unit is the statutory definition of solid waste. units are designed to burn which fuels ‘‘designed to burn’’ in the first place is Although not all combustion units can for two reasons. First, the owner or irrelevant to whether discard is burn multiple traditional fuels, some operator of a combustion unit has a occurring. Another commenter units can and, indeed, do rely on better understanding than the agency explained that the same exact material different fuel types at different times does of what that particular unit is could then be a solid waste in one case based on availability of fuel supplies, designed to burn. Second, the agency is and a fuel in another case, depending on market conditions, power demands and concerned that creating such a list will who is using the material. other factors. Under these limit the flexibility of combustors with A third commenter supported the circumstances, it would be arbitrary to other types of units. agency’s interpretation of what ‘can restrict the combustion for energy Comment: One commenter noted that burn’ means, stating that the fate and recovery of NHSMs with contaminant if the EPA considers it inappropriate to emissions of a contaminant, whether it levels comparable to or lower than that compare liquid fuels to solid fuels, the is contained in a traditional fuel or a of one traditional fuel the unit could agency offers no justification for its material being considered for choose to burn solely because position. The commenter argued that legitimacy, are as dependent on the contaminant levels are higher than that liquid to solid comparisons should be design of the combustion unit as they of a second traditional fuel the unit allowed because most cement kilns and are on the fuel matrix. The commenter could also choose to burn if fuel many other industrial furnaces have the explained further that units should be supplies, market conditions, power capacity to burn either solid or liquid considered able to burn several types of demands, or other factors change. Such fuels. The commenter described the fuels as long as each type is within the an approach would be impracticable December 2011 proposed rule as design criteria of the feed system, the and not consistent with the agency’s ambiguous with regard to this issue and combustion chamber and any intent. It would also be inconsistent recommended that if a combustion unit downstream pollution control device. with the concept of discard, since a is designed to burn both a liquid fuel Response: The EPA disagrees with facility burning a NHSM with the same and a solid fuel, then the liquid to solid those commenters questioning the contaminants as another fuel it could comparison should be ‘‘appropriate.’’ relevance of what fuels combustion also be burning should not be Response: EPA agrees with the units are designed to burn in the context considered to discard that NHSM based commenter that if a unit can burn both of the legitimacy criteria. If a NHSM on its contaminant levels. a liquid traditional fuel and a solid does not contain contaminants at levels The agency has also determined that traditional fuel, then comparison of an that are comparable to or lower than restricting comparisons to traditional NHSM to either fuel would be those found in any traditional fuel that fuels the unit is permitted to burn is appropriate. The revised contaminant a combustion unit could burn, then it unnecessary. The fact that a facility is legitimacy criterion clarifies how the follows that discard could be occurring not currently permitted to burn a ‘‘designed to burn’’ concept may be if the NHSM were combusted. Whether particular traditional fuel does not mean interpreted for the purposes of contaminants in these cases would be it could not be permitted to burn that determining traditional fuel(s) to which destroyed or discarded through releases traditional fuel in the future. For this a NHSM may be compared, and the to the air, they could not be considered reason, we do not believe it is Agency has determined that this a normal part of a legitimate fuel and reasonable to limit the comparison to revision is sufficient to allow the NHSM would be considered a solid permitted traditional fuels. appropriate comparisons to be made waste when used as a fuel in that Furthermore, such a restriction could between solid NHSMs and liquid combustion unit.62 have the unintended consequence of traditional fuels, and vice versa. The The reason we analyze what a unit is combustion facilities across the country agency does not expect these designed to burn is to decide the seeking permit modifications solely to circumstances to hold true for all traditional fuel(s) to which facilitate contaminant comparisons for combustion units, however, and contaminants should be compared. This this rule. State permitting authorities reiterates that this would only be comparison is then used as an aid to must still approve permit changes and appropriate when the unit can in fact decide whether the NHSM is being this final rule does not affect the burn multiple traditional fuels used to legitimately used as a fuel or whether discretion of the permitting authorities make such comparisons. excess contaminants show that the in acting on requests for permit Comment: Several industry burning is waste treatment. If a facility modifications. commenters addressed the topic of what compared contaminants to a traditional In addition, the EPA has determined it means to be able to burn a traditional fuel it cannot burn and that fuel is that restricting contaminant fuel in a combustion unit. The preamble highly contaminated, a facility would comparisons to traditional fuels the unit to the recent proposed rule noted that then be able to burn excessive levels of currently burns could provide an combustion units would need an incentive for the facility to burn appropriate feed mechanism, as well as 61 See 76 FR 80481. traditional fuel with high contaminant the ability to ensure the fuel is well 62 See 76 FR 15523.

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waste components in NHSMs as a traditional fuel. If it does not meet the burned in certain units (see 40 CFR means of discard. Regardless of any fuel specifications (i.e., it is ‘‘off-spec’’ oil), 279.61(a)).63 value in the material, it would be a it is a solid waste under the 2011 NHSM Comment: Commenters argue that the waste. final rule.’’ 76 FR 80481, fn. 44. Some EPA has not adequately addressed how Once this concept is established, commenters argued that off-spec used units designed to burn only NHSMs are certain factors are relevant to how we oil fuel, however, could satisfy all of to comply with the contaminant decide what a facility is designed to EPA’s legitimacy criteria, including a legitimacy criterion. The commenters burn. The ability to burn a fuel in a contaminant comparison with coal, a explained that, under the rule structure combustion unit does have a basic set of traditional fuel. Thus, if a combustion as proposed, a NHSM may be classified requirements, the most basic of which is unit is ‘‘designed to burn’’ both coal and as a waste simply due to a lack of a being able to get the material into the oil, the facility should be able to use traditional fuel for comparison combustion unit. The agency reaffirms coal as the traditional fuel for the purposes. Comments acknowledge that in today’s final rule its interpretation purposes of determining whether the the agency discussed the issue in the from the proposal that to be able to burn contaminants are comparable—even preamble to the proposed rule but the NHSMs, a combustion unit should also when the NHSM at issue is off-spec commenters disagree that the discussion be able to ensure the material is well used oil, as defined in 40 CFR 279.11. provided any solution. Finally, mixed and maintain temperatures Response: The Agency agrees with the commenters specifically requested that within unit specifications. Without commenter that contaminants in off- the EPA acknowledge the fact that a these basic limits, there would be no spec used oil burned for energy recovery combustor designed for a particular point in distinguishing between fuels a in facilities that are designed to burn NHSM fuel is dispositive that the unit is or is not ‘‘designed to burn,’’ and coal may be compared to coal for NHSM is being legitimately burned for every combustion unit would be purposes of determining whether the energy recovery. considered ‘‘designed to burn’’ any off-spec used oil is a waste or non-waste Response: The EPA disagrees with the combustible material. Clearly, that is not product fuel. Accordingly, for purposes assertion that the agency has failed to the agency’s intent. As illustrated by of waste/non-waste determinations, coal provide a solution for units designed one of the commenters, when a unit or oil, including on-spec used oil can be only to burn NHSMs. The EPA also cannot burn a fuel according to its own used as the traditional fuel identified for disagrees with the assertion made by design specifications, excess air comparison of contaminants to meet the commenters that the fact that a pollutants form and are likely to be legitimacy criterion for units designed combustor has designed a combustion discarded as emissions. Thus, the to burn both fuels. Some combustion unit for a particular NHSM fuel is agency acknowledges that whether or units are designed to burn multiple dispositive that the NHSM is being not a NHSM is a waste may depend on fuels, such as both coal and oil, legitimately burned for energy recovery. the unit burning the material. including on-spec used oil. Under these The EPA acknowledges and is aware Comment: One commenter asked for circumstances, the Agency agrees that of units built specifically to burn clarification on the issue of unit the rules allow the comparison of NHSMs. One example is facilities built modifications. If a boiler hypothetically contaminant levels to either traditional to burn resinated wood. The EPA notes could be modified in any way to fuel. That is, to be designated as a non- that units built to burn such NHSMs are combust a different traditional fuel, the waste, the off-spec used oil contaminant likely to be able to burn similar commenter noted, then a comparison to levels must be comparable to or lower traditional fuels. Using the example of that fuel should be permissible to than coal when coal is the traditional units built to burn resinated wood, the demonstrate that the NHSM is not a fuel used for comparison. EPA considers it reasonable to assume waste. EPA no longer finds, as stated in that these units could also burn clean Response: The EPA disagrees with Footnote 44 of the proposed rule, that wood and, therefore, could make this comment. As long as the off-spec used oil is always a waste for comparisons to that traditional fuel. The modification remains hypothetical in facilities that are designed to burn coal. agency also notes that it is not aware of nature, it stands to reason that the unit Off-spec used oil continues to be a any units—and commenters have not cannot yet burn the additional waste, however, for facilities that are not identified any such units—that can burn traditional fuel and the only reason it is designed to burn coal because off-spec only NHSMs. comparing a NHSM to the dirtier fuel is used oil contains contaminant levels The EPA has nonetheless provided to allow more waste input into the that are not comparable to on-spec used what it considers to be a reasonable combustion unit. However, if the unit is oil. EPA also notes that in the preamble solution. As explained in the preamble actually modified to accept additional to the March 2011 rule (p. 15506), the to the proposed rule, the EPA advises types of traditional fuels, then the Agency specifically rejected the combustors faced with such a situation owner or operator of the combustion comparison of off-specification used oil to compare solid NHSMs to solid unit can consider those traditional fuels contaminants to coal. That discussion, traditional fuels, such as coal or in evaluating the NHSM for the however, was in the context of a general biomass, liquid NHSMs to liquid contaminant legitimacy criterion. In this contaminant comparison for units that situation, such behavior shows that the burn only fuel oil. Coal may not be the 63 Off-specification used oil can only be burned combustor is serious about burning the comparison material for all off- in the following types of units: (1) Industrial furnaces, as defined in 40 CFR 260.10; (2) the other fuel and is willing to make the specification used oil, but only for those following boilers, as defined in 40 CFR 260.10— investment so that it can be burned facilities that are designed to burn coal industrial boilers located on the site of a facility properly instead of simply trying to gain as provided in the definition of this engaged in a manufacturing process where rule. Finally, we want to make clear that substances are transformed into new products, comparison to a dirtier material. including the component parts of products, by Comment: In the proposed rule, EPA EPA has not modified the part 279 mechanical or chemical processes, utility boilers specifically addressed used oil stating: regulations for management of used oil, used to produce electric power, steam, heated or ‘‘Used oil is a special case and does not and thus, burning of off-spec used oil cooled air, or other gases or fluids for sale, and used oil fired space heaters provided that the burner need to undergo the contaminant for energy recovery is still subject to meets the provisions of 40 CFR 279.23; and (3) comparison. If it meets the those rules, including the requirement hazardous waste incinerators subject to regulation specifications in 40 CFR 279.11, it is a that off-spec used oil can only be under subpart O of 40 CFR parts 264 or 265.

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traditional fuels, such as oil, and responsible, however, for providing sufficient for particular contaminants in gaseous NHSMs to gaseous traditional NHSM comparison values in cases particular NHSMs. Even when fuels, such as natural gas.64 In light of where testing is conducted. Examples of analytical testing is not necessary, the the explanation of ‘‘designed to burn’’ acceptable NHSM data could include EPA’s regulations governing codified in the final contaminant both laboratory test results from a recordkeeping for units subject to legitimacy criterion, as well as industry specific generator or combustor and emissions standards for boilers and comments that many combustion units industry-recognized values provided by process heaters issued pursuant to CAA can burn multiple types of fuel, the a national trade organization. section 112 require keeping a record to agency believes that its suggested Given data for a particular traditional document the basis of non-waste approach adequately addresses the fuel, the EPA noted in the proposal that determinations under the part 241 issue. many combustors would choose to base criteria (including the contaminant Finally, the EPA acknowledges that the traditional fuel comparison value on legitimacy criteria). See 40 CFR 40 CFR combustion units can and have been the upper end of its statistical range and 63.11225(c)(2)(ii) for area source boilers designed specifically to burn NHSMs that this approach was reasonable. and 40 CFR 40 CFR 63.7555(d)(2) for and that such units can recover energy. Anything less could result in major source boilers. The agency notes, however, that persons ‘‘traditional fuel’’ samples being The EPA believes that the comments can and have also designed incinerators considered solid waste if burned in the have not changed the basis for its to dispose of certain waste materials and very combustion units designed to burn decision to allow the use of ranges and that such units can also recover energy. them. This was not the agency’s intent surveys of traditional fuel contaminant The agency, therefore, does not consider in the March 2011 final rule.66 Given levels. Nor have comments changed the it dispositive that if combustion units that selection (i.e., the range for agency’s position that similar traditional are designed to burn a specific material, traditional fuel contaminant values), the fuels may be grouped for comparison that material must be a legitimate non- agency noted that acceptable NHSM purposes and that testing is not required waste fuel. comparison values would include the in all cases. Thus, the EPA is adopting upper end of a statistical range, a the reasoning from the proposal and d. Contaminant Comparisons Allowed calculation involving the mean and adjusting the contaminant legitimacy The proposed revision to the standard deviation or perhaps a single criterion accordingly for NHSM used as contaminant legitimacy criterion for data point in situations where data are a fuel. NHSMs used as a fuel included the limited. The proposal reasoned that it The EPA has decided, however, to following statement: ‘‘In comparing would not be appropriate to compare an make a modification to the regulatory contaminants between traditional fuel(s) average NHSM contaminant value to the language of the December 2011 and a non-hazardous secondary high end of a traditional fuel range, as proposed rule based on comments material, persons can use ranges of the existence of an average implies received. The final criterion issued traditional fuel contaminant levels multiple data points from which a more today includes additional language compiled from national surveys, as well suitable statistic (e.g., range or standard clarifying the appropriate use of ranges as contaminant level data from the deviation) could have been calculated. when making contaminant comparisons specific traditional fuel being replaced.’’ If each NHSM comparison value is between NHSMs and traditional fuels. The March 2011 final rule did not comparable to or lower than its Consistent with the rationale provided discuss the use of ranges when corresponding traditional fuel value, the in the preamble to the proposed rule, evaluating contaminant data, nor did it material would be considered to meet additional language now states that in discuss the use of traditional fuel data the contaminant legitimacy criterion. order to use the full range of from national surveys. An initial assessment would not need to contaminant values in traditional fuels, The December 2011 proposed rule be repeated, explained the proposal, persons should also account for the included these concepts to clarify that provided the facility continues to variability in NHSM contaminant levels. persons are not required to adhere to a operate in the same manner and use the Any additional reasoning for finalizing single comparison methodology, nor are same type of NHSMs as when the the revision with or without suggested they required to compare contaminants original assessment was made. modifications is described in the in their NHSMs to contaminants in the Despite presenting several approaches responses to comments below. specific traditional fuel source they for calculating NHSM comparison Comment: Industry comments burn (or would otherwise burn). In both values, such as the upper end of a supported the proposed changes instances, the additional language statistical range or a calculation expressly allowing the use of ranges and clarifies, but does not change the intent, involving the mean and standard national surveys of traditional fuel data, of the March 2011 final rule. deviation, the proposal did not preclude as did one state comment. One Regardless of the specific other reasonable methodologies. In the commenter stated that these changes methodology chosen, a comparison will context of an inspection or enforcement provide a more practical approach to have to be made for each contaminant action, the agency will evaluate the meeting the contaminant legitimacy or group of contaminants between the appropriateness of alternative criterion that recognizes the inherent NHSM and a traditional fuel or methodologies and data sources on a variation of contaminants in NHSMs traditional fuel group. Generators or case-by-case basis when determining and traditional fuels. Several combustors can use either traditional whether the contaminant legitimacy commenters supported the use of ranges fuel data collected by the EPA or their criterion has been met. by repeating the EPA’s rationale from own data for traditional fuel comparison The EPA noted in the proposal that the proposal that using anything lower values.65 Generators or combustors are contaminant testing is not required and would logically result in a that process knowledge may be determination that some traditional 64 See 76 FR 80481. fuels should not be burned in 65 The EPA maintains an NHSM Web page with 66 Traditional fuels, as defined in § 241.2, are not combustion units designed to burn current information on contaminant levels in required to meet the legitimacy criteria, and this those fuels. Another commenter stated traditional fuels, examples of legitimacy scenario is only used to explain the logic behind determinations, and other information at http:// basing a traditional fuel comparison value on the that these clarifications describe www.epa.gov/epawaste/nonhaz/define/index. upper end of a statistical range. appropriate methods of handling data

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that are naturally variable and will Comment: Industry comments the upper end of the statistical range. result in fewer non-waste materials supported the concept discussed in the Citing the EPA’s statement in the being arbitrarily identified as wastes. proposed rule that the contaminant proposal that ‘‘it makes sense to base the Environmental groups opposed the legitimacy criterion does not require the traditional fuel comparison on the use of ranges to evaluate contaminants, testing of contaminant levels in NHSMs upper end of the statistical range,’’ 69 the expressing concern that C&D wood in all cases. The proposal noted that commenter asked for confirmation that contaminant levels would be compared persons can instead use expert or the maximum values in the traditional to the highest contaminant levels for process knowledge to justify decisions fuel data set can be used for comparison coal. These commenters suggested that to rule out certain constituents. The with a NHSM since all data averages or medians be used instead. proposal also noted that initial corresponding to the traditional fuel are Response: Based on our review of the assessments would not need to be valid for comparison, not just values comments received, the EPA is retaining repeated, provided the facility continues that are below some arbitrarily the approach outlined in the proposed to operate in the same manner and use determined statistical parameter. rule to expressly allow the use of ranges the same type of NHSMs as when the Response: The word ‘ranges’ in the and traditional fuel data from national original assessment was made. One proposed contaminant legitimacy surveys. As discussed in the proposed commenter asked the EPA to confirm criterion has been changed to ‘the full rule, the EPA considers it reasonable to these statements, explaining that this range’ in the final criterion issued today. allow combustors to use the range of policy will result in fewer NHSMs being This term more clearly indicates the contaminant levels present in arbitrarily identified as wastes. Another agency’s intent to include all true values traditional fuels because anything less commenter stated that the flexibility in between the minimum and the could result in ‘‘traditional fuel’’ provided by this policy will help ensure maximum. samples being considered solid waste if that regulated entities with varying The agency has also separated the burned in the very combustion units levels of sophistication can better concepts of ranges and traditional fuel designed to burn them. For this reason, document that their NHSMs are non- survey data in the regulatory language the agency disagrees with comments waste fuels. in order to make the criterion more stating that combustors should be Environmental groups, on the other transparent. The pertinent regulatory limited to use of the average or median hand, commented that the EPA must text in today’s final rule reads as concentrations. require testing for contaminants, citing follows: ‘‘In comparing contaminants The EPA acknowledges that the the extremely variable nature of C&D between traditional fuel(s) and a non- revisions adopted as final in today’s rule wood as a problem. Commenters hazardous secondary material, persons would allow C&D wood contaminant expressed concern that a large amount can use data for traditional fuel levels to be compared to the highest of material is going to be generated as contaminant levels compiled from contaminant levels for coal. The abandoned and foreclosed housing is national surveys, as well as contaminant commenters do not specify, however, torn down, and the potential for level data from the specific traditional what C&D wood contaminant levels liberating vast amounts of lead and fuel being replaced. To account for (averages or ranges) they are concerned other urban toxics, to say nothing of natural variability in contaminant would be compared to the highest levels arsenic and chromium from pressure- levels, persons can use the full range of in coal. The agency points out that the treated wood, has never been higher. traditional fuel contaminant levels, proposed revisions were not intended to Response: Based on a review of the provided such comparisons also allow average C&D wood contaminant comments received, the EPA is consider variability in non-hazardous levels to be compared to the highest maintaining its position that secondary material contaminant levels.’’ levels in coal. In light of the concerns contaminant testing is not required in Comment: Several commenters noted expressed by these commenters, the all situations. Requiring testing in some that the agency proposed to allow the EPA has modified the proposed situations is unnecessary. Where a use of ‘‘national’’ surveys of traditional language to provide additional NHSM generator, processor or fuel data in the proposed contaminant assurance that such average-to- combustor knows a contaminant will legitimacy criterion and included maximum comparisons, which the either not be present or be present at a several international data sources in its agency has already determined are level below that in the appropriate ‘‘Contaminant Concentrations in inappropriate, will not be allowed traditional fuel or traditional product, Traditional Fuels: Tables for under today’s final rule. The EPA has the agency believes it is a reasonable Comparison’’ document.70 Several decided that such comparisons are and practical policy to allow persons to commenters asked that the word inappropriate because, following the rely on either process knowledge or ‘national’ be removed from the logic stated in the March 2011 final rule, previous testing of the same material. contaminant legitimacy criterion. Other average-to-maximum comparisons do The agency notes that there will be commenters asked that the EPA either not demonstrate that contaminants in instances where testing is conducted remove the word ‘national’ or clarify these cases could be considered a and comparisons will have to account that international data and surveys from normal part of a legitimate fuel and are for the variability of contaminant levels other nations are also acceptable data not being discarded.67 in NHSMs, including lead sources. Today’s final criterion makes clear concentrations in C&D wood. The Response: The EPA has retained the that the full range of traditional fuel agency also notes that today’s final rule proposed language, including the word contaminant values can only be used if does not change its previously stated ‘‘national,’’ which expressly allows persons also consider some measure of position that chromated copper national surveys of traditional fuel data variability in the NHSM contaminant arsenate-treated wood (CCA wood) to be used in contaminant comparisons data. This will help to ensure that would likely have contaminant levels average to maximum comparisons will not comparable to traditional fuels.68 69 See 76 FR 80481. not be used to justify the combustion of Comment: One commenter requested 70 The EPA maintains a NHSM Web page with current information on contaminant levels in NHSMs as non-waste fuels. that the EPA clarify what it means by traditional fuels, examples of legitimacy determinations, and other information at http:// 67 See 76 FR 15523. 68 See 75 FR 31872. www.epa.gov/epawaste/nonhaz/define/index.

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for NHSMs used as a fuel in combustion database in developing the tables posted The EPA does not agree, however, units. A statement that national surveys on the agency’s Web site. with an approach of using the UCL of can be used does not preclude the use We would also note that the decision the mean. That is, the UCL of the mean, of appropriate international data. In fact, not to use USGS data is consistent with regardless of the confidence level, is a as the commenters recognize, the EPA the agency’s position that product fuel measure of the mean and does not included several international sources oils, as opposed to virgin crude oil, adequately factor in the variability in its analysis of traditional fuels. These should be measured for purposes of present in both NHSMs and traditional international sources were limited, contaminant comparisons. As stated in fuel contaminant levels. The metric however, to situations where no data or the proposed rule, neither unrefined would be appropriate for a mean to minimal data could be found from crude oil nor gasoline is typically mean comparison, but that is not what national sources or the agency had no burned in combustion units regulated the commenter suggested. The comment reason to believe that data from national by CAA sections 112 and 129. Similarly, suggested taking a maximum (which sources would be significantly different. as-mined coal is not typically burned in takes full advantage of the variability At issue is whether the data are combustion units regulated by CAA present in traditional fuel contaminant representative of traditional fuels that sections 112 and 129. levels) and comparing it to a mean are purchased and burned at operating Comment: One commenter suggested (which ignores the variability present in boilers in the United States. The agency that for each contaminant or group of NHSM contaminant levels). The EPA has decided that it is reasonable to contaminants, either the UCL of the does not consider this approach to be a assume that national surveys of mean at a 90 percent confidence level or reasonable methodology. traditional fuels contain information the UPL at a 90 percent confidence level To be clear, the EPA does not object about fuels purchased and burned at for NHSMs could be compared to the to the use of confidence limits, or to the operating boilers in the United States. maximum value for the appropriate use of the UCL of the mean, on their traditional fuel. own grounds. However, the agency Comment: One commenter argued Response: First, we would note that in believes it is inappropriate to make a that the traditional fuel database the preamble to the recent proposed comparison of mean contaminant levels compiled by the EPA should include the rule, the EPA indicated that when in NHSMs to maximum contaminant USGS coal data from not only the compared to the full range of levels in traditional fuels. United States but also from around the contaminants in traditional fuels, Comment: One commenter suggested world because those fuels are currently suitable measures of NHSM that the EPA allow entities to compare in use. contaminants would include the upper contaminants between NHSMs and Response: The EPA has maintained its end of a statistical range, a calculation traditional fuels on a pound of decision not to reference the USGS involving the mean and standard contaminants per Btu (lb/MMBtu) basis, COALQUAL database in its traditional deviation or perhaps a single data point as the agency said it would consider in fuel contaminant tables. It is the in situations where data are limited. The the preamble discussion to the 2011 agency’s understanding that the agency also noted that the discussion in NHSM Final Rule.73 COALQUAL database contains trace the preamble did not preclude ‘‘other Response: The EPA maintains its metal analyses for coal and associated reasonable methodologies.’’ 72 position that a direct comparison of rocks taken directly from coal beds With respect to the specific contaminant levels, as opposed to the throughout the United States and that approaches suggested by the lb/MMBtu approach, is the most not all of these coal beds are currently commenters, the EPA agrees with the appropriate means of comparing being mined. It is also the agency’s approach of comparing the UPL at a 90 contaminant levels. As was noted in the understanding that as-mined coal percent confidence level for each 2011 NHSM Final Rule, however, the typically undergoes a series of contaminant or group of contaminants agency may still consider the lb/MMBtu processing steps, including crushing, in NHSMs to the maximum value for approach as guidance is developed for screening, washing and physical each contaminant or group of implementation. separation techniques to remove rock contaminants in the appropriate and other impurities prior to being traditional fuel. Specifically, the UPL is 3. Categorical Non-Waste blended into clean, graded and uniform an indicator of what a future Determinations for Specific NHSM Used coal products suitable for use in measurement would be. In the context as Fuels commercial boilers.71 of NHSM contaminant levels, the UPL The new provisions at 40 CFR 241.4 In comparison, the EPA contaminant taken at a 90 percent confidence level were proposed to allow the EPA to list tables referenced by commenters are would yield a number, and a combustor categorically certain NHSMs as non based largely on a comprehensive could be confident that 90 percent of the wastes—when used as a fuel in a dataset that contains approximately time, the next measured contaminant combustion unit. Based on these 32,000 records of pre-combustion level would be at or below that number. categorical non-waste determinations, contaminant analyses performed on The UPL considers both the variability facilities burning NHSMs that qualify coal, wood, biomass and fuel oil of the contaminant distribution and the for the provision will not need to samples that were actually used as fuel uncertainty surrounding what the true demonstrate that the NHSM meets the at boilers across the country. Thus, the mean is. The comment suggested taking legitimacy criteria on a site-by-site basis. agency has decided that the EPA dataset a maximum value for traditional fuel The EPA has determined that these is more representative of contaminant contaminant levels and comparing it to NHSMs are categorical non-wastes as levels in coal actually burned at the UPL at a 90 percent confidence described and are not discarded when operating boilers than the COALQUAL level. Because both metrics account for used as a fuel in a combustion unit. database. As a result, the EPA has the variability present in contaminant Categorical non-waste determinations decided not to use the COALQUAL distributions, the EPA would consider only apply, however, to NHSMs that are this approach to be a reasonable burned as a fuel in combustion units for 71 Speight, J.G. Synthetic Fuels Handbook: methodology. the purpose of recovery energy. Burning Properties, Process, and Performance. McGraw-Hill, 2008. pg 141. 72 See 76 FR 80481. 73 See 76 FR 15525.

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a NHSM fuel in a combustion unit for rule) simply applies the agency’s non- 241.4 categorical non-waste energy recovery assumes a set of basic discard determination, made in the determinations for scrap tires. The term design requirements that ensures excess March 2011 rule and not reopened in ‘scrap tire’ is a general term for tires and air pollutants are not formed and this amendment, to the general category can include, for example, whole tires, emission requirements under the CAA so that case-by-case determinations as to chipped tires, off-specification tires or are met. As discussed in section III.D.2.c legitimacy would not need to be made off-specification tire components (i.e., of this preamble, such basic design by each facility. For the scrap tire tread, sidewall or base) that are removed requirements include abilities to load category, scrap tires managed under from vehicles or are generated by tire the material into the unit, ensure the established tire collection programs and manufacturers, including retailers or material is well mixed and maintain used as a fuel need not make case-by- other parties involved in the temperatures within unit specifications. case legitimacy determinations. distribution and sale of new tires. This For example, burning a whole tire in a Moreover, the commenter has given us formulation was also stated in the boiler that is only designed to burn tires no information that the criteria are not December 2011 NHSM proposal 75 and that are chipped and/or dewired would met. In fact, the commenter simply is adopted for today’s final rule. The not be considered a fuel burned in a repeats the argument made in previous EPA sees no difference between tires combustion unit for the purpose of rulemakings that the material is always and their various components. Thus, the recovering energy. The agency is not a waste regardless of legitimacy criteria. EPA does not believe it necessary to including specific regulatory text Comment: Several commenters modify the rule to include ‘‘off- regarding this point since we believe it suggested that scrap tires should not specification tire components’’ in the is understood that to be burned for have more restrictions under 40 CFR codified definition. They are understood energy recovery, the combustion unit 241.4(a) for the categorical non-waste to be included in the categorical non- must be able to burn the NHSM as a status than does resinated wood. The waste provision. fuel. non-waste determination for scrap tires, Comment: Many commenters as proposed in 40 CFR 241.4(a)(1), read a. Scrap Tires mentioned the difficulty in complying ‘‘Scrap tires that are not discarded and with the regulations since it is very In the December 23, 2011, NHSM are managed under the oversight of difficult to distinguish between tires proposed rule, the EPA proposed the established tire collection programs, removed from vehicles (and off- following regulatory language under 40 including tires removed from vehicles specification tires) versus tires from CFR 241.4 Non-Waste Determinations and off-specification tires.’’ In other origins. In regard to this issue, one for Specific Non-Hazardous Secondary comparison, the resinated wood commenter stated, ‘‘a combustor cannot Materials When Used as a Fuel: ‘‘Scrap description, as listed in 40 CFR know the origin of the tire-derived fuel tires that are not discarded and are 241.4(a)(2), is ‘‘Resinated wood.’’ The it is buying. In its response to requests managed under the oversight of commenters reasoned that if all for reconsideration of the CISWI rule, established tire collection programs, resinated wood can be non-waste, then the EPA responded to this issue by including tires removed from vehicles all scrap tires should also qualify recognizing that it is not possible for a and off-specification tires.’’ Further, the (regardless of the origin). combustor to know the source of all addition of this provision (40 CFR Response: Please see the EPA’s NHSM fuel and declined to impose this 241.4(a)(1)) eliminated the need for the response in the resinated wood section requirement stating: previous scrap tire provision at 40 CFR below (section III.D.3.b of this preamble) 241.3(b)(2)(i),74 which has been relating to the 241.4(a) criteria for ‘‘Rather, it is sufficient that the ultimate resinated wood and the comparison to user verify that it is obtaining tires from an removed and reserved in today’s final established tire collection program, which rule. Today’s rule finalizes the proposed scrap tires. That response goes into program can provide the user with provision without changes. detail explaining why the extra criteria reasonable assurance that it manages tires Comment: One commenter stated that, are not needed for resinated wood and carefully from point of collection to point of ‘‘in its latest proposal, EPA eliminates related discard issues. In addition, as burning and which does not receive tires the need for scrap tires to meet its noted previously in the NHSM which have been abandoned in landfills or legitimacy criteria and simply declares rulemaking record (see docket EPA– otherwise. 76 Fed. Reg. 28318, 28322 (May that scrap tires collected under an HQ–RCRA–2008–0329), numerous tire 17, 2011).’’ established tire collection program are piles have been created in the past Therefore, the commenter requests not waste regardless of whether they whereas this is not the case for resinated that the EPA codify this statement in the meet the agency’s legitimacy criteria.’’ wood used as fuel. The existence of NHSM rule and expressly allow Response: The EPA disagrees with these historic tire dumps demonstrates combustors to rely upon certifications of this comment. The EPA has not that some tires have not been treated as fuel suppliers that the fuel sold is not eliminated the legitimacy criteria for a valuable commodity therefore a solid waste. scrap tires. The categorical necessitating the additional discard Another commenter said that for the determination for scrap tires (as with all qualification in regulatory text. The EPA to require a tire storage facility to the categorical determinations in this specific tires described in the maintain separate classifications of tires categorical determination are handled as (i.e., separating discarded tires from tire 74 The scrap tire provision in the 2011 NHSM a valuable commodity and do not dumps from other tires) is not final rule is now removed and the section reserved include discarded tires. reasonable, because inspectors and in today’s final rule: ‘‘(b) The following non- Comment: A commenter suggested operators would not be able to tell the hazardous secondary materials are not solid wastes when combusted: that the EPA should add ‘‘off- piles apart. The EPA’s current definition (2) The following non-hazardous secondary specification tire components’’ to the of scrap tires would place undue materials that have not been discarded and meet the regulatory language. This revision financial hardship on contractors and legitimacy criteria specified in paragraph (d)(1) of would be in addition to the proposed storage facilities. this section when used in a combustion unit (by the text at 40 CFR 241.4(a)(1) that adds ‘‘off- Response: The EPA has decided that generator or outside the control of the generator): (i) Scrap tires used in a combustion unit that are specification tires.’’ a regulatory statement on this matter is removed from vehicles and managed under the Response: Off-specification tire oversight of established tire collection programs.’’ components are covered in the 40 CFR 75 See 76 FR 80483.

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not necessary since the actual every situation, we proposed to list manage and optimize combustion.’’ This requirement for the combustor to categorically resinated wood as a non- same commenter also stated that ‘‘there determine where its tires come from waste fuel because, after balancing the exists within the wood products when they are coming from an regulatory legitimacy criteria and other industry a developed market for established tire collection program (or a relevant factors, the EPA determined purchase and sale of resinated wood contractual agreement) is provided for that resinated wood that is used as fuel between independent companies.’’ In under the CAA and interpretations represents an integral component of the fact, many wood-fired boilers at wood provided for that regulation. For wood manufacturing process and, as products plants that do not generate example, major source boilers have a such, is not being discarded when sander dust have been retrofitted with recordkeeping requirement for a non- burned as fuel. sander dust injection burners so that waste determination at 40 CFR 63.7555 Specifically, we noted the extent to sander dust can be properly combusted ‘‘What records must I keep?’’ Within which resinated wood is used as fuels in those units, taking full advantage of those regulations for major source throughout the wood manufacturing the heat energy of sander dust. boilers, it requires the combustor to industry and that the use of resinated Another commenter stated that demonstrate that NHSMs are a non- wood as fuel is essential to the wood ‘‘resinated fuels have been an integral waste. To the extent that a combustor manufacturing process. We also noted part of the composite wood product believes it appropriate, they may request the prevalence of wood product plants industry’s production process since the haulers to verify that the tires would that have been designed specifically to industry was established decades ago. qualify as non-waste under 40 CFR utilize these residuals for their fuel As such, facilities’ combustion and 241.4 when combusted. value; in fact many (if not most) wood energy systems were designed and If there is question about the origin of products plants would not be able to constructed to utilize most if not all of the tires, the EPA inspectors will not operate as designed without the use of their own wood and wood by-products, assume that tires are from discarded these materials. This determination was including resinated trim and sander sources. As we note in the Federal previously codified under 40 CFR 241.3 dust. Excluding resinated wood fuels Register notice (76 FR 28318, 28322), ‘‘It (b)(2)(ii) of the NHSM final rule, from our manufacturing processes is EPA’s position that ultimate users are provided the resinated wood met the would require significant re-engineering not responsible for knowing the source legitimacy criteria in 40 CFR of our facilities and add insurmountable of all tires obtained from an established 241.3(d)(1). However, based on the operating costs in order to substitute tire collection program* * * EPA does available information, as well as how fossil fuels, as well as to and not interpret this language as requiring this material is handled and used in the dispose of resinated wood fuels. Any knowledge of each individual tire as process, resinated wood is not being other result would effectively make it this is a practical impossibility* * * discarded when used as a fuel, and thus, nearly impossible for these users also should not assume that tires should not be considered a solid waste manufacturing facilities to continue from established programs which when burned as a fuel. The EPA operations.’’ This same commenter also participate in occasional cleanup days proposed to codify this determination noted that ‘‘many of our facilities rely are discarded—both because there is no by categorically listing resinated wood exclusively on resinated wood for its information that the tires from the as a non-waste fuel in 40 CFR fuel and have limited access to cleanup efforts were discarded (and 241.4(a)(2).77 By specifically listing it as substitutes.’’ these programs are designed to prevent a non-waste fuel, combustors of this Another commenter provided two discarding) and whether the kiln material would not need to demonstrate examples of mills that utilize nearly 100 received tires from the sporadic cleanup that they meet the legitimacy criteria on percent of sander dust, either to create days in any case.’’ a site-by-site basis. new product as part of the The Federal Register notice that the The EPA finds that this reasoning is manufacturing process or as fuel. In commenter cited (76 FR 28322) and a supported by the entire rulemaking addition, two state commenters related letter to the docket record, as explained in the December supported the proposed categorical non- (‘‘Memorandum. Combustion in a 2011 proposal, which rationale is waste determination for resinated wood. Cement Kiln and Cement Kilns’ Use of adopted for the final rule as further Response: Nearly all of the comments Tires as Fuel.’’ April 25, 2011, supported by responses to comments received regarding the proposed Document ID: EPA–HQ–OAR–2002– below. Thus, the agency has determined categorical non-waste determination 0051–3582) provide sufficient guidance. to list categorically resinated wood as a were supportive of categorically listing The agency believes this issue does not non-waste fuel. In addition, after resinated wood as a non-waste fuel merit additional regulation for the considering comments received on the when burned in combustion units for hauler. proposal, the agency is revising the energy recovery. As noted above, the b. Resinated Wood definition of ‘‘resinated wood,’’ as agency did receive a few additional In the December 23, 2011, proposed codified in 40 CFR 241.2. examples of how the use of resinated rule, the EPA proposed to designate in Comment: Most comments on this wood as a fuel is an integral part of the regulatory text that resinated wood is issue were supportive of a categorical wood manufacturing industry’s not a solid waste when used as a fuel. determination that resinated wood is a production process (e.g., the facilities In making this determination, the non-waste fuel. One commenter that would have to be significantly re- agency analyzed these materials using maintained that the record for this engineered if they could not use the legitimacy criteria, concluding that rulemaking clearly establishes that resinated wood for its fuel value and the resinated wood clearly is managed as a resinated wood is highly valued within mills that use 100 percent of the sander valuable commodity and has the wood products industry for its high dust it generates, either by recycling it meaningful heating value and is used as fuel value, stating that ‘‘Many facilities back into the process or burning it for fuel.76 While stating that these materials rely on mixing of these low moisture fuel). may not always meet the regulatory content wood materials with higher Although we received one comment contaminant legitimacy criterion in moisture content wood materials to critical of the EPA’s proposed listing of resinated wood as a non-waste fuel 76 See 76 FR 80483. 77 See 76 FR 80483–80484. (addressed below), we did not receive

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any comments that argued or suggested always meet its contaminant legitimacy assuming it is a ‘‘use’’ at all—burning it. that the use of resinated wood as a fuel criterion—i.e., would not be comparable Moreover, establishing a ‘‘motivation’’- is not an integral component of the to the levels in any fuel that companies based test for whether resinated wood is wood manufacturing process. Thus, we would otherwise burn. The commenter or is not a waste conflicts with and agree with commenters who encouraged states that the EPA also acknowledges defeats the CAA. Thus, the agency’s the EPA to finalize resinated wood as a that burning resinated wood increases categorical declaration that resinated categorical non-waste fuel and will the emissions of formaldehyde, but wood is not a waste is unlawful. finalize this determination in today’s nonetheless finds that, ‘‘In general the Response: The EPA strongly disagrees rulemaking. motivation to use resinated wood as a with the commenter’s characterization Information in the record for this fuel, even with the slightly higher of its categorical determinations. In rulemaking clearly establishes that formaldehyde levels, predominates over making categorical determinations, the resinated wood is managed as a valuable the motivation to dispose of the agency is not ‘‘exempting’’ these commodity (40 CFR 241.3(d)(1)(i)) and formaldehyde.’’ The EPA’s decision to materials from regulation as a solid has meaningful heating value and is remove the limits on the exemption for waste (i.e., if not for this ‘‘exemption,’’ used as a fuel in combustion units that resinated wood and to ‘‘categorically’’ these materials would otherwise be recover energy (40 CFR declare resinated wood to be a non- regulated as solid waste). Rather, the 241.3(d)(1)(ii)).78 In addition, we waste—regardless of who burns it, EPA has determined that the specified generally have determined that most regardless of how contaminated it is, NHSMs are not solid waste when used resinated wood meets the contaminant and regardless of the reality that some as fuels. Further, in making categorical legitimacy criterion as well ((40 CFR companies may be burning resinated determinations, the EPA is not saying 241.3(d)(1)(iii)), although we wood as a cheap means of disposing of that the legitimacy criteria are not acknowledge that in some instances their toxic formaldehyde wastes— relevant. In proposing the categorical these materials may have levels of underscores this point. non-waste determination for resinated formaldehyde that are not comparable to The comment continues that the EPA wood, the agency stated we were 79 traditional fuels. nowhere claims that companies burning ‘‘balancing the legitimacy criteria and The EPA confirms the position resinated wood that they have not other relevant factors based on the fact discussed in the proposal and adopts it generated pay for these materials. that resinated wood residuals that are as its final rationale that there are Indeed, the EPA does not deny that used as fuels represents an integral instances where it is appropriate for the these companies are paid to take the component to the wood manufacturing EPA to balance the regulatory legitimacy resinated wood they burn. Thus, the process and, as such, resinated wood criteria with other relevant factors in EPA provides no reason to believe that residuals are not being discarded when order to determine whether a material is the resinated wood that is burned by a burned as fuels.’’ 80 This remains the a legitimate fuel or is merely being company other than the one that agency’s final finding in this rule. discarded by being combusted. We have generated it has not been discarded by Regarding the level of contaminants determined that resinated wood is one the company that generated it. Even in resinated wood, the agency is not such example. Although resinated wood under the EPA’s own view of the saying that resinated wood is a non- may not meet the regulatory meaning of discard, resinated wood waste fuel ‘‘regardless of how contaminant legitimacy criteria in every burned by companies other than the situation, it is clear that resinated wood generator of the resinated wood would contaminated it is,’’ as the commenter is still a ‘‘legitimate’’ product fuel after be waste but for the agency’s declaration suggests. Based on all available one considers how integrally tied the that it is not waste. information, the agency has concluded use of resinated wood as a fuel is within The commenter also states that the that resinated wood meets the the wood manufacturing process and EPA admits that some companies may legitimacy criteria for all contaminants industry. Nearly all comments received burn resinated wood because they want with the possible exception in some on this point concurred with this to dispose of the formaldehyde it situations of formaldehyde. In focusing assessment. Thus, in today’s final rule, contains (i.e., to dispose of the specifically on formaldehyde, we also we are codifying the determination that contaminated wood rather than to have stated that we have limited resinated wood, based on all recover energy). Moreover, the levels of information regarding formaldehyde information and the totality of the formaldehyde contamination in some levels—that is, resins and adhesives circumstances, is a non-waste when resinated wood would exceed the EPA’s containing formaldehyde react within used as a fuel. legitimacy criteria, but for the EPA’s the resin curing process leaving ‘‘free Comment: One commenter, however, declaration that these criteria do not formaldehyde at levels less than 0.02 stated that the EPA’s proposed apply. For these reasons as well, percent (or 200 ppm), but noted that categorical determination that resinated resinated wood is discarded even under levels will be reduced further due to wood is a non-waste fuel is unlawful the EPA’s own view of what that term new national rules being developed by and arbitrary. The commenter stated means. the CARB Composite Wood ATCM, per that the EPA is now proposing to simply Further, the comment states that new Public Law 111–199. Thus, we ‘‘exempt’’ resinated wood altogether, sources’ alleged ‘‘motivation’’ for have not said that contaminants do not regardless of who burns it and whether burning a material is to recover energy matter. Rather, we have carefully it meets the legitimacy criteria. rather than to destroy the wood and the analyzed contaminant levels in According to the comment, the EPA contaminants it contains—assuming resinated wood and have determined, acknowledges that the formaldehyde arguendo that a source’s motivation can based both on contaminant levels, as levels in resinated wood would not even be determined—does not show well as how the use of these materials that material is not a waste. Rather, represents an integral part of the wood 78 See, e.g., 76 FR 80483. See also background resinated wood is a waste because it is product manufacturing process, that document developed in support of the December discarded within the meaning of RCRA. resinated wood materials are a 23, 2011, proposed rulemaking titled, ‘‘Resinated Wood, Scrap Tire, and Pulp/Paper Sludge Support Notably, the EPA does not suggest that legitimate non-waste fuel. Document’’ (EPA–HQ–RCRA–2008–0329–1880). there is any use for resinated wood that 79 Id. has been discarded other than— 80 See 76 FR 80483.

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Further, we do not concede, as the not occurring when a material is source of energy as well as being commenter contends, that some transferred beyond the control of the recycled back into the manufacturing companies burn resinated wood to generator, the price of an NHSM is not, process to create more wood products. destroy contaminants—in fact, we have by itself, dispositive of whether the Thus, we are not convinced that a determined just the opposite. We have material is or is not a waste. The main facility that considers the use of determined that companies burning indication that resinated wood residuals resinated wood as a fuel to be an resinated wood do so because such an are not solid waste is the fact that they integral part of its production processes, activity is integrally tied to their are used as fuels in a way that as has been established in the record, is production process, not to dispose of represents an integral component to the motivated to discard these materials by the formaldehyde. This determination is wood products industry. As the EPA burning to get rid of them. based on that extent to which resinated noted in the March 2011 final rule, Comment: A few commenters stated wood is used as fuels throughout the ‘‘resinated wood residuals transferred that the EPA is not consistent in how wood manufacturing industry, as well off-site are utilized in the same manner discarded materials are designated as as the fact that the use of resinated as self-generated resinated wood solid waste. In particular, the wood as fuel is essential to that industry residuals (i.e., contained in the same commenter stated that the EPA was (i.e., plants have been designed to use bins as furnish materials used in the proposing to list as a categorical non- these materials as fuels and would be product, transferred via conveyors or waste fuel in 40 CFR part 241.4 unable to operate if resinated wood was ducts), which the plants are specifically resinated wood regardless of whether it not available as a fuel source). designed to burn as a fuel, [and is previously discarded, while the Regarding the comments that the EPA therefore] we agree that this does not agency would require processing for acknowledges that burning resinated constitute discard.’’84 scrap tires that have been discarded in wood increases emissions of The comment that the agency has landfills. formaldehyde, the agency needs to simply declared that resinated wood is Response: The agency disagrees that correct this characterization. First, in a non-waste ‘‘regardless of who burns its treatment of resinated wood is the 2011 NHSM final rule, we stated it’’ is a mischaracterization of this inconsistent with its treatment of scrap that the criterion or test in determining categorical non-waste determination. tires. Nowhere does the agency state the contaminant legitimacy criterion is Based on all information provided to the that resinated wood would be based on the level of contaminants in agency, we have determined the use of considered a non-waste fuel ‘‘regardless the secondary material itself and not by resinated wood as a fuel is an integral of whether it is previously discarded.’’ comparing the differences in part of the industry’s production The EPA, based on all information emissions.81 However, responding to processes and that these materials are available, has determined that resinated comments we received regarding managed as valuable commodities (i.e., wood is not being discarded when used emission levels associated with burning fuels), have meaningful heating value as fuel, given the fact that resinated resinated wood as a fuel, the agency and are used in combustion units that wood residuals that are used as fuels determined that the amount of recover energy regardless of whether represent an integral component of the formaldehyde that is emitted from these materials remain within the wood manufacturing process. If a burning resinated wood residuals is in control of the generator or are shipment of resinated wood residuals fact likely to decrease, given that Public transferred offsite to another facility. On was disposed of in a landfill, it would Law 111–199 will reduce formaldehyde the other hand, we have no information be a waste. In addition, if a shipment of levels in these materials.82 that facilities are burning these resinated wood residuals were disposed Regarding the commenter’s statement materials merely to get rid of them (i.e., of and later recovered to be used as a that companies that burn resinated discard). fuel, as is the case with scrap tires that wood that they have received from The EPA finds irrelevant the are extracted from landfills, this would offsite do not pay for it, the EPA commenter’s statement that the EPA is be a different scenario and would not be disagrees with the argument put forth by looking to a source’s motivation for included within the categorical listing the commenter as the facts in this using a material as a fuel conflicts with in 241.4(a)(2). instance do not support such a premise. and defeats the CAA. The issue, rather, As the record clearly shows, resinated As noted in the March 2011 final rule, is whether motivation is relevant to a wood is routinely handled and managed inter-company transfers of resinated waste determination under RCRA. The as a valuable fuel product within the wood residuals are typically managed D.C. Circuit confirmed the relevance of wood products manufacturing industry. through buy-sell contracts and 6 percent motivation in determining whether a As noted in the rulemaking record (see of resinated wood residuals are sold into recycled material is a waste. See, API v. docket EPA–HQ–RCRA–2008–0329), the fuel market and are used as either EPA, 216 F.3d at 58 (court criticizes the numerous scrap tire piles have been ‘‘furnish’’ (i.e., raw materials) or fuel at EPA for not saying why it has created in the past and it is a common the receiving facilities.83 In addition, the concluded whether recycling motivation practice to recover abandoned tires from EPA received additional comments on predominates over a disposal tire piles and use them for fuel. This is the proposed rule stating, ‘‘* * *there motivation). In this case, it is clear that not the case for resinated wood. exists within the wood products the motivation for burning the resinated Comment: While supportive of the industry a developed market for wood is to utilize its inherent value as agency’s proposed listing of resinated purchase and sale of resinated wood a fuel and not for disposal. Commenters wood as a non-waste fuel in 40 CFR part between independent companies.’’ have provided the agency with 241.4, two commenters suggested that Moreover, while contractual information that facilities generating the agency revise the definition of arrangements can be used as evidence and managing resinated wood residuals ‘‘resinated wood’’ as codified in 241.2. that the material is managed as a consider these materials to be an Currently, ‘‘resinated wood’’ is defined valuable commodity and that discard is integral part of their production as, ‘‘wood products (containing resin process—both in the value these adhesives) derived from primary and 81 See, e.g., 76 FR 15502. materials provide as being a critical secondary wood products 82 Id. manufacturing and comprised of such 83 See 76 FR 15500. 84 Id. items as board trim, sander dust, and

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panel trim.’’ However, these these terms are widely used and involved in determining whether these commenters request the EPA to revise accepted within the wood products additional types of coated materials are this definition in order to clarify that the manufacturing industry. legitimately used as product fuels. That ‘‘spectrum of resinated materials With respect to the inclusion of off- is, commenters have not provided currently used as fuels throughout the specification resinated wood products, information regarding whether these wood product manufacturing process the EPA finds it appropriate to include ‘‘finishing materials’’ could have are included in the definition.’’ Thus, this class within the definition of contaminant concerns and whether they commenters urge the EPA to revise the resinated wood. We note, however, that are routinely used as fuels. Subsequent definition of resinated wood as follows: to the extent that a facility has reason to to this rulemaking, the agency would ‘‘Resinated wood means wood products expect that the off-specification wood welcome information regarding these (containing binders and adhesives) products are off-spec for chemical materials in order to make an informed produced by primary and secondary reasons, such that the levels of decision regarding whether these wood products manufacturing. contaminants are expected to be greater materials fit within the definition of Resinated wood includes residues from than their on-spec counterparts, the EPA ‘‘resinated wood.’’ Alternatively, the the manufacture and use of resinated would not consider such materials to be commenter may petition the agency to wood, including materials such as board within the scope of this definition. The receive a non-waste determination per trim, sander dust, panel trim, and off- agency will make this point more clear the petition process established in 40 specification resinated wood products.’’ by specifying in the definition that the CFR 241.3(c) if the commenter believes The suggested revised definition term ‘‘off-specification resinated wood that this material may not be within the proposes two changes. First, the products’’ are off-spec due to the fact definition of ‘‘resinated wood.’’ suggested definition replaces the phrase that they do not meet a manufacturing ‘‘containing resin adhesives’’ with the quality or standard. Thus, in today’s 4. Rulemaking Petition Process for Other phrase, ‘‘containing binders and final rule, we are codifying the Categorical Non-Waste Determinations adhesives.’’ The second suggested definition of resinated wood as follows: (40 CFR 241.4(b)) revision to the definition is the specific ‘‘Resinated wood means wood products The EPA recognizes that there may be inclusion of ‘‘off-specification resinated (containing binders and adhesives) other NHSMs that can also be wood products.’’ Commenters have produced by primary and secondary considered non-wastes when used as indicated that these materials include wood products manufacturing. fuels in combustion units when materials that do not meet Resinated wood includes residues from balancing the legitimacy criteria and manufacturing specifications or are the manufacture and use of resinated other relevant factors. Thus, under otherwise physically marred or wood, including materials such as board today’s rule, we are finalizing the damaged and thus, are not sold in the trim, sander dust, panel trim and off- process outlined in the proposed rule marketplace. This class of materials specification resinated wood products whereby persons can submit a would not be expected to be chemically that do not meet a manufacturing rulemaking petition to the different than the resinated wood quality or standard’’ (emphasis added). Administrator where they can identify products that meet the manufacturing Comment: One commenter noted that and request that additional NHSMs be ‘‘on-spec’’ requirements. For example, there are additional secondary materials listed in section 241.4. The petition off-specification resinated wood produced by the wood manufacturing process is similar to 40 CFR 260.20, products would not be expected to have industry that are similar to resinated where any person may petition the higher amount of resins (and therefore wood and, thus, should also be Administrator to modify or revoke any contaminants) than their on- considered a non-waste fuel. The provisions of the hazardous waste rules specification counterparts. Commenters production of flooring and furniture and where procedures governing the have indicated that off-specification creates final finishing trim, sander dust EPA’s action on those petitions are resinated wood products are identical to and process breakage that are both solid established. The 40 CFR 260.20 their on-specification counterparts and resinated wood materials. In some standards reflect normal, informal chemically and only differ in that they cases, these materials are coated with rulemaking procedures under the APA are do not meet a manufacturing quality finish materials used to color and and thus, serve as an appropriate model or standard. protect the finished product. The for the NHSM rulemaking petitions Response: The agency recognizes that commenter (a utility) indicated that under this section. in order for a categorical non-waste their facilities receive these materials In the context of a rulemaking petition determination to be meaningful and from furniture and flooring under section 241.4(b), any person can effective, it must be clear about the manufacturers and utilize them to offset petition the Administrator for a universe of materials that such a the fuel load from fossil fuels due to regulatory amendment to identify and categorical non-waste determination their high heat capacity. Thus, the request that additional NHSMs be encompasses. Thus, we agree with commenter requests that the EPA included on the list of materials in commenters who suggested specific expand its definition of resinated wood section 241.4(a) that are not solid wastes revisions to the definition of ‘‘resinated materials to include these additional when used as a fuel in a combustion wood’’ contained in part 241.2. wood manufacturing secondary unit. To be successful, the petitioner Specifically, the EPA agrees that these materials as non-waste fuels or needs to demonstrate to the satisfaction revisions create a definition that more otherwise describe the circumstances of the Administrator that the proposed accurately captures the scope of under which these additional materials regulatory amendment involves a resinated wood and is more would be considered a non-waste fuel. NHSM that has not been previously representative of the resinated materials Response: It is possible that these discarded (i.e., was not initially currently used as fuels throughout the materials (or some of these materials) abandoned or thrown away), or if wood product manufacturing process. could be within the definition of discarded, has been sufficiently First, by including the terms ‘‘binders’’ ‘‘resinated wood,’’ as codified in 40 CFR processed into a legitimate fuel. The and ‘‘adhesives,’’ the universe of part 241.2; however, commenters have petitioner must also demonstrate that materials that we consider to be within not provided the agency with the material is used as a non-waste fuel this definition should be more clear, as information regarding the factors in a combustion unit because it either

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meets the legitimacy criteria, or, after the only other factor which should be ingredients are combusted or are balancing the legitimacy criteria with considered is whether the material is processed from previously discarded other relevant factors, such NHSM(s) is being used legitimately as a fuel. The material that would be a candidate for not a solid waste when used as a fuel remaining legitimacy criteria are (and listing categorically. Therefore, we do in a combustion unit. should be) irrelevant. not believe it necessary to modify the If the applicant believes that the Response: As discussed in the 2011 proposed rule to address this situation. NHSM is a legitimate product and not NHSM final rule, ‘‘legitimacy’’ is However, to the extent that there are discarded despite not meeting the shorthand for referring to NHSM that instances where such materials do exist, legitimacy criteria, additional are not abandoned or thrown away, are persons can always petition the EPA to information must be submitted to saved and are reused by being burned modify the rules, including allowing explain or describe why such NHSM for their value as a fuel.85 The ingredients that are combusted to be should be considered a non-waste fuel. legitimacy criteria are the factors needed categorically listed to account for such Possible factors to address include, but to be examined to make this materials. are not limited to: determination. For example, it is Comment: In the NHSM Proposal, the • The extent that use of the NHSM relevant how the NHSM is managed and EPA recognizes that a material can have has been integrally tied to the industrial its heating value since burning materials levels of contaminants higher than production process. Information can that have minimal or limited heating traditional fuels, but still be combusted include combustor design value shows the material is being for a legitimate, energy-producing specifications, the extent that use of the burned for discard and not energy purpose (see 76 FR 80483 discussing material is integrated across the recovery. In addition, the extent to resinated wood). The EPA also has industry and the extent that use of the which contaminants are present in proposed that this is true for hazardous NHSM is essential to the industrial NHSMs may also indicate that the real secondary materials as well (see 76 FR process, reason for burning the secondary 44094, 44122; July 22, 2011). • The extent that the NHSM is material is simply to destroy or discard Notwithstanding this admission, the functionally the same as the comparable them—referred to as ‘‘sham’’ recycling. EPA is not proposing to amend its traditional fuel, and Thus, the agency is not simply legitimacy criterion for contaminants to • Other relevant factors. ‘‘punting’’ to its legitimacy criteria but make it a consideration, rather than a The application is required to believes they provide a valid basis for mandatory criterion. Thus, the EPA’s include: (1) The petitioner’s name and showing that a NHSM is more NHSM Proposal is internally address; (2) a statement of the commodity-like than waste-like. inconsistent. Under 40 CFR 241.3(d)(iii), petitioner’s interest in the proposed Comment: The current petition any material that has contaminants in action; (3) a description of the proposed process is limited to NHSMs when used concentrations higher than those found action, including the specific NHSM, as fuels. Absent from this petition in traditional fuels is automatically the industry (i.e., NAICS code) and process are NHSMs used as ingredients considered a waste, no matter how functional use (i.e., industrial functional and previously discarded materials that integral the use of the material is to the code listed in 40 CFR 710.52(c)(4)(i)(C)); meet the fuel legitimacy criteria. We do manufacturing process or how and (4) a statement of the need and not understand this distinction and urge legitimate the combustion is to the justification for the proposed action, the EPA to expand both the current and purpose of energy recovery. In contrast, including any supporting tests, studies proposed petition processes to allow for under proposed 40 CFR 241.4, EPA or other information. Where such non-waste determinations for a wider recognizes that materials can have high NHSM(s) do not meet the legitimacy range of NHSMs. levels of contaminants and still be non- criteria, the applicant must explain why Response: In general, the 40 CFR part waste material being legitimately such NHSM(s) should be considered a 241 regulations establishes a self- combusted for energy recovery. To non-waste fuel, balancing the legitimacy implementing approach for NHSM that justify this inconsistency, the EPA criteria with other relevant factors. can consider site-specific information, if argues that it needs to make a case-by- Under this petition process, the necessary (i.e., facilities will make a case determination that a material with Administrator makes a tentative self-determination of whether the non- higher levels of contaminants is a non- decision to grant or deny a petition and hazardous secondary fuel or ingredient waste to ‘‘prevent sham recycling’’ (see then publish notice of such tentative in question meets the regulatory 76 FR 80482). decision, either in the form of an criteria). We note it is the EPA’s Response: The EPA disagrees with the ANPRM, a proposed rule or a tentative intention to indicate in these rules, as comment that the mandatory nature of determination to deny the petition, in clearly as possible, which non- the self-implementing § 241.3 standards the Federal Register for written public hazardous materials used as fuels or (including the contaminant legitimacy comment. The Administrator could, at ingredients in combustion units are or criterion) for individual facilities is its discretion, hold an informal public are not considered solid waste based on inconsistent with the non-waste hearing to consider oral comments on the criteria laid out in regulatory text. determinations outlined in § 241.4. In the tentative decision. After evaluating The agency expects this self- particular, the legitimacy criteria all public comments, the Administrator implementing approach will govern the (including the contaminant legitimacy makes a final decision by publishing in majority of situations, including NHSMs criterion) must be met under the self- the Federal Register a regulatory used as ingredients and NHSMs implementing standards for individual amendment or a denial of the petition. processed from previously discarded facilities outlined in § 241.3, but the Comment: One commenter does not materials. same criteria may be balanced by the support use of the legitimacy criteria, as We would also note that the regulated EPA with other relevant factors under provided in the proposed section community prior to proposing the the categorical non-waste 241.4(b)(3) to make a determination. A December 2011 proposed rule and determinations outlined in § 241.4. material which has not been discarded commenters to that proposed rule did These differences are necessary and is, by definition, not a solid waste. not provide any instances where appropriate. Where a particular NHSM However, if the EPA believes that other may not meet all the legitimacy criteria factors still should be considered, then 85 See 76 FR 15471. outlined in § 241.3(d)(1), but the

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material is being used as a legitimate Response: The agency is not imposing residuals. For resinated wood residuals, fuel, the agency has decided it is a deadline on its decision to grant or the EPA considered that use of that necessary to require a formal deny a petition, or a specific time period material as a fuel has been integrally determination (i.e., not a self- for public comment, due to the tied to the industrial production process implementing decision) to prevent potentially wide range of issues and is consistent with that of a fuel materials from being burned for discard involved in considering a categorical product. The proposal discussed similar under the guise of recycling. non-waste petition and because of the information that was needed by the Furthermore, the agency has decided many factors beyond its control. agency to support adding pulp and that such a determination should be Informal public hearings, similar to paper sludges to 40 CFR 241.4(a) as a subject to public notice and comment. formal public hearings, provide an categorical non-waste. In cases where the difference between opportunity for the public to provide Based on the comments received and recycling and waste treatment is comments and oral testimony on information submitted, the EPA is difficult to distinguish, as is the case proposed agency actions . All testimony listing as a categorical non-waste fuel when elevated levels of contaminants received becomes part of the public under section 241.4 those dewatered are present, the potential for abuse is record. Public meetings, on the other pulp and paper sludges that are not likely, and thus, regulatory oversight is hand, are less formal; anyone can discarded and are generated and burned appropriate when making a waste/non- attend, there are no formal time limits on-site by pulp and paper mills that waste determination. This approach is on statement, and the agency and/or the burn a significant portion of those also consistent with what the EPA facility usually answer questions. The residuals. Such residual must be proposed for the hazardous secondary purpose of the meeting is to share dewatered and managed in a manner to material rule cited by the comment— information and discuss issues, not to preserve the meaningful heating value that is, the balancing test would be used make decisions. of those materials. by the EPA in a petition process, not as Comment: The final rule should make This determination for pulp and a self-implementing determination. clear that the denial of a petition would paper sludge as a categorical non-waste Comment: One commenter requested not bar the filer of the denied petition represents the agency’s finding that, that the EPA should specifically from filing a subsequent petition for the after balancing the regulatory 88 recognize in the categorical petition that same location and same materials. legitimacy criteria with other relevant the existence of a supply contract Response: Where the information factors, the burning of this material as between a generator of NSHMs and a submitted to make a categorical non- described in the categorical listing is a combustor, with specifications that the waste determination has fundamentally commodity fuel for legitimate energy NHSM must meet, should be considered changed, the EPA agrees that a petition recovery and not discard. That is, the dispositive evidence that the NHSM is to categorically list a NHSM can be agency has concluded that, for pulp and not a waste and is combusted for energy resubmitted for review. paper mills that burn a significant recovery, not disposal. portion, pulp and paper sludges are Response: We disagree with the 5. Materials for Which Additional integral to the mills’ operations and commenter that the mere existence of a Information Was Requested provide a critical source of energy. Such contract between the generator and a. Pulp and Paper Sludge combustor is dispositive evidence of the mills are not burning these dewatered In the March 2011 NHSM final rule, material being a non-waste. However, pulp and paper sludges to discard them existence of a contract is a factor to be the EPA concluded that pulp and paper but are burning them as a legitimate considered in a categorical non-waste sludges meet the legitimacy criteria and, commodity fuel. These facilities take the determination. For example, under 40 thus, can be burned as a non-waste fuel steps necessary to dewater the pulp and CFR 241.4(a)(1), scrap tires managed provided such combustion units are paper sludges and to manage the within the control of the generator in dewatered sludge to maintain its under established tire collection 86 programs are a categorical non-waste accordance with section 241.3(b)(1). meaningful heating value and not to and the definition of ‘‘established tire The December 2011 proposed rule dispose of the sludge. In addition, the collection program’’ (40 CFR 241.2) discussed the information we currently agency finds for facilities burning a explicitly recognizes contracts as have on pulp and paper sludges, and the significant portion of the dewatered evidence that the material has not been additional information that the agency sludge that: discarded. Specifically, ‘‘Established would need in order to categorically list (1) The sludges are managed in a tire collection program’’ means ‘‘a these materials in 40 CFR 241.4(a) as a manner that preserves meaningful 87 comprehensive collection system or non-waste fuel. If such information heating value and, therefore, meets the contractual arrangement [emphasis were provided to the EPA, the agency managed as a valuable commodity added] that ensures scrap tires are not would then consider the legitimacy (241.3(d)(1)(i)). discarded and are handled as a valuable criteria and other factors relevant to a (2) Dewatered sludge (i.e., dewatered commodity through arrival at the determination that these sludges are not through appropriate water removal combustion facility* * *’’ solid wastes when combusted. practices, including dewatering presses, Comment: The timeframe for which This categorical listing would put rotary driers, etc.) meets the meaningful the EPA must grant or deny the request pulp and paper sludges in the same heating value and used in combustion should be included as well as defining general grouping as resinated wood the length of time of 30 days that these 88 As the EPA has previously stated (76 FR notices will be open to public comment. 86 Pulp and paper sludges almost entirely remain 15460), the Agency has established regulatory on-site and within the control of the generator when legitimacy criteria which may be used by What is the legal implication of an burned as fuels. To the extent that pulp and paper companies on a case-by-case basis to show that they ‘‘informal public hearing?’’ How does sludges do not remain within the control of the are not discarding material when used in a this differ from a public information generator and are used as fuels, the petition process combustor. However, for the categorical meeting? If it is ‘‘informal,’’ what is the established in 40 CFR 241.3(c) could apply to these determination, the Agency has determined that it is materials, as appropriate. appropriate for the Agency, itself, to make the purpose? What administrative 87 Additional information needed to categorically discard determination for material that does not procedures apply to comments made list pulp and paper sludges is discussed at 76 FR meet the more strict regulatory criteria. Thus, the during the ‘‘informal public hearing?’’ 80485. EPA has developed the categorical determination.

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units that recovery energy criterion generator and meet the legitimacy based on the boiler conditions, fuel (241.3(d)(1)(ii)). criteria, likely are non-waste fuels and availability, energy needs, air quality (3) The sludge meets the comparable thus can be burned in units subject to requirements, as well as costs, and all contaminant criterion (241.3(d)(1)(iii)). CAA section 112 requirements. are considered when the energy The fact that these sludges meet the The agency has restricted the manager determines the right mix of contaminant legitimacy criterion, in the categorical listing to those dewatered fuel in any given day. EPA’s view, show that these sludges pulp and paper sludges that are burned As a result, the quantities of different when burned on-site are not being on-site because the agency has minimal types of fuels burned over the course of discarded. While the agency is not information on how these NHSMs are a year differ and the mill may not burn defining a specific percentage of managed when shipped offsite.91 100 percent of the available fuel dewatered pulp and paper sludges that Outlined below are commenters’ generated during that year. Not all pulp would need to be burned to qualify for responses to the agency information and paper sludges are burned at a given the categorical listing in section 241.4, requests regarding pulp and paper mill over the course of a year nor are all the agency would consider that the 42 sludges and a categorical non-waste recycled process residuals (old mills that responded to an AFPA determination. corrugated cardboard rejects) or all survey 89 and that use dewatered pulp Comment: The EPA requested hogged fuel. The commenter and paper sludge as fuels at a significant information on how pulp and paper mill emphasized that if only a percentage of rate (between 70–100 percent of these sludge is used as a legitimate fuel and a secondary material generated by the materials that are generated and burned) not discarded at pulp and paper mills industry is used as a fuel, that it does meet the listing description. We also and how the material is integrated into not negate its value as a fuel. Rather, it find that other mills that burn a the industrial production process. reflects the realities of running a boiler significant portion of their dewatered In responding to the agency’s request, for which the economic and operating pulp and paper sludges on-site as fuel commenters first provided a summary of conditions are interconnected and would qualify for the listing energy needs by the pulp and paper dynamic. description.90 For the pulp and paper industry. The commenters indicated For example in one mill, the mills that burn a relatively small that the industry is somewhat unique in commenter indicated that combination percentage of their dewatered pulp and its energy profile and in how individual boilers are designed to burn a wide paper sludges on-site as a fuel (e.g., the mills select appropriate fuels to support variety of fuels efficiently and cleanly. five mills that responded to the AFPA their energy needs. Most pulp and paper Two mills’ boilers currently burn tire- survey that burn less than 20 percent), mill boilers are specifically designed to derived fuel,92 while one burns waste the agency has determined that those handle a variety of fuels; few boilers are paper generated at the mill. They all are sludges are not viewed the same by the designed to burn just traditional fuel. capable of burning one or more fossil mill operator in that they do not need Even mills with boilers specifically fuels: oil (including used oil), coal and to rely on them for their energy value permitted as pulp and paper sludge gas. The four combination boilers burn and are not included in the non-waste boilers also burn other fuels. Over the large amounts of biomass, either categorical listing in section 241.4. years, the industry has recognized the generated on-site or purchased However, there is likely little benefits of burning secondary materials, commercially. A portion of three of the difference as to how pulp and paper particularly those generated on-site. mills’ biomass consists of sludge sludge may be defined under NHSM These secondary materials are derived generated on-site from their wastewater rules, whether a categorical or a facility- from and have characteristics similar to treatment processes. specific non-waste determination. That traditional fuel, particularly the biomass One state commenter also indicated is, such dewatered pulp and paper used to produce pulp and paper that most mills operate boilers that are sludges may still be considered non- products. specifically designed to handle a variety waste fuels when burned as a fuel for Mills do not usually burn just one of fuels—few boilers are designed to energy recovery at mills that burn a type of fuel at any one time. Some mills burn just traditional fuel and mills do relatively small percentage of these rely heavily on coal, others on natural not usually burn just one type of fuel at materials, although the rules require gas or biomass. According to the any one time. Bark and biomass fuel those facilities to document on a commenter, the choice of fuel depends may be the primary fuel but it is facility-specific basis that such sludges on availability, cost and need. Hogged supplemented by other traditional or are non-waste fuels. As discussed in the fuel or coal may be the underlying fuel alternative fuels. final NHSM rule (76 FR 15488), but it is supplemented by other Secondary materials have been an dewatered pulp and paper sludges that traditional and non-traditional fuels. important alternative fuel used safely by are burned within the control of the This is done in order to meet the energy the mills in the commenter’s state for needs of the mill but also to address best many years. Most of that state’s mills’ 89 See April 2, 2012, letter from Timothy G. Hunt management practices for the boiler and have multi-fuel boilers. Their fuel to James Berlow. A copy of this letter has been placed in the docket for today’s rulemaking. meet air quality requirements. If the handling equipment, mill wastewater 90 While the Agency is not including a specific hogged fuel is wet, coal or resinated treatment systems and other ancillary requirement for pulp and paper mills to document wood may be added to boost heat value. equipment were designed to combust the amount of dewatered wastewater treatment If the boiler is burning too hot, the alternative fuels, including pulp and residuals they burn on-site as a fuel, we would recommend that such pulp and paper mills include addition of pulp and paper sludge paper sludge. Use of these fuels reduces such documentation in case there are any questions enables the mill to regulate temperature. reliance on purchased biomass and/or as to whether the pulp and paper mills dewatered Pulp and paper sludge also may be fossil fuels and provides a vehicle for wastewater treatment residuals qualifies for the burned because it has the best fuel value beneficial of the materials. In light categorical listing in 241.4. As an alternative, the pulp and paper mill can request the Agency to for the price. All of these decisions are of the greater stringency of the CISWI confirm (via letter) that the facility generates and burns on-site a significant portion of pulp and 91 We note that in the situation where pulp and 92 Tire-derived fuel used in the paper industry paper sludges such that the facilities pulp and paper sludges are transferred beyond the control of must be dewired since the wires often clog the feed paper sludges are included within the categorical the generator, a facility can petition the Agency to system. Thus, the industry does not utilize whole listing. receive a non-waste determination, as appropriate. tires.

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regulations, the state indicated that the the sludge from its process than the bark not exposed to the elements while being mills are likely to landfill these it also generates. conveyed to the boilers. After its materials instead of recovering their fuel At another plant, the commenter removal from wastewater treatment, no value if these materials are considered indicates that sludge is a by-product of sludge touches the ground until it is solid waste under the CISWI standards. the AST process. Their mills employ burned, beneficially used (e.g., recycled Another industry commenter stated primary clarifiers to separate out solids feedstock to make newsprint) or that four of their five U.S. pulp mills from wastewater, of which 50 percent is landfilled. produce wastewater treatment residuals wood fiber, the primary component.93 The commenters indicate that the that are burned in biomass-fired These solids are staged in holding or moisture content of biomass is highly combination fuel boilers. At one mill, blend tanks prior to drying. In addition variable. Operators control fuel use the residual solids are harvested and to primary clarifiers and aeration basins, based on the mill’s need for steam and sold under a purchase agreement to an AST systems employ secondary electricity, fuel costs, fuel quality and Electric Utility Generating plant burning clarifiers (large, open, circular concrete fuel availability. All factors can change various sources of biomass because that tanks) in which biological solids exiting at a moment’s notice since the mill does not have a biomass boiler the aeration basin(s) are separated by production process is constantly designed to burn the residuals. The gravity from wastewater. The process is changing. Pulp and paper production residuals are primary clarifier solids carefully regulated to accomplish two swings or curtailments are common. (mostly wood fibers too short for objectives: making the water as clean Energy demand, fuel cost or fuel quality product use) which are harvested by and free of solids as possible while may make it necessary or desirable to dewatering through a screw press. The retaining activated sludge (active reduce biomass and sludge combustion, residuals are stockpiled in a specific microbes) to re-inject into the biological even to switch entirely to fossil fuels. managed area before being trucked to treatment stage of the process. As part Environmental emissions occasionally the power company. At that site, the of this continuous loop, some activated can be a factor in fuel use, particularly materials are processed and conveyed sludge must be removed from the during boiler startup or shutdown, or with other forms of biomass for fuel in system to maintain the optimal when the mill is experiencing rapid their biomass boiler. Use of the population of active microbes for fluctuations in steam demand. Response: Based on the information wastewater treatment residuals from the effective treatment. submitted, and as discussed further in mill as a fuel at the purchasing site is After excess secondary sludge is our responses below, the EPA is listing permitted in their air permit. removed from the treatment loop at as a categorical non-waste fuel under One commenter indicates that the three of the mills, it is mixed with section 241.4 dewatered pulp and paper energy manager at a mill will determine primary sludge in blend tanks prior to being dried on belt presses to a suitable sludges that are not discarded and are the approximate amount of different generated and burned on-site by pulp types of fuels needed to obtain the most moisture level for burning or other uses. Sludge is introduced into the mills’ and paper mills that burn a significant energy under the best operating portion of such materials where such conditions. As pulp and paper sludge is solid fuel feed systems by means of conveyers where it becomes thoroughly dewatered residuals are managed in a generated, it is directed toward the manner that preserves the meaningful hogged fuel pile or towards other non- mixed with other fuels in the conveyer systems before being introduced into the heating value of the materials. fuel uses. This decision is based on This determination for pulp and mills’ combination boilers. At one mill, whether the mill’s boiler is designed paper sludge as a categorical non-waste primary sludge is dried separately by and permitted to burn pulp and paper fuel represents the agency’s finding, means of screw presses while secondary sludge and the amount is determined by after balancing the legitimacy criteria sludge is dried using a belt press. The the energy demands on that particular with other relevant factors, that those two fuels are fed separately by day. mills that burn a significant portion of conveyers onto the mill’s main solid Another commenter believes that the these pulp and paper sludges are fuel conveyer which the bark/ fact that not all pulp and paper sludge burning them as a commodity fuel for sludge mixture to a surge bin. The fuel is combusted at pulp and paper mills is energy recovery and not discard. The is passed through a ‘‘ dryer,’’ evidence that the wood products discussion above indicates that these where it is briefly exposed to boiler flue industry only combusts pulp and paper mills have been designed to utilize pulp gas before being fed into the sludge for legitimate energy recovery and paper sludges and use of that combination boiler. The process at all and not for disposal. According to the material as a fuel is an integral part of four mills is continuous. Operators commenter, when the pulp and paper facility operations. Decisions regarding monitor and manage the sludge on a 24 sludge is not needed as a fuel, it is used use and the right mix of fuel in any hour basis. Sludge drying takes place for non-fuel purposes or is discarded. given day are based on the boiler entirely within buildings where the When it is combusted, it is combusted conditions, fuel availability, energy tanks, pipes, mixers, pumps, polymer for its energy value as a legitimate fuel. needs, air quality requirements and cost. One mill described by a commenter feed systems, conveyers, presses, Comment: The EPA requested has elected to divert its own-make bark diversion gates and valves, monitoring information on the amount of pulp and to beneficial use as mulch, rather than devices and other equipment necessary paper sludge burned as fuel. burning it, because it is of poorer quality to produce suitable sludge are housed. In 2010, members of AF&PA burned than commercially available biomass. Sludge burned in the boilers is 772,034 dry tons of pulp and paper That same mill has recently invested in transported to the boilers on feed sludge, which represents approximately a new belt press which provides high systems designed to ensure sludge, 25 percent of the pulp and paper sludge quality sludge as fuel for its biomass and other solid fuels are generated by members of AFPA during combination boiler. Since the press was homogeneous, thoroughly mixed and the year.94 However, approximately 90 installed in 2011, the percentage of mill percent of the AF&PA member facilities 93 Washington State Department of Ecology sludge burned has increased to 80 Industrial Footprint Project Waste Stream that responded to their survey (42 out of percent from under 50 percent. Reduction and Re-Use in the Pulp and Paper Currently, the mill is burning more of Sector, June 2008. 94 Docket EPA–HQ–OAR–2003–0119–2619.

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47) that use dewatered pulp and paper are generated, the facility is clearly sludges are not viewed the same by the sludge as fuels do so at a significant rate dependent upon the use of these mill operator in that they do not rely on (between 70–100 percent of these materials as fuels in much the same way the sludges for their energy value. As materials that are generated are burned). that wood manufacturing facilities are noted by one commenter, some mills In fact, one third of the AF&PA facilities dependent upon the stream of resinated may not produce pulp and paper sludge that responded to their survey (16) that wood residuals to meet their energy with sufficient fiber, such that the burn pulp and paper sludges, burn 100 demands. Specifically, we note that the sludge is a viable fuel. Therefore, the percent of the materials generated.95 percentage of overall use of pulp and agency finds that such pulp and paper Response: As the commenter paper sludges as a fuel at facilities sludge should not be included in the indicates, while 25 percent of pulp and burning a significant portion of the categorical listing in section 241.4.98 paper sludges that are generated are material (70 percent in the AF&PA Those companies would need to make used as fuels on an industry-wide basis, comment above) is similar to the use of case-by-case determinations regarding the vast majority of facilities that resinated wood within the wood legitimacy to support use as a fuel. responded to the survey that use products industry—approximately 73 Comment: The EPA requested more dewatered pulp and paper sludges as percent of resinated wood generated is data on contaminant levels— fuels do so at a significant rate. In light either used as a fuel or is recycled back particularly chlorine and metals. 96 of the information on use of pulp and into the wood manufacturing process. The NCASI undertook a thorough paper sludges, the agency finds that for As noted above, mills that burn a evaluation of data related to those pulp and paper mills that burn a significant portion of their dewatered contaminant levels in pulp and paper significant portion, that their use as a pulp and paper sludges on-site as fuel sludge.99 NCASI looked at the most legitimate fuel is integral to the in the future would also qualify for the 97 robust information about pulp and operation of the pulp and paper mill. listing description. paper sludge which is found in the The fact that these sludges meet the On the other hand, when a pulp and EPA’s Boiler MACT database. That contaminant legitimacy criterion also, in paper mill burns a relatively small database has pulp and paper sludge data the EPA’s view, shows that these percentage of their dewatered pulp and comprised of nearly 5,280 records of sludges when burned on-site are not paper sludges on-site as a fuel (e.g., the individual data points corresponding to being discarded. five mills that responded to the AF&PA 46 AF&PA member pulp mills. As discussed above, while the agency survey that burn less than 20 percent), is not defining a specific percentage of the agency has determined that such Table 8 of this preamble includes data dewatered pulp and paper sludges that from the EPA traditional fuels table as would need to be burned to qualify for 96 See Materials Characterization Paper In well as the EPA Boiler MACT database the categorical listing in section 241.4, Support of the Final Rulemaking: Identification of for pulp and paper sludge. Nonhazardous Secondary Materials That Are Solid BILLING CODE 6560–50–P the agency would consider the 42 mills Waste—Resinated Wood Products. Docket EPA– that responded to the AF&PA survey as HQ–RCRA–2008–0329–1820. 98 meeting the listing description. Where a 97 While the Agency is not including a specific The Agency acknowledges that some portion of facility has burned or burns in the requirement for pulp and paper mills to document these pulp and paper sludges are land applied. While the Agency considers such uses as beneficial, future a significant portion of the the amount of dewatered wastewater treatment residuals they burn on-site as a fuel, we would such recycling is not integral to pulp and paper dewatered pulp and paper sludges that recommend that such pulp and paper mills include operations, and therefore, the Agency would not such documentation in case there are any questions consider this form of recycling in determining 95 See April 4, 2012, letter from Timothy G. Hunt as to whether the pulp and paper mills’ dewatered whether a facility is recycling a significant portion to James Berlow. A copy of this letter has been wastewater treatment residuals qualifies for the of their pulp and paper sludges. placed in the docket for today’s rulemaking. categorical listing in 241.4. 99 Docket EPA–HQ–OAR–2003–0119–2619.

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The commenter indicates, as shown and without Mn between coal, biomass of these sludges is typically in the in the table, that contaminant levels in and pulp and paper mill sludges. inorganic sulfate form that pulp and paper sludge are well within Chlorine and total halogens (Cl + Fl) in predominantly ends up in the the ranges of metals found in traditional sludge compare favorably with both combustion ashes. fuels. For all 11 HAP metals, except Mn, biomass and coal. Nitrogen and sulfur in NCASI found a paucity of data on the 90 percent UPL value for sludges is sludge also compare favorably with organics in pulp and paper sludge. less than the corresponding maximum coal, although the commenter also Except for Ds/Fs, which had been for coal. For Mn, which is principally points out that the nitrogen and sulfur evaluated extensively in the 1990s, derived from biomass, the 90 percent contents are generally not indicative of organics are not expected to be found in UPL value for sludges is well below the HAP formation potential for any fuel, pulp and paper sludges. Due to the maximum for biomass. This is also and in the case of pulp and paper mill changes in bleaching techniques which reflected in the TSM comparisons with sludges in particular, the sulfur content demonstrated significant reductions in

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the existence of Ds/Fs in sludge, testing control to optimize the sludge’s proposal, the overwhelming majority of for even dioxins has not been moisture content. pulp and paper mills remove water from undertaken recently. NCASI notes that Another commenter stated they pulp and paper sludge prior to of the data that do exist, organics are invested over $3 million to prevent managing it in any way. Belt and screw rarely found and those that are unwanted materials from reaching the presses are most commonly used in the identified are frequently below the treatment process and being discharged industry. Some mills use steam heated detection limit. in mill effluent or being incorporated filter presses. Some pulp and paper Overall, the commenter states that into the pulp and paper sludge. Their sludge is also further dried in steam contaminant levels in pulp and paper mills make coated paper products, the heated rotary driers. As indicated wastewater treatment residuals compare coatings consisting largely of clay and previously, sludge drying takes place well to those found in traditional fuels. other minerals. Improved equipment entirely within buildings where Response: Based on the information and operating procedures have equipment necessary to produce provided, the agency finds that pulp significantly lowered sewer losses of suitable sludge is housed. Sludge and paper sludges, meet the comparable these materials, improving the quality of burned in the boilers is transported to contaminant criterion (241.3(d)(1)(iii)). wastewater and reducing the ash the boilers on feed systems designed to The data confirms the conclusions in content of these pulp and paper sludges. ensure sludge, biomass and other solid the NHSM final rule regarding chlorine To further , their fuels are homogeneous, thoroughly and metals are comparable to the levels mills set stringent specifications for raw mixed and not exposed to the elements found in coal, which is a traditional fuel materials, such as sulfuric acid and while being conveyed to the boilers. In that may be burned in these facilities. caustic soda, which minimizes the all instances, the goal is to raise the Comment: The EPA requested introduction of trace amounts of heavy solids content—and thus, Btu value. information on what steps the industry metals into the process. Response: Based on these comments From the standpoint of process has taken to ensure the quality of pulp and other information in the record, the control, the commenter stated that and paper mill sludge when used as a agency finds that facilities that burn a sludge management processes are fuel at pulp and paper mills is significant portion of these materials continuous, enclosed and carefully consistent with that of a fuel product. take the steps necessary to dewater the controlled. In contrast, bark and wood pulp and paper sludge and to manage Commenters state that pulp and paper chips may be exposed to the elements such dewatered sludge to maintain its mills that generate pulp and paper for extended periods before being meaningful heating value and burn the sludge do so as part of their compliance burned. Depending on the season, sludge for energy recovery. with the CWA requirements, as well as hardwood bark can get ‘‘stringy’’ and Comment: The EPA requested part of an effort to return as much wood become very difficult to process as fuel. information on how pulp and paper mill fiber to use as possible, either as an Frozen bark or chips can jam or disable sludge is managed when shipped offsite. input to the manufacturing process or as equipment. Purchased fuel can have There are several mills within the a fuel. The strategies that each mill uses excessive rocks or grit. It is difficult to industry that have agreements with to meet those requirements differ control the quality of biomass burned in other facilities, primarily electric depending upon the type of product, the the commenter’s boilers. Sludge utilities that purchase pulp and paper location of the mill and the specific frequently exhibits less variability in sludges for use as biomass-based fuel. standards established by the EPA and quality than other types of biomass. For the most part, these arrangements the respective states. However, mills Response: Based on the information occur when there is a utility close to the clean wastewaters prior to discharge, provided, the agency finds that, for pulp and paper mill because the cost of thus creating primary and a variety of facilities burning a significant portion of shipping such sludges long distances secondary pulp and paper sludges, all of the dewatered sludge, use of the may be prohibitive. Pulp and paper which capture wood fibers. material is integral to the facility’s sludges may be sent offsite when it is Furthermore, the question of whether operations, particularly in the value being used by other entities to produce the quality of the pulp and paper sludge these materials provide as a critical another product, (including fuel is appropriate for a particular mill is source of energy. At such facilities, pellets 100), used for other purposes based on the boiler design. As such, sludge management processes are (land application, use as landfill cover), there are some boilers well suited to carefully controlled and the industry or for final disposal. Pulp and paper burn it; others cannot burn the material. has taken the necessary steps to ensure sludges are shipped by containers, truck At one commenter’s mill, for example, the quality of pulp and paper mill or rail. the company has invested over $7 sludge when used as a fuel at pulp and Response: The agency recognizes that, million upgrading sludge drying and paper mills. On the other hand, for as described above, some pulp and management equipment. The object of those pulp and paper mills that do not paper sludges are sent offsite for use as these large investments was not to burn a significant portion of their a fuel. However, the agency has remove all of the moisture in the sludge. dewatered wastewater treatment restricted the categorical listing to those Rather, it was to make sludge quality sludges, the agency does not believe that pulp and paper sludges that are burned consistent with that of the wet biomass the same steps have been taken to on-site because the agency has minimal burned in its combination boilers. Either ensure the quality of the pulp and paper information on offsite use of these too much or too little moisture can have mill sludge that is used as a fuel and materials. In fact, the pulp and paper a deleterious effect on the boilers’ thus, is not an integral part of the pulp industry indicates that the great combustion. One mill recently installed and paper mill operations. majority of these sludges, when burned a belt press to improve the reliability of Comment: The EPA requested as a fuel, are burned on-site. Also, in the its sludge management system and information on what are the standard few instances that the pulp and paper increase the average solids content of its practices used to ensure pulp and paper sludge. Since then, the sludge has sludge has meaningful heating value. 100 When pulp and paper sludges are sufficiently occasionally caused combustion As noted in the October 2011 pulp processed, and such processed material meets the legitimacy criteria, the processed materials are non- problems in the boiler because it was and paper sludge paper the AF&PA waste fuels whether burned within or outside the too dry, necessitating additional quality submitted prior to the December 2011 control of the generator.

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industry discussed in their comments it assumes—as, indeed, the record ‘‘wastewater’’ stream. The D.C. Circuit that these materials were shipped shows some sludge does—and should in, API v. EPA, 216 F.3d at 58, rejected offsite, they seem to be sent to other take steps to ensure that this is not the the proposition that the mere presence industries. The fact that these sludges case before it even considers an in a wastewater stream makes a material are sent to other industries would not exemption. Indeed, the agency’s failure a waste. In API, the D.C. Circuit necessarily disqualify those dewatered to examine this possibility renders the criticized the EPA for not saying why it pulp and paper sludges from being existing rule, which allows generators to concluded that the disposal motivation, considered for listing categorically. burn their own sludge, arbitrary and compliance with However, the agency does not have capricious. standards, predominated over the sufficient information to make any Fourth, the EPA admits that sludge recycling motivation, recovery of oil determination.101 contains extremely low heating values, from primary wastewater treatment. Comment: For reasons stated so low in some instances as to flunk the Plainly, the mere presence of oily previously in comments on the June agency’s legitimacy criteria. That material in wastewater did not make the 2010 proposed rule, one commenter sources typically dewater their sludges oil a waste. In this case, the EPA has argues that pulp and paper sludges are does not make these sludges any less a found in its categorical listing that the waste when burned regardless of waste, even under the agency’s own motivation for burning the pulp and whether it is burned by the company definition of discard. The EPA does not paper sludge is to use its inherent value that generated it and regardless of say what the heating value of the as a fuel and not for disposal. Comments whether it meets the EPA’s legitimacy sludges is after dewatering, nor does it have provided the agency with criteria. Paper mill sludge is a waste make any difference what the ‘‘dry information that facilities that burn a because it is discarded within the weight’’ heating value of sludges might significant portion of these sludges meaning of RCRA. be, as they are not at ‘‘dry weight’’ when consider them to be an integral part of The EPA’s description of pulp and burned. The reality is that paper mills their production process, particularly in paper sludge shows that it remains a find it cheaper to burn their sludges the value these materials provide as a waste even under the agency’s own than to dispose of them safely and that critical source of energy. We disagree definition of discard. First, the EPA because these sludges are largely that the disposal motivation acknowledges that pulp and paper mills ‘‘wastewater’’ and contain high levels of predominates over the true value of have no use for pulp and paper sludge; chlorine and other contaminants, these sludges as an important fuel, the fibers it contains are ‘‘too short to be burning them requires large quantities integral to the production processes. suitable for papermaking and it contains of other fuel and generates high levels The EPA also disagrees that the microorganisms that feed on organic of pollution. treatment of the variability of emissions material in the wastewater stream.’’ 102 Response: The agency disagrees with for floor setting and of the chlorine Second, the fact that paper mill sludge the commenter that all pulp and paper levels in pulp and paper sludge for the comes from ‘‘the wastewater stream,’’ 103 sludges are waste fuels when purposes of considering a categorical in itself confirms that it is a waste. combusted. To the extent comments declaration that such sludge is not a Third, the EPA’s discussion of the were submitted in response to the waste, is unexplained and arbitrary. The contaminant levels in paper mill sludge March 2011 final rule, the agency need agency notes that, rather than shows substantial variation in chlorine not respond. Below, the EPA responds dismissing the variability of chlorine levels. Where the EPA encounters such to the new points raised in the levels in pulp and paper sludges, it has variability in the course of setting floors comments. considered all available data—including for CISWI units in the very same With respect to the particular data on variability—and reached the Federal Register notice, the agency uses arguments on the categorical listing, the conclusion that contaminant levels in a 99th percent UPL to assure that the agency disagrees that the sludge remains pulp and paper sludges are comparable level it chooses will not be exceeded. a waste even under the agency’s own to or lower than those in the appropriate Yet, where the EPA encounters definition of discard. The comment is traditional fuel(s). The EPA variability in the chlorine levels in pulp incorrect when it states that the EPA has acknowledges that, based on data and paper sludge—variability that could acknowledged pulp and paper mills submitted to the agency since lead to significantly higher emissions of have no use for pulp and paper sludge promulgation of the March 2011 final chlorinated pollutants, such as HCl and because the fibers it contains are ‘‘too rule and presented in the December dioxins—the agency simply dismisses it short to be suitable for papermaking and 2011 proposed rule, chlorine levels in without further ado. The EPA’s it contains microorganisms that feed on paper mill sludge show substantial disparate treatment of the variability of organic material in the wastewater variation. This is an important factor to emissions for floor setting and of the stream.’’ 104 In the proposed rule, we consider when making a categorical chlorine levels in pulp and paper sludge stated that fibers that end up being too non-waste determination and the agency for the purposes of considering a short can be detrimental to paper has considered mean concentrations, categorical declaration that such sludge quality. Although this would not be the range of concentrations, and is not a waste is unexplained and suitable for papermaking, these sludges variability when analyzing pulp and arbitrary. are a valuable resource as energy- paper sludges. If the agency believes that such containing secondary materials as As stated in the proposed rule and variability exists, it should be concerned discussed in detail in the comments information in the rulemaking record, about the possibility that some sludges above. As much as 50 percent of the data for pulp and paper sludges show may have far higher chlorine levels than sludge is composed of wood fibers mean chlorine concentrations of 361 which are similar in content to other ppm, well below the mean of 992 ppm 101 We note that in the situation where pulp and types of biomass fuel combusted. observed in coal. Data for pulp and paper sludges are transferred beyond the control of Further, the agency disagrees that paper sludges also show maximum the generator, a facility may also petition the Agency to receive a non-waste determination, as pulp and paper mill sludges are wastes chlorine concentrations of 4,800 ppm, appropriate. because they are contained in a well below the maximum of 9,080 ppm 102 See 76 FR 80485. observed in coal and below the 103 Id. 104 See 76 FR 80485. maximum of 5,400 ppm observed in

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untreated wood and biomass materials. the heating value of these materials.108 Since promulgation of the 2011 NHSM The variability of chlorine levels in pulp Thus, we find, as discussed in the final final rule, the agency has further and paper sludge is demonstrated by a rule, that pulp and paper sludges are not clarified that it believes that coal refuse standard deviation of the mean of 661 discarded and generally meet the recovered from legacy piles that is ppm.105 106 This variation in chlorine meaningful heating value legitimacy processed and managed in the same levels, although high, does not discount criterion (46 FR 15488). manner as currently generated coal the fact that both average and maximum refuse satisfies the legitimacy criteria.113 b. Coal Refuse 109 chlorine concentrations in pulp and Having determined that coal refuse paper sludge are lower than those in In the 2011 NHSM final rule, the EPA recovered from legacy piles that is coal which is defined as a traditional included currently generated coal refuse processed and managed in the same fuel. within the definition of traditional fuel manner as currently generated coal The comment also implied that the codified in 40 CFR 241.2. In discussing refuse satisfies the legitimacy criteria, EPA should use the 99 percent UPL, as its determination that currently the 2011 proposed rule solicited is used to set the CISWI floors, to ensure generated coal refuse is a traditional comment on whether to categorically that these pulp and paper sludges do fuel, the agency said, ‘‘the fact that coal list post-processed coal refuse from not contain excessive contaminant refuse has been used and managed as a legacy piles as a non-waste fuel in 40 levels. The agency disagrees that any fuel for thirty years when coupled with CFR 241.4(a). However, the EPA made one statistical tool or comparison the fact that coal refuse is unique from it clear that it was not reopening any methodology will fit every situation other non-hazardous secondary other issues regarding coal refuse. Other given the variety of NHSMs, traditional materials in that it is a byproduct of fuel comments regarding coal refuse are fuels, contaminants and combustion production processes and is itself a raw responded to in the record for the final units that exist. Nevertheless, the material that can be used as a fuel leads rule. In this part of the preamble, we are agency has calculated the 99 percent us to determine that coal refuse that is only responding to the issue of whether UPL for chlorine levels in pulp and currently generated and used as a fuel coal refuse processed from legacy piles paper sludge in response to the should be considered a traditional should be considered a non-waste fuel comment and come to the same ‘alternative fuel.’ ’’ 110 on a categorical basis. Accordingly, the conclusion. The 99 percent UPL for the The 2011 NHSM final rule also EPA is not responding in this preamble same dataset of 93 samples analyzed in determined that coal refuse that has or the Response to Comment document the proposed rule would be 6,970 ppm, been placed in legacy piles would not on issues regarding whether coal in a value below chlorine concentrations meet the definition of traditional fuels, legacy piles are traditional fuels. observed in coal.107 as they clearly have been discarded in Comment: One commenter states that Finally, we disagree that pulp and the first instance.111 Since coal refuse not every material that is discarded is paper sludge contains extremely low recovered from legacy piles is subjected treated as solid waste under the rule. heating values that would fail the to the same operations that are used to For example, the EPA includes agency’s legitimacy criteria. In terms of process virgin coal, which serve to both numerous materials within its definition meeting the legitimacy criteria for a increase energy values, as well as of ‘‘traditional fuels’’ and ‘‘clean meaningful heating value, the agency reduce contaminants, the EPA cellulosic biomass’’ that are commonly indicated in the NHSM final rule that determined that such processes were understood as used, discarded, and pulp and paper sludges have a heating sufficient to meet the definition of abandoned, listing, for example, corn value of between 3,300–9,500 Btu/lb, on ‘‘processing,’’ as codified in 40 CFR stover, peanut shells and certain types a dry basis—no specific information 241.2, and such recovered coal refuse of demolition materials. The commenter having been submitted on the ‘‘as fired’’ would not be considered a solid waste argues that each of these materials is heating value of these materials. The when used as a fuel in a combustion either discarded or has filled its original final rule concluded that pulp and unit provided those materials satisfy the purpose and may be collected by a 112 paper sludges meet the legitimacy legitimacy criteria. different party for a different purpose criterion for being managed as a The 2011 NHSM final rule also stated (i.e., use as a fuel). valuable commodity as they are our belief that coal refuse recovered The commenter continues that dewatered to increase their energy from legacy piles contains contaminants although the agency has ample authority value, collected on a continual or at levels that are comparable to or lower to exempt certain articles from frequent basis (as produced), and further than coal refuse that is currently classification as solid wastes, it did not generated, as the recovered coal refuse processed and consolidated, including consistently apply the term ‘‘discarded’’ is subject to the same processes as the removal of . Further, as in the context of legacy coal refuse. For currently-generated coal refuse in order discussed in detail above, where a example, the EPA recognized that on- to meet the same fuel specifications. facility is burning a significant portion specification used oil and clean C&D of the dewatered pulp and paper materials should be treated as 108 The final rule notes that meaningful heating sludges that are generated as fuel rather value is derived from an NHSM with energy content traditional fuels when combusted for than other purchased biomass or fossil lower than 5000Btu/lb if the ERU can cost- energy generation. Thus, the commenter fuels, pulp and paper sludges are effectively recover meaningful energy from the urges the agency to revisit its integral to the facility’s operations and NHSM used as fuel (76 FR 15541). application of the ‘‘discard’’ principle 109 Coal refuse refers to any by-product of coal and treat all coal refuse, regardless of the facility is clearly dependent upon mining or coal cleaning operations, consisting primarily of non-combustible rock with attached when they were generated and 105 See 76 FR 80485. coal. Due to advances in technology over the past regardless of processing to be fuels and 106 Contaminant Concentrations in Traditional century, the processing of coal has evolved, such not wastes. Fuels: Tables for Comparison, November 29, 2011, that materials that are now generated in the coal Response: The EPA disagrees with the mining process, which would have been considered can be found at http://www.epa.gov/epawaste/ comment, which seems to nonhaz/define/index. rejects in the past and discarded in 107 The 99 percent Chebyshev UPL for non- waste piles, are now handled and processed as coal. misunderstand the purpose of this normal datasets was calculated using EPA’s ProUCL 110 See 76 FR 15507. 4.0 Software available at http://www.epa.gov/ 111 Id. 113 See August 15, 2011, letter to Jeff A. McNelly, nerlesd1/tsc/software.htm. 112 See 76 FR 15509. ARIPPA (cited in the proposed rule: 76 FR 80486).

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rulemaking action. If the agency corn stover and other primary and historically managed as a waste. On the determines in this rulemaking that a secondary agricultural residues is for other hand, the agency has information material is a solid waste when use as a heat and power source for the that tire manufacturers that have combusted, the unit combusting that production of corn and cellulosic produced off-specification tires material would be subject to emissions ethanol.’’ 116 When the determination is (including factory scrap) have standards issued under CAA section 129 made to use corn stover for its fuel contractual agreements in place to even if burned as a fuel. A material is value, the materials are managed ensure these materials are collected, not discarded simply because it is no differently than merely ‘‘left in the field managed and transported to the longer used for its original purpose. It to decay.’’ If there were legacy piles of combustor. In fact, it is the requirement may be used as a fuel product by such materials, they too would have to that scrap tires (including off- another party, providing the conditions be treated as wastes while in the legacy specification tires) be managed pursuant the EPA has explained in the rule apply. piles. We would also note that it is not to established tire collection programs In such a case, the reused material is not unreasonable to expect that agricultural that ensures these materials are a waste. Further, the agency is not materials, such as corn stover, may be managed as a valuable commodity in exempting any materials from the left on the field until there are sufficient order to meet the categorical non-waste definition of solid waste. The EPA is amounts of those materials to be determination codified in 40 CFR part only describing the kinds of materials collected, baled and transported. This is 241.4(a). that are wastes when burned in clearly a different scenario from coal Further, as we have noted elsewhere combustion units, even if they are refuse left in place in piles with no in today’s preamble, to the extent that burned for energy recovery. The EPA purpose other than abandonment and these off-specification tires are consistently applies the concept of clearly managed as a waste for decades. discarded, such as in tire piles, they ‘‘discard.’’ With respect to used oil, the agency would be considered solid waste in that Materials listed as examples of clean has already explained in the final March they have been discarded, and would cellulosic biomass cited by the 2011 rule the difference between on- not be included within the categorical commenter have not been discarded in specification and off-specification used listing of ‘‘scrap tires that are not the first instance, as is clearly the case oil as applied to the definition of solid discarded and are managed under the for coal refuse abandoned in legacy waste. The on-specification used oil is oversight of established tire collection piles. While some materials have filled considered an alternative fuel that has programs, including tires removed from their original purpose, that fact, in and not been abandoned and, by regulation, vehicles and off-specification tires.’’ of itself, does not equate to discard. may be burned with no more Comment: One commenter states that Clean cellulosic biomass is considered restrictions than refined product oil. the EPA, consistent with the intent of to be a type of ‘‘alternative fuel’’ within Off-specification used oil is specifically RCRA, should be encouraging the use of the definition of ‘‘traditional fuel.’’ Such described in the EPA’s regulations as a legacy coal refuse, not hampering them. alternative fuels are developed from material that may only be burned in The commenter argues that virgin materials that can now be used as certain combustors because it exceeds characterizing coal refuse in legacy piles fuel products.114 This applies to the contaminant levels established under as a solid waste could subject legacy examples mentioned by the commenter, part 279, rendering it off-specification coal refuse piles to additional federal including corn stover, peanut shells and and, accordingly, evaluated under part and state requirements and potentially clean construction and demolition 241 to determine its waste/non-waste result in the piles being classified as wood. Further, coal refuse mined today status.117 open dumps or solid waste management that would have previously been Comment: One commenter argues that units. Further, combustors of legacy coal abandoned in piles are also alternative off-specification tires are analogous to refuse and their suppliers would also be fuels that are now grouped in the legacy coal refuse to the extent they are more likely to be subject to citizen suits traditional fuel category because of new set aside and not used immediately by under RCRA 40 CFR 7002. This technology. This is separate from coal in the factory. Since the agency proposes commenter argues that the legacy piles that have been traditionally to include off-specification tires within determination that unprocessed legacy wastes. the definition of ‘‘established tire Further, there is a clear difference piles are different—and should be collection program’’ and not consider between the management of the listed regulated differently—than coal refuse these materials to be a solid waste when examples of clean cellulosic biomass generated from current mining used a fuel, the agency should treat and coal refuse abandoned in legacy operations is illogical because the legacy coal refuse similarly. piles. For example, the commenter characteristics of the materials are the Response: We disagree with the characterizes corn stover as ‘‘typically same. Thus, although the EPA takes the commenter that coal refuse abandoned left in the field to decay’’ and thus position that subjecting legacy coal to in legacy piles is analogous to the discarded. The EPA assumes this the types of operations that are used to handling and management of off- statement is based on the historic use of process virgin coal is sufficient to specification used tires. Coal refuse that leaving corn stover in the field as a convert the legacy coal refuse from solid has been placed in legacy piles decades cover to reduce erosion and for nutrient waste into a non-waste fuel, the initial ago has clearly been abandoned, thrown content.115 designation as solid waste risks As noted by the agency away and thus, discarded and previously, over the course of this regulatory confusion regarding the rulemaking, an emerging market for status of the numerous piles of legacy 116 See Materials Characterization Paper in coal refuse. Support of the Final Rulemaking: Identification of 114 See definition of traditional fuels, as codified Nonhazardous Secondary Materials That are Solid Response: This comment is clearly in 40 CFR 241.2. We note that the December 2011 Waste, Biomass—Agricultural Residues and Food beyond the scope of this rulemaking proposal did not solicit comment on the definition Scraps.’’ February 3, 2011. A copy of this document proceeding. In the first place, legacy of traditional fuels. can be found in the docket for today’s rulemaking. coal piles are, indeed, wastes. How they 115 See Petrolia, Dr. Daniel R., ‘‘Economics of 117 Note that Section III.D.2.c of today’s preamble Crop Residues: Corn Stover.’’ June 2009. A copy of discusses circumstances under which off- may be treated when they are in the this document has been placed in the docket to specification used oil may use coal data when piles is clearly beyond the scope of this today’s rulemaking. making contaminant comparisons. rule. This rule deals with how the

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legacy coal is to be treated when it is discarded. We also disagree that solid waste. That said, we clarify again taken from the piles and burned for fuel. resinated wood is discarded prior to today that coal refuse recovered/ Comment: While supporting the being or when used as a fuel in a removed from legacy piles that is concept of a categorical listing for legacy combustion unit. For a discussion of processed in the same manner as coal refuse, a few commenters argued why we believe resinated wood is a currently generated coal refuse would that the agency should not require that non-waste fuel, please see section meet the definition of processing as legacy coal refuse be ‘‘processed’’ in III.E.3.b of this preamble.120 codified in section 241.2. No additional order to be considered a non-waste fuel. As noted above, coal refuse processing is required given the One commenter noted that the EPA does abandoned in legacy piles has clearly uniqueness of coal refuse. For not require traditional fuels or resinated been discarded in the first instance commenters suggestions regarding the wood to undergo processing to be because the coal preparation technology explicit wording of the categorical treated as a fuel, even though many of did not yet exist that could utilize these listing for legacy coal refuse, see those materials would be understood to materials for their fuel value. Thus, additional response to comments below. be discarded. legacy coal refuse would have to be Comment: In support of the agency’s Another commenter noted that the processed into a non-waste fuel. soliciting comment on whether to add term ‘‘post-processing,’’ which was used However, the agency has previously legacy coal refuse to the list of in the proposal as a shorthand recognized the uniqueness of coal refuse categorical non-waste fuels proposed in description of legacy coal refuse that has in that it is a byproduct of fuel 40 CFR part 241.4, one commenter undergone processing, is too vague and production processes and is itself a raw states that once removed from the should be eliminated so the use of material that can be used as a fuel.121 In physical mining location, legacy coal extracted coal refuse undergoing further the 2011 NHSM final rule, the agency refuse and currently-generated coal processing at the generating facility is determined that coal refuse that is refuse are indistinguishable. Thus, coal not discouraged. If applied too literally, recovered from legacy piles and used as refuse from legacy piles will be the commenter continued, any ‘‘post- fuel that is subjected to the types of managed in the same manner as coal processing’’ provision being imposed on operations that are used to process refuse, will have similar heating value treating legacy coal piles as fuel would virgin coal or currently generated coal as coal refuse and be used as a fuel in not benefit the CFB community and refuse would meet our definition of a combustion unit that recovers energy could hinder the usage of these piles as processing as codified in 40 CFR and can be expected to have similar 122 fuels. The commenter argues that the 241.2. contaminant levels as coal refuse term ‘‘post-processing’’ could be As the processing that is required is because it is ostensibly the same interpreted as requiring processing at no different than what currently- material. the coal refuse excavation site which generated coal refuse is subject to, we Response: We agree that coal refuse do not believe the processing recovered/removed from legacy piles would not be determinative of any requirement would hinder the usage of and processed in the same manner as relevant characterization of the coal coal refuse piles. The agency believes currently generated coal refuse would refuse or its intended use as fuel. the only additional ‘‘processing’’ step is meet both the definition of processing Response: In the 2011 NHSM final the actual extraction or recovery of the and the legitimacy criteria. Thus, we rule, the EPA discussed how a NHSM, coal refuse from the legacy piles. To the have determined to list ‘‘coal refuse that once discarded, can be processed into a extent that the term ‘‘post-processing’’ has been recovered from legacy piles non-waste fuel.118 The proposed rule could be misconstrued as requiring an and processed in the same manner as did not solicit comment on either the additional processing step at the currently-generated coal refuse’’ to the concept of processing a discarded extraction site or otherwise as compared list of categorical non-waste fuels NHSM into a non-waste fuel or the to currently generated coal refuse, this codified in part 241.4(a) of today’s definition of ‘‘processing’’ itself, as was not the agency’s intent. Rather, we rulemaking. The rationale for adding codified in section 241.2. Therefore, the have included the concept of this NHSM to the list of non-waste fuels agency does not address the concept or ‘‘processing’’ in the categorical non- follows the reasoning finalized in part definition of processing in this final waste determination for legacy coal 241.4(b) in today’s rulemaking. We rulemaking. refuse, as legacy coal refuse was clearly agree with the reasoning of the comment Again, however, the comment discarded and, prior to processing, is a and have, in fact, arrived at the very suggests a need to clarify the nature of same reasoning in support of the the rulemaking exercise that the EPA is 120 See also discussion included in the 2011 categorical listing. currently engaged in. First, we disagree NHSM final rule (76 FR 15499–15502). Comment: One commenter argued with the commenter’s characterization 121 See 76 FR 15507, which states, ‘‘Coal refuse that the EPA should treat legacy coal that many of the traditional fuels and is unique, however, from other non-hazardous refuse as fuels, since they are resinated wood should be understood to secondary materials addressed in this rulemaking, as it is generated in the process of producing fuels chemically identical, if not superior be discarded. Traditional fuels, by (i.e., the mining of coal for use as fuel) and its fuels, to currently generated coal refuse definition, are not discarded.119 If subsequent use and value as a secondary material that the agency considers to be a clearly discarded (e.g., a barrel of fuel is also as a fuel. Since the primary product of a coal traditional fuel, per the definition oil dumped), even a traditional fuel mining operation is itself a fuel, we consider coal refuse to be more akin to a raw material that is codified in 40 CFR 241.2. would have to be processed per the part subsequently processed and utilized to produce a Response: Again, the EPA must 241 regulations in order to be a non- fuel. In other words, coal refuse is different from explain a misunderstanding expressed waste fuel. However, it is precisely other non-hazardous secondary materials, such as by the commenter. The comment seems because of their fuel value that makes it used tires or resinated wood residuals, in that it is generated in the production of fuel and can be used to consider that material is either a unlikely that traditional fuels will be itself as a fuel (and in fact has never been used for ‘‘fuel’’ or a ‘‘waste’’ and misses the point anything else).’’ that the distinction in this rulemaking is 118 See 76 FR 15474–15477. 122 See 76 FR 15509. In addition, subsequent to between a ‘‘product’’ and a ‘‘waste’’ 119 See last sentence of ‘‘traditional fuels’’ the 2011 NHSM final rule, the EPA has reiterated definition, as codified in 241.2: ‘‘[Traditional] fuels this determination. See August 15, 2011, letter to fuel. Fuels may be wastes. The point is are not secondary materials or solid wastes unless Jeff A. McNelly, ARIPPA (cited in the proposed that the coal that has been abandoned in discarded’’ (emphasis added). rule: 76 FR 80486). piles is a waste. However, the EPA has

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determined that once processed that Response: As discussed above, we be considered a solid waste when coal is either identical (or maybe even have determined to list ‘‘coal refuse that burned as a fuel for energy recovery, superior) to currently mined materials has been recovered from legacy piles specifically: (1) When the manure that would have become refuse in the and processed in the same manner as remained within the control of the past. currently-generated coal refuse’’ to the generator and met the legitimacy The EPA agrees with, and has list of categorical non-waste fuels, as criteria; (2) when the manure was adopted, the same reasoning expressed codified in § 241.4(a) of today’s sufficiently processed (e.g., via by the commenter that the processed rulemaking. We believe this language or gasification material is a product fuel. The accurately captures the scope of processes) and the resulting material disagreement between the EPA and the materials at issue and what must occur met the legitimacy criteria; and (3) when comment is the status of the legacy piles for the material to be categorically a facility received a determination from and the nomenclature of the coal finally characterized as a non-waste fuel. That the agency pursuant to 241.3(c) stating burned. The coal is a processed fuel is, this categorical listing only applies to that its manure was a non-waste when product, not a traditional fuel. coal refuse that has been discarded in used as a fuel. For further discussion Comment: One commenter stated that the first instance in legacy piles, regarding our characterization of there are ‘‘other relevant factors’’ that subsequently recovered or removed manure, see the preamble to the 2011 the EPA should consider when from the discard environment and NHSM final rule (76 FR 15479–15482). determining whether coal refuse from subjected to the same processes and In the December 2011 proposed rule, legacy piles should be categorically operations as currently generated coal the agency noted that some parties have listed as a non-waste fuel. Specifically, refuse.123 Further, this language should identified the potential of manure to not the commenter believes that the EPA alleviate any concerns that the term be considered a solid waste. We, should consider the ‘‘overwhelming ‘‘post-processed’’ is vague since that therefore, invited parties to present resultant environmental improvements’’ term is not being used within this information, including data associated with the cleanup of provision as finalized today. demonstrating that manure is not abandoned coal refuse piles, including We do not agree with the comments discarded either through the existing the reduction of fire hazards and that a categorical listing for legacy non-waste petition process or the contaminant, , and solids refuse should specifically reference proposed categorical determination releases into the environment, as an SMCRA. As we noted in the preamble process.126 The agency received no ‘‘other relevant factor’’ as it considers to the 2011 NHSM final rule, while the information or data that would allow it EPA recognizes that SMCRA is listing legacy coal refuse as a non-waste to consider proposing to list manure concerned with the management and 127 fuel in § 241.4. categorically as a non-waste fuel. removal of coal refuse piles at mining Response: The EPA’s decision to Therefore, we are not taking any action sites, SMCRA does not address the issue include processed legacy coal refuse to in the rulemaking with respect to of ‘‘discard,’’ which is critical to the the list of non-waste fuels in § 241.4(a) manure. However, the agency did definition of solid waste under receive several comments from one was based on the fact that such RCRA.124 Thus, a specific reference to materials meet the definition of commenter which we will respond to SMCRA would be inappropriate as well below. processing and the legitimacy criteria. as confusing. Further, we believe that a We do not need to balance ‘‘other Comment: The commenter states that specific reference to SMCRA would be dried animal manure should be relevant factors’’ in making this in fact more burdensome than the determination, as would be appropriate included as a non-waste with the other language of the categorical listing being fuels in 40 CFR 241.4(a). The under an analysis conducted under codified today, which simply states that § 241.4(b)(5)(ii). commenter contends that there is no legacy coal refuse must be processed in evidence that any animal manure is Comment: The EPA received a few the same manner as currently-generated comments regarding the specific discarded, let alone sent to landfills. coal refuse, regardless of whether such Manure is generally used as fertilizer on wording of how coal refuse recovered processing is done pursuant to SMCRA. from legacy piles should be identified fields, although an important secondary and described in § 241.4(a) should the c. Manure purpose is for energy recovery/ generation. In addition, the commenter agency determine to categorically list In the 2011 NHSM final rule, the EPA this NHSM pursuant to § 241.4(a). One stated that based on the information states there are several known instances commenter suggested inserting the provided, we could not make a blanket of additional plans for animal manure following text as a subsection within determination that all manure is a energy projects that are designed § 241.4(a): ‘‘Coal refuse that does not traditional fuel or that it is a solid waste. specifically to recover energy, including constitute currently-generated coal However, upon reviewing the few government funded projects. The commenter notes that after refuse, but that is processed in the same comments and data received, we drying, animal manure has a meaningful manner as currently-generated coal concluded that animal manure that is Btu value equal to or above that of other refuse.’’ As previously discussed, used as a fuel ‘‘as generated’’ does not another commenter stated that the term satisfy the legitimacy criteria, and thus, 126 See 76 FR 80472. ‘‘post-processed’’ was vague and could if combusted ‘‘as generated,’’ would be 127 In the preamble to the proposed rule, the be interpreted to require additional a solid waste.125 However, the agency agency indicated the type of information and data processing that would hinder the usage also noted that there were that should be submitted to categorically list of legacy coal refuse piles. Still another circumstances where manure would not manure as a non-waste fuel. Specifically: (1) The extent that use of the NHSM has been integrally tied commenter suggested referencing the to the industrial production process—information SMCRA in a categorical non-waste 123 We note that it would not be appropriate to can include combustor design specifications, the determination for coal refuse, which include currently generated coal refuse within this extent that the use of the material is integrated would ensure that the coal refuse is a categorical non-waste determination, as we have across the industry and the extent that use of the previously determined and continue to believe that NHSM is essential to the industrial process and/or fuel and minimize overlapping currently generated coal refuse is a traditional fuel. (2) the extent that the NHSM is functionally the regulatory jurisdiction that could 124 See 76 FR 15510. same as the comparable traditional fuel and (3) evolve. 125 See 76 FR 15480. other relevant factors.

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biomass that the EPA has determined to The commenter notes additional generator. However, the fact that there is be a non-waste fuel (e.g., bagasse). The plans for animal manure energy a contractual relationship by itself is not commenter also notes that there are projects; however the fact that there are dispositive that a material is not a contracts in place for livestock and plans for future projects does not waste, as there are contracts between poultry producers to supply manure to support a categorical non-waste parties to remove and dispose of wastes. the combustor. determination today. As the EPA has We also believe that the commenter’s Regarding contaminants in manure, acknowledged, facilities may be able to statements that the concentrated levels the commenter states that the amount of demonstrate that they satisfy the of contaminants are no different than contaminants is limited because the vast legitimacy criteria, either through a self- what occurs in the production of majority of applicable contaminants are determination if the manure remains ‘‘byproducts of ethanol natural directly related to the contaminants within the control of the generator or fermentation processes’’ is not contained in the biomass consumed by through the § 241.3(c) non-waste supported by any information or data. the animals. The EPA has not presented determination petition process. Thus, That is, other than the general any evidence that facilities are any future energy project using animal statement, the commenter has not combusting manure in order to discard manure as fuel could utilize either of provided contaminant data, for either chlorine or nitrogen, the two these options for determining that the animal manure or byproducts of ethanol contaminants identified by the EPA. manure is a non-waste fuel, as natural fermentation processes, for the These concentrated contaminants are no appropriate. agency to analyze and compare. different than what occurs in the Regarding the commenter’s points Thus, we have determined based on production of ‘‘byproducts of ethanol related to meaningful heating value of the lack of any information or data that natural fermentation processes,’’ which dried manure, the fact that dried animal manure should not be listed as the EPA is now proposing to include in manure may have a greater Btu value a categorical non-waste fuel in the definition of ‘‘clean cellulosic than bagasse is not directly on point. To § 241.4(a). biomass.’’ Based on a ‘‘balancing of the demonstrate that a NHSM has Comment: In the event that the agency legitimacy criteria and other such meaningful heating value when used as does not list animal manure as a relevant factors,’’ the EPA‘s new a fuel, a facility does not compare categorical non-waste fuel, the EPA standard, animal manure should be relative Btu/lb of the NHSM against could alternatively decide that included in the 40 CFR 241.4(a) fuels other traditional fuels, which processing of animal manure by drying, list, along with resinated woods and themselves have a wide range of heating constitutes ‘‘sufficient processing,’’ such scrap tires. values. Rather, consistent with other that previously discarded manure could Response: We disagree with the EPA rulemakings, we have established be considered recovered for energy commenter on several points and do not 5,000 Btu/lb as a benchmark for recovery, just like scrap tires could be believe that the case has been made to demonstrating that a NHSM has processed and burned as a non-waste. include animal manure as a categorical meaningful heating value. Thus, to meet Response: In the December 23, 2011 non-waste fuel in 40 CFR 241.4(a). First, the meaningful heating value legitimacy proposal, the agency did not solicit in the 2011 NHSM final rule, we criterion, the material would need to comment on the definition of previously determined that animal meet an ‘‘as fired’’ heating value of ‘‘processing,’’ as codified in 40 CFR manure that is used as fuel, ‘‘as 5,000 Btu/lb, or if lower than 5,000 Btu/ 241.2. Thus, this comment is beyond the generated,’’ would not satisfy the lb, as fired, a person would need to scope of the rulemaking and will not be legitimacy criteria. This conclusion was demonstrate that the ERU can cost- addressed in today’s final action. based on the fact that such material effectively recover meaningful energy d. Other Materials for Which Additional likely would not satisfy the meaningful 130 from the NHSM used as a fuel. We Information Was Not Requested heating value and contaminant also note that the EPA did not reopen legitimacy criterion.128 Thus, we believe the meaningful heating value for fuels, In the December 2011 proposal, the that the burning of such materials (as as codified in 40 CFR 241.3(d)(1)(ii), in agency solicited comment on a focused generated) would not be legitimate and the December 23, 2011, proposed rule. list of NHSMs and, in particular, would be seen as burning for discard. Thus, in order to meet this criterion, the whether these NHSMs would be Further, the agency has never stated that dried manure would need to meet an appropriately included in the a NHSM, including animal manure, has ‘‘as fired’’ heating value of 5,000 Btu/lb, categorical list of non-waste fuels that to be landfilled in order to be discarded, or if lower than 5,000 Btu/lb, the facility the agency was proposing in 40 CFR as the commenter implies. Regarding would need to demonstrate that the ERU 241.4(a). Specifically, the agency the use of manure as fertilizer, we have can cost-effectively recover meaningful proposed and/or invited comment and been clear that this rulemaking does not energy from use of manure as a fuel. additional information regarding address that secondary use. The 2011 Regarding the commenter’s statement potential categorical non-waste NHSM final rule states, ‘‘We recognize regarding contracts between livestock determinations for resinated wood, that manure may also be beneficially and poultry producers and combustors, scrap tires managed pursuant to used in other end uses, such as a first we would note that no information established tire collection programs, fertilizer * * * EPA is not making any has been provided to indicate who has pulp and paper sludges, and coal refuse determination whether non-hazardous entered such contracts or how many recovered from legacy piles. secondary materials are or are not solid such contracts there are to consider this Although comment was requested wastes for other possible beneficial end factor. However, as we have stated only for these specific materials, the uses. Such beneficial use elsewhere in this preamble, contractual agency received comments that many determinations are generally made by arrangements can be used as evidence other NHSMs be listed as categorical the states for these other beneficial uses, that the material is managed as a non-wastes for which it did not request and EPA will continue to look to the valuable commodity and that discard is additional information as a part of this states to make such determinations.’’ 129 not occurring when a material is rulemaking. As we have discussed transferred beyond the control of the elsewhere in today’s preamble, we will 128 See 76 FR 15480–15481. not be responding to such comments 129 76 FR 15482. 130 See 76 FR 15541. and issues that are beyond the scope of

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today’s narrow rulemaking. We would these non-hazardous secondary issuance of that rule on specific best also note that since the agency did not materials are part of the industrial management practices used by specifically solicit comments on these process.133 Regarding the legitimacy suppliers/processors of C&D wood. additional materials or propose that criteria, the Agency found that these Such practices include processing to these NHSMs should be categorically materials meet the criteria with respect remove contaminants. EPA believes the listed in 40 CFR 241.4(a), the Agency to management as a valuable commodity information received to date would tend will be going through notice and and used as a fuel when burned on-site. to support a listing of these materials as comment rulemaking before making a In addition, the Agency found that the a categorical non-waste fuel and expects final decision. However, we would like contaminant levels in these materials to propose that listing in a subsequent to note two additional NHSMs—paper are comparable to those in traditional rulemaking. recycling residuals and construction fuels. With respect to the meaningful Other Materials Under Consideration and demolition wood processed heating value criterion, the Agency pursuant to best practices that, based on determined that OCC rejects meet this The American Forest & Paper information provided to the agency,131 criterion if it can be demonstrated that Association and the American Wood we now believe are good candidates and the combustion unit can cost-effectively Council submitted a draft petition to expect to propose categorical listings in recover energy from these materials.134 EPA on December 6, 2012 seeking a 40 CFR 241.4(a) in the near future for Since publication of the March 2011 categorical listing for creosote-treated these two materials. With respect to a rule, the Agency has received additional railroad ties.137 This draft petition lists third NHSM—creosote-treated railroad information regarding the cost their bases for the determination, with ties, the Agency has recently received a effectiveness of paper recycling supporting information. draft petition from The American Forest residuals use as a fuel, including The information included amounts of & Paper Association and the American amounts of paper recycling residuals railroad ties combusted each year and Wood Council seeking a categorical replacing traditional fuels at paper mills value of the ties as fuel. Overall, the listing for these materials. As noted and percentages of residuals generated petitioners believe the information below, the Agency has requested that are combusted as fuel. In general, demonstrates that these materials are additional information from the this information also indicates that this non-waste fuels and would allow EPA petitioners with regard to their request. material is primarily combusted as a to categorically list this material, If the additional information supports fuel on-site or within the control of the balancing the legitimacy criteria with the representations made in the generator.135 We have asked the other relevant factors. The draft petition petitioners’ draft December 6, 2012 industry for information to confirm this. provides information representing a petition, the EPA expects to propose a EPA believes the information received determination that the material has high categorical listing for this material as to date would tend to support a Btu value, and that the material satisfies well.132 categorical determination of these the legitimacy criteria. The Agency is residuals as non-waste fuels. For still in the process of reviewing the Paper Recycling Residuals residuals that are transferred offsite, the petition. However, in order to inform The first of these is paper recycling Agency would like additional the scope of the non-waste category, we residuals (including old corrugated information about residuals that are also have also asked the petitioners to cardboard (OCC) rejects). In the 2011 burned as a fuel at facilities that are not provide additional information, NHSM final rule, EPA determined that under the control of the generator, including: paper recycling residuals, referred to as including information as to how and 1. A list of industry sectors, in OCC rejects, are not discarded when where they are burned and whether they addition to forest product mills, that used under the control of the generator, are managed as a valuable commodity. burn railroad ties for energy recovery such as at pulp and paper mills, since If the Agency receives information 2. The types of boilers (e.g., kilns, confirming treatment of these materials stoker boilers, circulating fluidized bed, 131 Comments on December 23, 2011 proposed offsite, the Agency would expect to etc.) that burn railroad ties for energy rule supporting a categorical non-waste for paper include these residuals in a subsequent recovery recycling residuals: American Forest & Paper 3. The traditional fuels and relative rulemaking. Association, et al. EPA–HQ–RCRA–2008–0329– amounts (e.g., startup, 30%, 100%) of 1946–A1; Georgia-Pacific LLC (GP) EPA–HQ– RCRA–2008–0329–1902–A1; National Alliance of Construction and Demolition Wood these traditional fuels that could Forest Owners (NAFO) EPA–HQ–RCRA–2008– Processed Pursuant to Best Practices otherwise generally be burned in these 0329–1950–A2; Packaging Corporation of America The second of these NHSMs is types of boilers (PCA) EPA–HQ–RCRA–2008–0329–1966–A1; and 4. The extent to which non-industrial United Steelworkers (USW) EPA–HQ–RCRA–2008– construction and demolition (C&D) 0329–1910–A1. Comments supporting a categorical wood processed pursuant to best boilers (e.g., commercial or residential non-waste for paper recycling residuals and C&D practices and produced and managed boilers) burn railroad ties for energy wood: American Forest & Paper Association, et al. under the oversight of a comprehensive recovery EPA–HQ–RCRA–2008–0329–1946–A1; 5. Laboratory analyses for collection system or contractual Construction Materials Recycling Association contaminants known to be present in (CMRA) EPA–HQ–RCRA–2008–0329–1928–A1; arrangement. In the March 2011 final creosote-treated railroad ties or known Covanta Energy Corporation (Covanta) EPA–HQ– rule, we determined that C&D wood that RCRA–2008–0329–1893–A; Energy Recovery to be significant components of is sufficiently processed can be a non- Council (ERC) EPA–HQ–RCRA–2008–0329–1927– creosote, specifically polycyclic A1; Georgia-Pacific LLC (GP) EPA–HQ–RCRA– waste fuel.136 The Agency has received aromatic hydrocarbons (i.e., PAH–16), 2008–0329–1902–A1; Michigan Biomass EPA–HQ– additional information since the RCRA–2008–0329–1905–A1; National Alliance of dioxins, dibenzofurans, Forest Owners (NAFO) EPA–HQ–RCRA–2008– hexachlorobenzene, biphenyl, 133 [76 FR 15487] 0329–1950–A2; United Steelworkers (USW) EPA– quinoline, cresols, and 2,4- HQ–RCRA–2008–0329–1910–A1; Waste 134 For a discussion of OCC rejects, see 76 FR Management (WM) EPA–HQ–RCRA–2008–0329– 15486–7. dinitrotoluene. 1957–A2; and Weyerhaeuser EPA–HQ–RCRA– 135 See ‘‘Generation, Management, and Processing 2008–0329–1930–A1. of Paper Processing Residuals’’ (Industrial 137 Letter from American Forest & Paper 132 See draft letter from Paul Noe to Adminstrator Economics, October 26, 2012) (these items will be Association and American Wood Council to Lisa Lisa Jackson, December 6, 2012, (item to be placed placed in the docket.) Jackson, dated December 6, 2012 (a copy of this in the docket for today’s rule). 136 See 76FR 15485 letter can be found in the docket for today’s rule)

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Assuming that the additional Commenters were concerned about under the control of the generator has information supports and supplements the timeliness of the EPA’s decision on not been discarded and meets the the representations made in the these determinations and on the legitimacy criteria, prepare and submit petitioner’s December 6, 2012 draft uncertainty surrounding the usage of the a non-waste determination petition to petition, the EPA also expects to NHSMs while a non-waste the EPA, have the EPA process the propose a categorical listing for this determination petition is pending. The petition, including soliciting comment material. To the extent that petitioners commenters argue that if a NHSM is on the EPA’s proposed determination, would like to provide additional determined to be non-waste, the and make a final decision. information, the Agency will consider combusted NHSM in question was also In regard to the comment on reducing such information as well. non-waste prior to the determination. the time the petition application is open EPA has also received a related letter Response: The agency understands for public comment, the agency decided from the Treated Wood Council asking the interests of petitioners awaiting an that the comment period shall remain at that nonhazardous treated wood be agency decision on the status of 30 days but the regulatory text is determined as a categorical non-waste, a materials, while a 40 CFR 241.3(c) changed from ‘‘at least 30 days’’ to ‘‘30 broader category that would include petition is being considered. In order to days’’ in order to promote clarity, while creosote-treated ties.138 EPA is in the lessen the uncertainty surrounding the affording an opportunity for public process of reviewing this letter, and may regulatory status of a particular material, comment. also propose a categorical listing for this the agency will utilize the date the Comment: One commenter strongly broader set of treated wood material. petition was submitted as the date that encouraged the agency to develop and Finally, we would note that if any the combusted materials will be deploy an on-line form to identify person provides sufficient information considered a non-waste if the agency materials for non-waste determinations. to EPA regarding any other NHSM, EPA grants the petition. Commenters also noted that the EPA would also consider listing such Comment: Many commenters should provide more detailed material(s) categorically, pursuant to 40 indicated concern that the petition information about how the CFR 241.4(b). process could take excessive time for determinations are made (particularly the agency to reach a decision. They for the comparable contaminant 6. Streamlining of the 40 CFR 241.3(c) requested self-imposed timeframes for determinations). Non-Waste Determination Petition the EPA’s granting/denying requests and Response: The agency will consider Process a shorter length of time for the notices the development of a form to identify In the proposed rule, the EPA asked to be open for public comment (or omit the specific information needed to for comments on streamlining or other it altogether). The combustors stated determine whether a NHSM meets the improvements to the existing provision they need quick decisions in order to legitimacy criteria and other provisions. for non-waste determinations codified at comply with the CAA regulations and to If the agency develops such a form, it 40 CFR 241.3(c). make efficient business decisions. would be made available on the NHSM The agency requested comment on Response: The agency considered the Web site. Please note that traditional whether the EPA’s grant of the petition commenters’ suggestion, but decided fuel data (including tables for traditional should apply as of the date that the not to impose a deadline on its decision contaminants) are available to the petition was submitted to the agency.139 because there are many factors beyond public, which they may find useful in The agency also requested additional its control, including how long it takes assessing the contaminant legitimacy comment on whether any other changes for the petitioner to submit a complete criteria. Refer to those tables in could be made to the non-waste petition to EPA for evaluation. We ‘‘Contaminant Concentrations in determination petition in order to would note, however, that even though Traditional Fuels: Tables for streamline the process, while at the the NHSM rule will become effective on Comparison’’ currently posted on the same time provide the EPA with the April 8, 2013, for all practical purposes, NHSM web site at http://www.epa.gov/ opportunity to ensure that such NHSMs existing facilities that currently burn osw/nonhaz/define/index.htm. That are not being discarded. For example, NHSMs from off-site sources will have document will aid in comparing the the EPA requested comment on whether a substantial amount of time to submit concentration of contaminants in their public comment should be sought on and have the EPA process a non-waste NHSMs to concentration of each individual petition.140 determination petition before having to contaminants in traditional fuels. In Comment: Concerning the request for comply with the CAA emission addition, rule clarification letters and comment regarding when a petition standards, as the compliance date for petition findings are also posted on the determination would apply, the agency existing CISWI sources subject to CAA Web site when finalized. received several comments. Specifically, 129 standards is 5 years after the date Comment: A commenter suggested the agency requested comment on of publication of the CISWI final rule or that the non-waste petition process whether the EPA’s grant of the petition 3 years after the state plan is approved, should allow for ‘‘balancing’’ of should apply as of the date that the whichever happens earlier and February legitimacy criteria similar to that petition was submitted to the agency. 7, 2016, to comply with the Boiler included for categorical determinations Commenters agreed that a non-waste MACT rule.141 142 Thus, we believe that in 40 CFR 241.4. determination under 40 CFR 241.3(c) there will be more than adequate time Response: Under 40 CFR 241.4 of the should be retroactively applied to the for persons to determine whether or not proposed regulation, the EPA can date the petition was submitted. a NHSM sent to a combustion unit not balance the legitimacy criteria with other relevant factors in making 138 Letter from Jeffrey Miller, Treated Wood 141 We recognize that new sources that are coming categorical non-waste determinations. Council to Lisa Feldt, December 17, 2012. (a copy online that will have to comply with these rules As the commenter points out, we have of this letter can be found in the docket to today’s much sooner than do existing sources. As such, the not discussed the applicability for rule) Additional supporting information is found in Agency will consider prioritizing the processing of similar balancing under 40 CFR 241.3 the Comments of Treated Wood Council, dated Feb. non-waste petitions it has received from new 20, 2012)( EPA–HQ–RCRA–2008–0329–1897. sources as appropriate. non-waste determination petitions. The 139 See 76 FR 80473. 142 Note that the compliance date for the Area EPA distinguished between 40 CFR 140 See 76 FR 80474. Source Boiler Rule is March 21, 2014. 241.3 and 40 CFR 241.4 because in the

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latter, the EPA makes the determination behalf of petitioners. They can petition will govern non-waste determination based on its review and analysis of for a single combustor or a class of petitions.’’ Another commenter stated, industry-wide data and other factors, as combustors (e.g., a specific usage of a ‘‘The reason for public participation in opposed to a specific site. However, the non-hazardous secondary material in a the hazardous waste petition process is EPA recognizes the points the particular state). Therefore, in regard to that the materials subject to the petition commenter raises and will consider the comment on nationwide petitions are to be removed from the hazardous whether such modifications may be for classes of combustion units, the waste regulatory program. In the NHSM appropriate. petition process accommodates for these world, the secondary materials subject Comment: Several commenters were classes of combustion units. This to the petition are merely obtaining interested in features that streamline assumes that the petition identifies all clarity about regulatory status—they are and add flexibility to the administrative of the specific NHSMs that the classes not seeking a change in regulatory petition process, particularly in the of combustion units use as fuel (that are status. Therefore, the need for the full situation where a petition can apply to applicable to a 40 CFR 241.3(c) petition) public participation process is not multiple combustors. and gives the information necessary to necessary or warranted.’’ One commenter noted that any meet the legitimacy criteria and other Response: Although industry interested person—including forest requirements. commenters argued that public owners—should be able to initiate the Note that if a petition covers multiple participation is unnecessary, the EPA petition process, not just combustors. facilities in a single region, the petition still believes that public participation is The petitions should be allowed for should be sent to the Regional an important part of a transparent entire classes of a NHSM rather than Administrator for that Region, not to the decision making process and values requiring a case-by-case analysis. These Assistant Administrator for the OSWER. how it increases transparency. In the clarifications will encourage all Comment: Several commenters argued final rule, we will retain the public members in the biomass supply chain to that the 40 CFR 241.3(c) petitions participation requirement in order to promote their products and co-products should not require public comment for promote public awareness. as clean, renewable fuels and promote each individual petition. the development of new markets for One commenter stated that ‘‘the 7. Revised Introductory Text for 40 CFR biomass materials. Other commenters administrative petition process could be 241.3(a) also stressed the need for the EPA to further streamlined by not seeking As part of its discussion clarifying the clarify that the petition can apply to public comment on every individual non-waste determination petition more than one combustor so that petition. By filing an administrative processes, the EPA noted that it had redundant petitions do not need to be petition, a petitioner is not seeking to examined a number of specific NHSMs filed in every region. change the EPA’s regulatory program or and decided which were to be A commenter also stated that the create new legal rights or obligations. considered solid wastes based on the benefits from petitions could be Instead, the administrative petition record available at the time the March achieved more efficiently if the process provides an opportunity for a 2011 final rule was issued.143 The rule regulatory language was changed to petitioner to obtain in advance [A]gency itself had stated at 40 CFR 241.3(a) that allow for nation-wide petitions under 40 concurrence, based on sound science, secondary materials were solid wastes CFR 241.3(c) for classes of combustion with respect to the classification of a except for those described in section units rather than requiring separate particular feedstock under existing 241.3(b). Essentially, section 241.3(b) is petitions for each EPA region. regulations. In this respect, the the operative section that states what Response: The agency agrees with the administrative petition process differs materials are not wastes. The purpose of commenters that the process should from the categorical non-waste the non-waste determination petition accommodate for petition applications determination * * * where EPA makes process in section 241.3(c) and the new from third party producers of a NHSM changes to the regulatory status of proposed petition process in section that can be used as a non-waste NHSM certain non-hazardous secondary 241.4 is to allow various parties the fuel at many combustion units instead materials that are reflected in the Code opportunity to provide information and of just accepting petitions from of Federal Regulations. Because the data so that the EPA could decide what individual combustors or combustors public—through this rulemaking other NHSMs are not solid wastes. The within the control of one EPA region. process—has an opportunity to provide preamble stated that the agency This can make for a more streamlined input on EPA’s regulations, there is no proposed to amend section 241.3(a) to and efficient process. Therefore, the need to provide a second opportunity state that such secondary materials are regulatory provision at 40 CFR 241.3(c) for public comment when those ‘‘presumed to be’’ solid wastes except has been modified to allow for the regulations are applied by the EPA in for those described in section 241.3(b) petition to be sent to the Assistant specific contexts through the in order to better reflect the rulemaking Administrator for the OSWER instead of administrative petition process.’’ record. each Regional Administrator if the In addition, other commenters Comment: No commenters supported petition covers more than one EPA indicated that public notice and inclusion of the ‘‘presumed to be’’ Region. This is at the option of the comment is not necessary, since the language in the rule. petitioner. The Assistant Administrator NHSM rulemaking process has already Most of the commenters on the for the OSWER would be responsible for taken comment on the methodology, in language argue that it means that the the EPA’s administrative process in addition to other rationale. In particular, EPA continues to improperly determine order to finalize the petition decision one commenter stated, ‘‘Streamlining that certain NHSMs are presumptively under 40 CFR 241.3(c) and the could be further facilitated by wastes. Commenters generally argue regulatory language has been modified recognizing that solicitation of public that the ‘‘presumed to be’’ language accordingly. comment on each individual shows that the EPA, in spite of Finally, as noted in the 2011 NHSM application would be redundant and statements to the contrary, is continuing final rulemaking, states, or private unnecessary given the public’s ample to make an inappropriate determination entities, can submit non-waste opportunity during this rulemaking to determination petitions to the EPA on comment on the evaluation criteria that 143 See 76 FR 80473.

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that NHSMs transferred to other parties ‘‘reverse’’ a presumption that it never E. Cost and Benefits of the Final Rule made to declare that materials burned are presumptively wastes until a The RCRA aspects of this rule do not for energy recovery are presumptively combustor proves otherwise. According directly invoke any costs (excluding non-wastes. Further, it would be to comments, the use of the ‘‘presumed minor administrative burden/cost), or entirely improper for the agency to do to be’’ language is a clear statement that benefits. Any RCRA related costs to the so. The EPA has evaluated specific the EPA is making the presumption. The regulated community, and groups of materials as to their waste addition of these words does not change corresponding benefits to human health status, while the comments regarding the fact that, under the EPA’s regulatory and the environment, have been reversal of a purported presumption framework, NHSMs are wastes until considered as part of the CISWI action, have only presented arguments ‘‘in proven otherwise. and the corresponding CISWI and Boiler Several commenters, in fact, argued broad abstraction, providing little detail MACT (area source and major source) that to address the legal flaws in the about the many processes throughout final rules. As such, the agency has not proposal, the EPA should reverse the the industry that generate residual prepared a separate cost-benefit presumption and presume that NHSMs material’’ that could be subject to this assessment in support of this part of the burned for energy recovery or used as an rule. Association of Battery Recyclers v. final rule. Consequently, any potential ingredient is not for the purpose of EPA, 208 F.3d 1047, 1056.144 costs or benefits, including impacts to disposal and, therefore, is not a waste. Accordingly, the agency stands on its small entities, indirectly associated with Response: The EPA is not addressing March 2011 rulemaking record for the the RCRA aspects of this rule are in this rulemaking the comment that the issues discussed in these comments. addressed in the corresponding impact agency has inappropriately made Comment: Comments objected that assessment prepared in support of the presumptions about whether materials the change in word choice that materials CISWI part of this action. are wastes. This issue has not been are ‘‘presumed to be’’ solid wastes from reopened. Instead, the agency has only the statement that that materials ‘‘are’’ IV. Statutory and Executive Order opened very specific issues on solid wastes (except as otherwise Reviews particular wastes. provided in the regulation) still puts the A. Executive Order 12866: Regulatory In the December 2011, proposal at 76 burden to prove material is not a waste Planning and Review and Executive FR 80473, the EPA referred to the March on persons who use NHSMs in Order 13563: Improving Regulation and 2011 preamble in which the agency combustion units. One comment, in Regulatory Review stated that it has not ‘‘arbitrarily particular, noted that there would be no determined that secondary materials practical effect of the new language even Under Executive Order 12866 (58 FR transferred between companies are though it is viewed by the EPA as an 51735, October 4, 1993), this action is a wastes. Instead, the EPA has evaluated ‘‘optically less drastic stance.’’ That is, ‘‘significant regulatory action’’ because whether certain categories of materials there would be no real leeway for a it may raise novel legal or policy issues. are discarded or not. The Agency has party in an enforcement proceeding to Accordingly, the EPA submitted this not adopted the extremes of saying that counter the EPA’s prosecution based on action to OMB for review under all burning of secondary material, the fact that the secondary material in Executive Order 12866 and 13563 (76 regardless of ultimate use, is waste question is only ‘‘presumed to be’’ a FR 3821, January 21, 2011). Any treatment or that any secondary material waste, rather than the material ‘‘is’’ a changes made in response to OMB that is recycled for legitimate fuel value waste. recommendations have been is a commodity and not a waste. Wastes Response: The EPA has decided not to documented in the docket for this may have value, but are still wastes.’’ 76 retain the ‘‘presumed to be’’ language, action. FR 15471. Further, the agency stated since it is unnecessary and does not In addition, the EPA prepared an that it ‘‘has examined a number of actually reflect the rulemaking record. update to the RIA of the potential costs specific materials, recycled within the No comment argued in favor of it. In and benefits associated with this action. control of the generator and transferred addition, there is no need to temper the The RIA available in the docket to a third party for recycling, and existing language stating that a material describes in detail the empirical basis determined whether they would be is a solid waste if it does not fall within for the EPA’s assumptions and appropriately placed within the waste the § 241.3(b) categories or the non- characterizes the various sources of or non-waste categories.’’ Id. The EPA waste determination processes. As uncertainties affecting the estimates went on to examine a number of noted in the previous response to below and a memo documents the different categories of NHSMs used as comments regarding the agency’s updates since the RIA was prepared. fuels and ingredients that was ‘‘presumption’’ of the waste status of Table 9 of this preamble shows the summarized in the Federal Register (76 materials, the agency stands on its results of the cost and benefits analysis FR 15477–15520). The EPA cannot March 2011 rulemaking record. for these final rules.

TABLE 9—SUMMARY OF THE MONETIZED BENEFITS, SOCIAL COSTS AND NET BENEFITS FOR THE FINAL CISWI NSPS AND EG IN 2015 [Millions of 2008$] 1

3 Percent discount rate 7 Percent discount rate

Total Monetized Benefits 2 ...... $420 to $1,000 ...... $380 to $930 Total Social Costs 3 ...... $258 ...... $258 Net Benefits ...... $160 to $770 ...... $120 to $670 Health effects from exposure to HAP 780 tons of HCl, 2.5 tons of lead, 1.8 tons of Cd, 680 pounds of Hg, and 58 grams of dioxins/furans).

144 Note how the April 4, 2012, letter from is in the docket for today’s rule), provided specific EPA added a categorical determination based on Timothy G. Hunt to James Berlow (a copy of which information on pulp and paper sludge where the specific information provided by industry.

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TABLE 9—SUMMARY OF THE MONETIZED BENEFITS, SOCIAL COSTS AND NET BENEFITS FOR THE FINAL CISWI NSPS AND EG IN 2015—Continued [Millions of 2008$] 1

3 Percent discount rate 7 Percent discount rate

Non-monetized Benefits ...... Health effects from exposure to criteria pollutants (20,000 tons of CO, 6,300 tons of SO2, 5,400 tons of NO2, and secondary formation of ozone). Ecosystem effects. Visibility impairment. 1 All estimates are for the implementation year (2015) and are rounded to two significant figures. These results reflect the lowest cost disposal assumption. 2 The total monetized benefits reflect the human health benefits associated with reducing exposure to PM2.5 through reductions of PM2.5 pre- cursors such as directly emitted particles, SO2, and NOX. It is important to note that the monetized benefits include many but not all health ef- fects associated with PM2.5 exposure. Monetized benefits are shown as a range from Pope, et al. (2002) to Laden, et al. (2006). These models assume that all fine particles, regardless of their chemical composition, are equally potent in causing premature mortality because the scientific evidence is not yet sufficient to allow differentiation of effect estimates by particle type. 3 The methodology used to estimate social costs for 1 year in the multimarket model using surplus changes results in the same social costs for both discount rates.

B. Paperwork Reduction Act as defined by the SBA’s regulations at for state, local and tribal governments, This action does not require any new 13 CFR 121.201; (2) a small in the aggregate, or the private sector in information collection. This action is governmental jurisdiction that is a any 1 year. Accordingly, we have believed to result in no additional government of a city, county, town, prepared under section 202 of the impact on the aggregate information school district or special district with a UMRA a written statement, which is collection estimate of project cost and population of less than 50,000; or (3) a summarized in the preamble to the final hour burden made and approved by small organization that is any not-for- CISWI rule (76 FR 15747). OMB. Due to changes in the CISWI profit enterprise that is independently This rule is also not subject to the inventory and monitoring requirements owned and operated and is not requirements of section 203 of UMRA of the CISWI rule, the information dominant in its field. because it contains no regulatory collection estimate of project cost and After considering the economic requirements that might significantly or hour burden have been revised. impacts of today’s final rule on small uniquely affect small governments. Therefore, only the CISWI ICR has been entities, I certify that this action will not E. Executive Order 13132: Federalism revised. The OMB control numbers for have a SISNOSE. This final rule will not the EPA’s regulations in 40 CFR are impose any new requirements on any entities because it does not impose any This action does not have federalism listed in 40 CFR part 9. implications. It will not have substantial However, OMB has previously additional regulatory requirements relative to those specified in the March direct effects on the states, on the approved the information collection relationship between the national requirements contained in the existing 2011 final CISWI and NHSM rules. The March 2011 final CISWI and NHSM government and the states, or on the CISWI and NHSM 145 regulations (40 distribution of power and CFR part 60, subparts CCCC and DDDD, rules were both certified as not having a SISNOSE. In this final action, there are responsibilities among the various and 40 CFR part 241) under the levels of government, as specified in provisions of the Paperwork Reduction four fewer small entities in the CISWI than in the March 2011 final CISWI Executive Order 13132. This final rule Act, 44 U.S.C. 3501, et seq., and has will not impose direct compliance costs been assigned EPA ICR number 2384.05 rule, as discussed in the ‘‘Regulatory Impact Results for the Reconsideration on state or local governments and will for subpart CCCC, 40 CFR part 60, EPA not preempt state law. Thus, Executive ICR number 2385.05 for subpart DDDD, Final for Standards of Performance for New Stationary Sources and Emission Order 13132 does not apply to this 40 CFR part 60, and EPA ICR number action. 2382.03 for 40 CFR part 241. Guidelines for Existing Sources: Commercial and Industrial Solid Waste F. Executive Order 13175: Consultation C. Regulatory Flexibility Act Incineration Units’’ memorandum in the and Coordination With Indian Tribal The RFA generally requires an agency CISWI docket. Governments to prepare a regulatory flexibility D. Unfunded Mandates Reform Act analysis of any rule subject to notice This action does not have tribal and comment rulemaking requirements This action does not contain a federal implications, as specified in Executive under the APA or any other statute mandate that may result in expenditures Order 13175, (65 FR 67249, November unless the agency certifies that the rule of $100 million or more for state, local 9, 2000). The EPA is not aware of any will not have a SISNOSE. Small entities and tribal governments, in the aggregate CISWI in Indian country or owned or include small businesses, small or the private sector in any one year. operated by Indian tribal governments. organizations and small governmental This rule finalizes amendments to the The CISWI aspects of this rule may, jurisdictions. final CISWI rule provisions and however, invoke minor indirect tribal For purposes of assessing the impacts technical clarifications to the final implications to the extent that entities of today’s rule on small entities, small NHSM rule. Thus, this rule is not generating solid wastes on tribal lands entity is defined as: (1) A small business subject to the requirements of sections could be affected. However, any indirect 202 or 205 of UMRA. However, the NHSM impacts that may occur as a 145 Identification of Non-Hazardous Secondary March 2011 final CISWI rule contains a result of the CISWI action are expected Materials That Are Solid Waste, Final Rule. March federal mandate that may result in to be negligible due to the very limited 11, 2011. expenditures of $100 million or more focus of the CISWI part or this rule.

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Thus, Executive Order 13175 does not The EPA has determined that this the Code of Federal Regulations are apply to this action. final rule will not have amended as follows: disproportionately high and adverse G. Executive Order 13045: Protection of human health or environmental effects PART 60—STANDARDS OF Children From Environmental Health on minority or low-income populations PERFORMANCE FOR NEW Risks and Safety Risks because it increases the level of STATIONARY SOURCES The EPA interprets Executive Order environmental protection for all affected ■ 13045 (62 FR 19885, April 23, 1997) as populations without having any 1. The authority for part 60 continues applying to those regulatory actions that disproportionately high and adverse to read as follows: concern health or safety risks, such that human health or environmental effects Authority: 42 U.S.C. 7401, et seq. the analysis required under section 5– on any population, including any ■ 2. Effective February 7, 2013, the May 501 of the Executive Order has the minority or low-income population. The potential to influence the regulation. 18, 2011 (76 FR 28662), delay of the amendments do not relax the control effective date amending subparts CCCC This action is not subject to Executive measures on sources regulated by the Order 13045 because it is based solely and DDDD, at 76 FR 15703 (March 21, CISWI rule, and, therefore, will not 2011), is lifted. on technology performance and cause emissions increases from these technical corrections. sources. The March 2011 final CISWI Subpart CCCC—[Amended] H. Executive Order 13211: Actions rule will reduce emissions of all the Concerning Regulations That listed HAP emitted from this source. ■ 3. Section 60.2005 is revised to read Significantly Affect Energy Supply, Furthermore, the targeted revisions as follows: Distribution, or Use finalized in the NHSM section of this rule are designed to improve the § 60.2005 When does this subpart become effective? This action is not subject to Executive management of these materials, thereby Order 13211 (66 FR 28355, May 22, helping to further ensure against any This subpart takes effect on August 7, 2001), because it is not likely to have a disproportionately high and adverse 2013. Some of the requirements in this significant adverse effect on the supply, human health or environmental effects subpart apply to planning the CISWI distribution, or use of energy. on minority or low-income populations. unit (i.e., the preconstruction requirements in §§ 60.2045 and I. National Technology Transfer and K. Congressional Review Act 60.2050). Other requirements such as Advancement Act The Congressional Review Act, 5 the emission limitations and operating Section 12(d) of the NTTAA of 1995, U.S.C. 801 et seq., as added by the limits apply after the CISWI unit begins Public Law 104–113, 12(d) (15 U.S.C. SBREFA of 1996, generally provides operation. 272 note) directs the EPA to use VCS in that before a rule may take effect, the ■ 4. Section 60.2015 is amended by its regulatory activities, unless to do so agency promulgating the rule must revising paragraphs (a)(1) and (2) and (b) would be inconsistent with applicable submit a rule report, which includes a to read as follows: law or otherwise impractical. Voluntary copy of the rule, to each House of the consensus standards are technical § 60.2015 What is a new incineration unit? Congress and to the Comptroller General standards (e.g., materials specifications, of the United States. The EPA will (a) * * * test methods, sampling procedures and submit a report containing this rule and (1) A CISWI unit that commenced business practices) that are developed or other required information to the U.S. construction after June 4, 2010. adopted by VCS bodies. The NTTAA Senate, the U.S. House of (2) A CISWI unit that commenced directs the EPA to provide Congress, Representatives and the Comptroller reconstruction or modification after through OMB, explanations when the General of the United States prior to August 7, 2013. agency decides not use available and (b) This subpart does not affect your publication of the rule in the Federal applicable VCS. CISWI unit if you make physical or Register. A major rule cannot take effect This action does not involve any operational changes to your incineration until 60 days after it is published in the revisions to the technical standards or unit primarily to comply with subpart Federal Register. This action is not a test methods required in the final CISWI DDDD of this part (Emission Guidelines ‘‘major rule’’ as defined by 5 U.S.C. rule. Therefore, the EPA did not and Compliance Times for Commercial 804(2). This rule will be effective reconsider the use of any VCS. and Industrial Solid Waste Incineration February 7, 2013. J. Executive Order 12898: Federal Units). Such changes do not qualify as Actions To Address Environmental List of Subjects reconstruction or modification under this subpart. Justice in Minority Populations and 40 CFR Part 60 Low-Income Populations ■ 5. Section 60.2020 is amended by: Environmental protection, ■ a. Revising paragraph (c). Executive Order 12898 (59 FR 7629, Administrative practice and procedure, ■ b. Revising paragraph (e)(3). February 16, 1994) establishes federal Air pollution control, Hazardous ■ c. Adding paragraph (e)(4). executive policy on EJ. Its main substances, Incorporation by reference. ■ d. Revising paragraph (f)(3). provision directs federal agencies, to the ■ 40 CFR Part 241 e. Adding paragraph (f)(4). greatest extent practicable and ■ f. Revising paragraph (n). permitted by law, to make EJ part of Environmental protection, air ■ g. Adding paragraph (o). their mission by identifying and pollution control, waste treatment and The revisions and additions read as addressing, as appropriate, disposal. follows: disproportionately high and adverse human health or environmental effects Dated: December 20, 2012. § 60.2020 What combustion units are of their programs, policies and activities Lisa P. Jackson, exempt from this subpart? on minority populations and low- Administrator. * * * * * income populations in the United For the reasons cited in the preamble, (c) Municipal waste combustion units. States. Title 40, chapter I, parts 60 and 241 of Incineration units that are subject to

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subpart Ea of this part (Standards of (b) You must prepare a siting analysis (f) If you use selective noncatalytic Performance for Municipal Waste for CISWI units that commenced reduction to comply with the emission Combustors); subpart Eb of this part construction after June 4, 2010, or that limitations, you must measure the (Standards of Performance for Large commenced reconstruction or charge rate, the secondary chamber Municipal Waste Combustors); subpart modification after August 7, 2013. temperature (if applicable to your CISWI Cb of this part (Emission Guidelines and * * * * * unit), and the reagent flow rate during the nitrogen oxides performance testing. Compliance Time for Large Municipal ■ 8. Section 60.2105 is amended by The operating limits for the selective Combustors); subpart AAAA of this part revising paragraph (b) to read as follows: (Standards of Performance for Small noncatalytic reduction are calculated as Municipal Waste Combustion Units); or § 60.2105 What emission limitations must I the highest 1-hour average charge rate, subpart BBBB of this part (Emission meet and by when? lower secondary chamber temperature, Guidelines for Small Municipal Waste * * * * * and lowest reagent flow rate measured Combustion Units). (b) An incinerator unit that during the most recent performance test * * * * * commenced construction after demonstrating compliance with the (e) * * * November 30, 1999, but no later than nitrogen oxides emission limitations. (3) You submit documentation to the June 4, 2010, or that commenced (g) If you use a dry scrubber to comply Administrator notifying the EPA that reconstruction or modification on or with the emission limitations, you must the qualifying small power production after June 1, 2001 but no later than measure the injection rate of each sorbent during the performance testing. facility is combusting homogenous August 7, 2013, must meet the more The operating limit for the injection rate waste. stringent emission limit for the of each sorbent is calculated as the (4) You maintain the records specified respective pollutant in table 1 of this lowest 1-hour average injection rate or in § 60.2175(w). subpart or table 6 of subpart DDDD. each sorbent measured during the most (f) * * * ■ 9. Section 60.2110 is amended by: recent performance test demonstrating (3) You submit documentation to the ■ a. Revising paragraphs (a)(2), (e), and compliance with the hydrogen chloride Administrator notifying the Agency that (f). emission limitations. For energy the qualifying cogeneration facility is ■ b. Redesignating paragraph (g) as recovery units, when your unit operates combusting homogenous waste. paragraph (h) and revising newly at lower loads, multiply your sorbent (4) You maintain the records specified designated paragraph (h). ■ injection rate by the load fraction, as in § 60.2175(x). c. Adding paragraphs (g) and (i). defined in this subpart, to determine the * * * * * The revisions and additions read as required injection rate (e.g., for 50 (n) Sewage sludge incineration units. follows: percent load, multiply the injection rate Incineration units combusting sewage § 60.2110 What operating limits must I operating limit by 0.5). sludge for the purpose of reducing the meet and by when? (h) If you do not use a wet scrubber, volume of the sewage sludge by (a) * * * electrostatic precipitator, or fabric filter removing combustible matter that are to comply with the emission limitations, (2) Minimum pressure drop across the subject to subpart LLLL of this part and if you do not determine compliance wet particulate matter scrubber, which (Standards of Performance for Sewage with your particulate matter emission is calculated as the lowest 1-hour Sludge Incineration Units) or subpart limitation with a particulate matter average pressure drop across the wet MMMM of this part (Emission CEMS, you must maintain opacity to scrubber measured during the most Guidelines for Sewage Sludge less than or equal to 10 percent opacity recent performance test demonstrating Incineration Units). (1-hour block average). (o) Other solid waste incineration compliance with the particulate matter (i) If you use a PM CPMS to units. Incineration units that are subject emission limitations; or minimum demonstrate compliance, you must to subpart EEEE of this part (Standards amperage to the wet scrubber, which is establish your PM CPMS operating limit of Performance for Other Solid Waste calculated as the lowest 1-hour average and determine compliance with it Incineration Units) or subpart FFFF of amperage to the wet scrubber measured according to paragraphs (i)(1) through this part (Emission Guidelines and during the most recent performance test (5) of this section. Compliance Times for Other Solid demonstrating compliance with the (1) Determine your operating limit as Waste Incineration Units). particulate matter emission limitations. the average PM CPMS output value ■ 6. Section 60.2030 is amended by * * * * * recorded during the performance test or revising paragraph (c)(10) to read as (e) If you use activated carbon sorbent at a PM CPMS output value follows: injection to comply with the emission corresponding to 75% of the emission limitations, you must measure the limit if your PM performance test § 60.2030 Who implements and enforces sorbent flow rate during the demonstrates compliance below 75% of this subpart? performance testing. The operating limit the emission limit. You must verify an * * * * * for the carbon sorbent injection is existing or establish a new operating (c) * * * calculated as the lowest 1-hour average limit after each repeated performance (10) Determination of whether a sorbent flow rate measured during the test. You must repeat the performance qualifying small power production most recent performance test test annually and reassess and adjust the facility or cogeneration facility under demonstrating compliance with the site-specific operating limit in § 60.2020(e) or (f) is combusting mercury emission limitations. For accordance with the results of the homogenous waste. energy recovery units, when your unit performance test. ■ 7. Section 60.2045 is amended by operates at lower loads, multiply your (A) Your PM CPMS must provide a 4– revising paragraph (b) to read as follows: sorbent injection rate by the load 20 milliamp output and the fraction, as defined in this subpart, to establishment of its relationship to § 60.2045 Who must prepare a siting determine the required injection rate manual reference method measurements analysis? (e.g., for 50 percent load, multiply the must be determined in units of * * * * * injection rate operating limit by 0.5). milliamps.

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(B) Your PM CPMS operating range (2) If the average of your three PM removing the extractive probe from the must be capable of reading PM performance test runs are below 75% of stack and drawing in clean ambient air. concentrations from zero to a level your PM emission limit, you must (C) The zero point can also can be equivalent to at least two times your calculate an operating limit by established obtained by performing allowable emission limit. If your PM establishing a relationship of PM CPMS manual reference method measurements CPMS is an auto-ranging instrument signal to PM concentration using the PM when the flue gas is free of PM capable of multiple scales, the primary CPMS instrument zero, the average PM emissions or contains very low PM range of the instrument must be capable CPMS values corresponding to the three concentrations (e.g., when your process of reading PM concentration from zero compliance test runs, and the average is not operating, but the fans are to a level equivalent to two times your PM concentration from the Method 5 or operating or your source is combusting allowable emission limit. performance test with the procedures in only natural gas) and plotting these with (i)(1)through (5) of this section. the compliance data to find the zero (C) During the initial performance test (i) Determine your instrument zero intercept. or any such subsequent performance output with one of the following (D) If none of the steps in paragraphs test that demonstrates compliance with procedures: (i)(2)(i) through (iv) of this section are the PM limit, record and average all (A) Zero point data for in-situ possible, you must use a zero output milliamp output values from the PM instruments should be obtained by value provided by the manufacturer. CPMS for the periods corresponding to removing the instrument from the stack (ii) Determine your PM CPMS the compliance test runs (e.g., average and monitoring ambient air on a test instrument average in milliamps, and all your PM CPMS output values for bench. the average of your corresponding three three corresponding 2-hour Method 5I (B) Zero point data for extractive PM compliance test runs, using test runs). instruments should be obtained by equation 1.

Where: Ol = the operating limit for your PM CPMS arithmetic average operating parameter X1 = the PM CPMS data points for the three on a 30-day rolling average, in in units of the operating limit (e.g., runs constituting the performance test, milliamps. milliamps, PM concentration, raw data L = your source emission limit expressed Y1 = the PM concentration value for the signal) on a 30-day rolling average basis. three runs constituting the performance in lb/Mmbtu, z = your instrument zero in milliamps, (5) For PM performance test reports test, and used to set a PM CPMS operating limit, n = the number of data points. determined from (2)(a), and R = the relative mg/dscm per milliamp for the electronic submission of the test (iii) With your instrument zero your PM CPMS, from Equation 3. report must also include the make and expressed in milliamps, your three run (3) If the average of your three PM model of the PM CPMS instrument, average PM CPMS milliamp value, and compliance test runs is at or above 75% serial number of the instrument, your three run average PM of your PM emission limit you must analytical principle of the instrument concentration from your three determine your operating limit by (e.g., beta attenuation), span of the compliance tests, determine a averaging the PM CPMS milliamp instruments primary analytical range, relationship of lb/Mmbtu per milliamp output corresponding to your three PM milliamp value equivalent to the with equation 2. performance test runs that demonstrate instrument zero output, technique by compliance with the emission limit which this zero value was determined, using equation 4 and you must submit and the average milliamp signals all compliance test and PM CPMS data corresponding to each PM compliance according to the reporting requirements test run. Where: in paragraph (i)(5) of this section. ■ 10. Section 60.2115 is amended by R = the relative mg/dscm per milliamp for revising the section heading and the your PM CPMS, introductory text to read as follows: Y1 = the three run average mg/dscm PM concentration, § 60.2115 What if I do not use a wet X = the three run average milliamp output scrubber, fabric filter, activated carbon 1 Where: from you PM CPMS, and injection, selective noncatalytic reduction, z = the milliamp equivalent of your X1 = the PM CPMS data points for all runs an electrostatic precipitator, or a dry instrument zero determined from (2)(i). i, scrubber to comply with the emission n = the number of data points, and limitations? (iv) Determine your source specific Oh = your site specific operating limit, in If you use an air pollution control 30-day rolling average operating limit milliamps. device other than a wet scrubber, using the mg/dscm per milliamp value (4) To determine continuous activated carbon injection, selective from Equation 2 in equation 3, below. compliance, you must record the PM noncatalytic reduction, fabric filter, an This sets your operating limit at the PM CPMS output data for all periods when electrostatic precipitator, or a dry CPMS output value corresponding to the process is operating and the PM scrubber or limit emissions in some 75% of your emission limit. CPMS is not out-of-control. You must other manner, including material demonstrate continuous compliance by balances, to comply with the emission using all quality-assured hourly average limitations under § 60.2105, you must data collected by the PM CPMS for all petition the EPA Administrator for Where: operating hours to calculate the specific operating limits to be

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established during the initial and good air pollution control practices; identification criteria 1 and 7. You must performance test and continuously and quantify the isomers per Section 9.0 of monitored thereafter. You must submit (7) All of the actions in response to Method 23. (Note: You may reanalyze the petition at least sixty days before the the violation were documented by the sample aliquot or split to reduce the performance test is scheduled to begin. properly signed, contemporaneous number of isomers not meeting Your petition must include the five operating logs; and identification criteria 1 or 7 of Section items listed in paragraphs (a) through (e) (8) At all times, the affected source 5.3.2.5.) of this section. was operated in a manner consistent (3) For each dioxin/furan (tetra- * * * * * with good practices for minimizing through octa-chlorinated) isomer emissions; and ■ 11. Section 60.2120 is revised to read measured in accordance with paragraph (9) A written root cause analysis has as follows: (g)(1) and (2) of this section, multiply been prepared, the purpose of which is the isomer concentration by its § 60.2120 Affirmative defense for violation to determine, correct, and eliminate the corresponding toxic equivalency factor of emission standards during malfunction. primary causes of the malfunction and specified in table 3 of this subpart. In response to an action to enforce the the violation resulting from the (4) Sum the products calculated in standards set forth in paragraph malfunction event at issue. The analysis accordance with paragraph (g)(3) of this § 60.2105 you may assert an affirmative shall also specify, using best monitoring section to obtain the total concentration defense to a claim for civil penalties for methods and engineering judgment, the of dioxins/furans emitted in terms of violations of such standards that are amount of any emissions that were the toxic equivalency. caused by malfunction, as defined at 40 result of the malfunction. * * * * * CFR 60.2. Appropriate penalties may be (b) Report. The owner or operator (i) If you have an applicable opacity assessed if you fail to meet your burden seeking to assert an affirmative defense operating limit, you must determine of proving all of the requirements in the shall submit a written report to the compliance with the opacity limit using affirmative defense. The affirmative Administrator with all necessary Method 9 at 40 CFR part 60, appendix defense shall not be available for claims supporting documentation, that it has A–4 of this part, based on three 1-hour for injunctive relief. met the requirements set forth in blocks consisting of ten 6-minute (a) Assertion of affirmative defense. paragraph (a) of this section. This average opacity values, unless you are To establish the affirmative defense in affirmative defense report shall be required to install a continuous opacity any action to enforce such a standard, included in the first periodic monitoring system, consistent with you must timely meet the reporting compliance, deviation report or excess §§ 60.2145 and 60.2165. requirements in paragraph (b) of this emission report otherwise required after (j) You must determine dioxins/furans section, and must prove by a the initial occurrence of the violation of total mass basis by following the preponderance of evidence that: the relevant standard (which may be the procedures in paragraphs (j)(1) through (1) The violation: end of any applicable averaging period). (3) of this section. (i) Was caused by a sudden, If such compliance, deviation report or (1) Measure the concentration of each infrequent, and unavoidable failure of excess emission report is due less than dioxin/furan tetra-through octa- air pollution control equipment, process 45 days after the initial occurrence of chlorinated isomer emitted using EPA equipment, or a process to operate in a the violation, the affirmative defense Method 23 at 40 CFR part 60, appendix normal or usual manner; and report may be included in the second A–7. (ii) Could not have been prevented compliance, deviation report or excess (2) Quantify isomers meeting through careful planning, proper design emission report due after the initial identification criteria 2, 3, 4, and 5 in or better operation and maintenance occurrence of the violation of the Section 5.3.2.5 of Method 23, regardless practices; and (iii) Did not stem from relevant standard. of whether the isomers meet any activity or event that could have ■ 12. Section 60.2125 is amended by: identification criteria 1 and 7. You must been foreseen and avoided, or planned ■ a. Revising paragraph (g) introductory quantify the isomers per Section 9.0 of for; and text. Method 23. (Note: You may reanalyze (iv) Was not part of a recurring pattern ■ b. Redesignating paragraphs (g)(2) and the sample aliquot or split to reduce the indicative of inadequate design, (3) as paragraphs (g)(3) and (4), number of isomers not meeting operation, or maintenance; and respectively. identification criteria 1 or 7 of Section (2) Repairs were made as ■ c. Revising newly designated 5.3.2.5.) expeditiously as possible when a paragraphs (g)(3) and (4). (3) Sum the quantities measured in violation occurred; and ■ d. Adding new paragraph (g)(2). accordance with paragraphs (j)(1) and (3) The frequency, amount, and ■ e. Revising paragraph (i). (2) of this section to obtain the total duration of the violation (including any ■ f. Adding paragraph (j). concentration of dioxins/furans emitted bypass) were minimized to the The revisions and additions read as in terms of total mass basis. maximum extent practicable; and follows: ■ 13. Section 60.2140 is amended by (4) If the violation resulted from a revising paragraph (c) to read as follows: bypass of control equipment or a § 60.2125 How do I conduct the initial and process, then the bypass was annual performance test? § 60.2140 By what date must I conduct the unavoidable to prevent loss of life, * * * * * initial performance test? personal injury, or severe property (g) You must determine dioxins/ * * * * * damage; and furans toxic equivalency by following (c) If you commence combusting or (5) All possible steps were taken to the procedures in paragraphs (g)(1) recommence combusting a solid waste minimize the impact of the violation on through (4) of this section. at an existing combustion unit at any ambient air quality, the environment, * * * * * commercial or industrial facility and and human health; and (2) Quantify isomers meeting you have not conducted a performance (6) All emissions monitoring and identification criteria 2, 3, 4, and 5 in test consistent with the provisions of control systems were kept in operation Section 5.3.2.5 of Method 23, regardless this subpart while combusting the solid if at all possible, consistent with safety of whether the isomers meet waste within the 6 months preceding

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the reintroduction of that solid waste in different averaging period is established the procedures in § 60.2165(n) instead the combustion chamber, you must under § 60.2115 or, for energy recovery of the particulate matter continuous conduct a performance test within 60 units, where the averaging time for each parameter monitoring system (CPMS) days commencing or recommencing operating parameter is a 30-day rolling, specified in § 60.2145. Coal and liquid/ solid waste combustion. calculated each hour as the average of gas energy recovery units with annual ■ 14. Section 60.2145 is amended by: the previous 720 operating hours. average heat input rates less than 250 ■ a. Revising paragraph (a)(6). Operation above the established MMBtu/hr, incinerators, and small ■ b. Revising paragraphs (b) through (d). maximum, below the established remote incinerators may also elect to ■ c. Revising paragraphs (f) through (j). minimum, or outside the allowable demonstrate compliance using a ■ d. Revising paragraph (m)(2). range of operating limits specified in particulate matter CEMS according to ■ e. Revising paragraph (n)(4). paragraph (a) of this section constitutes the procedures in § 60.2165(n) instead ■ f. Revising paragraphs (s) introductory a deviation from your operating limits of particulate matter testing with EPA text, (s)(1) introductory text, and (s)(2). established under this subpart, except Method 5 at 40 CFR part 60, appendix ■ g. Revising paragraph (t) introductory during performance tests conducted to A–3 and, if applicable, the continuous text and (t)(1) introductory text. determine compliance with the opacity monitoring requirements in ■ h. Revising paragraph (u). emission and operating limits or to paragraph (i) of this section. ■ i. Adding paragraphs (w) and (x). establish new operating limits. (i) For energy recovery units with The revisions and additions read as Operating limits are confirmed or annual average heat input rates greater follows: reestablished during performance tests. than or equal to 10 MMBtu/hour and (d) You must burn only the same less than 250 MMBtu/hr, you must § 60.2145 How do I demonstrate install, operate, certify and maintain a continuous compliance with the emission types of waste and fuels used to limitations and the operating limits? establish subcategory applicability (for continuous opacity monitoring system (COMS) according to the procedures in (a) * * * energy recovery units) and operating limits during the performance test. § 60.2165. (6) All monitoring systems necessary (j) For waste-burning kilns, you must for compliance with any newly * * * * * conduct an annual performance test for applicable monitoring requirements (f) For energy recovery units, you cadmium, lead, dioxins/furans and which apply as a result of the cessation must conduct an annual performance hydrogen chloride as listed in table 7 of or commencement or recommencement test for opacity (except where this subpart. You must determine of combusting solid waste must be particulate matter CEMS or continuous compliance with hydrogen chloride installed and operational as of the opacity monitoring systems are used are using a hydrogen chloride CEMS if you effective date of the waste-to-fuel, or used) and the pollutants listed in table do not use an acid gas wet scrubber or fuel-to-waste switch. All calibration and 6 of this subpart. dry scrubber. You must determine drift checks must be performed as of the (g) You may elect to demonstrate compliance with nitrogen oxides, sulfur effective date of the waste-to-fuel, or continuous compliance with the carbon dioxide, and carbon monoxide using fuel-to-waste switch. Relative accuracy monoxide emission limit using a carbon CEMS. You must determine compliance tests must be performed as of the monoxide CEMS according to the with particulate matter using CPMS. performance test deadline for PM CEMS following requirements: You must determine compliance with (if PM CEMS are elected to demonstrate (1) You must measure emissions the mercury emissions limit using a continuous compliance with the according to § 60.13 to calculate 1-hour mercury CEMS according to the particulate matter emission limits). arithmetic averages, corrected to 7 following requirements: Relative accuracy testing for other percent oxygen. CEMS data during (1) Operate a CEMS system in CEMS need not be repeated if that startup and shutdown, as defined in this accordance with performance testing was previously performed subpart, are not corrected to 7 percent specification 12A of 40 CFR part 60, consistent with Clean Air Act section oxygen, and are measured at stack appendix B or a sorbent trap based 112 monitoring requirements or oxygen content. You must demonstrate integrated monitor in accordance with monitoring requirements under this initial compliance with the carbon performance specification 12B of 40 subpart. monoxide emissions limit using a 30- CFR part 60, appendix B. The duration (b) You must conduct an annual day rolling average of these 1-hour of the performance test must be a performance test for the pollutants arithmetic average emission calendar month. For each calendar listed in table 1 of this subpart or tables concentrations, including CEMS data month in which the waste-burning kiln 5 through 8 of this subpart and opacity during startup and shutdown as defined operates, hourly mercury concentration for each CISWI unit as required under in this subpart, calculated using data, and stack gas volumetric flow rate § 60.2125. The annual performance test Equation 19–19 in section 12.4.1 of EPA data must be obtained. You must must be conducted using the test Reference Method 19 at 40 CFR part 60, demonstrate compliance with the methods listed in table 1 of this subpart appendix A–7 of this part. mercury emissions limit using a 30-day or tables 5 through 8 of this subpart and (2) Operate the carbon monoxide rolling average of these 1-hour mercury the procedures in § 60.2125. Annual CEMS in accordance with the concentrations, including CEMS data performance tests are not required if you requirements of performance during startup and shutdown as defined use CEMS or continuous opacity specification 4A of appendix B of this in this subpart, calculated using monitoring systems to determine part and quality assurance procedure 1 Equation 19–19 in section 12.4.1 of EPA compliance. of appendix F of this part. Reference Method 19 at 40 CFR part 60, (c) You must continuously monitor (h) Coal and liquid/gas energy appendix A–7 of this part. CEMS data the operating parameters specified in recovery units with average annual heat during startup and shutdown, as § 60.2110 or established under § 60.2115 input rates greater than or equal to 250 defined in this subpart, are not and as specified in § 60.2170. Use 3- MMBtu/hr may elect to demonstrate corrected to 7 percent oxygen, and are hour block average values to determine continuous compliance with the measured at stack oxygen content. compliance (except for baghouse leak particulate matter emissions limit using (2) Owners or operators using a detection system alarms) unless a a particulate matter CEMS according to mercury CEMS must install, operate,

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calibrate, and maintain an instrument oxygen (or carbon dioxide) data shutdown, as defined in the subpart, are for continuously measuring and concurrently (or within a 30- to 60- not corrected to 7 percent oxygen, and recording the mercury mass emissions minute period) with both the CEMS and are measured at stack oxygen content. rate to the atmosphere according to the the test methods specified in paragraphs (2) Operate all CEMS in accordance requirements of performance (s)(1)(i) and (ii) of this section. with the applicable procedures under specifications 6 and 12A of 40 CFR part * * * * * appendices B and F of this part. 60, appendix B, and quality assurance (2) The span value of the CEMS at the * * * * * procedure 6 of 40 CFR part 60, appendix inlet to the sulfur dioxide control device (w) For energy recovery units with a F. must be 125 percent of the maximum design heat input capacity of 100 (3) The owner or operator of a waste- estimated hourly potential sulfur MMBtu per hour or greater that do not burning kiln must demonstrate initial dioxide emissions of the unit subject to use a carbon monoxide CEMS, you must compliance by operating a mercury this rule. The span value of the CEMS install, operate, and maintain a oxygen CEMS while the raw mill of the in-line at the outlet of the sulfur dioxide analyzer system as defined in § 60.2265 kiln/raw mill is operating under normal control device must be 50 percent of the according to the procedures in conditions and including at least one maximum estimated hourly potential paragraphs (w)(1) through (4) of this period when the raw mill is off. sulfur dioxide emissions of the unit section. * * * * * subject to this rule. (1) The oxygen analyzer system must (m) * * * * * * * * be installed by the initial performance (2) Use a flow sensor with a (t) For facilities using a CEMS to test date specified in § 60.2675. measurement sensitivity at full scale of demonstrate continuous compliance (2) You must operate the oxygen trim no greater than 2 percent. with the nitrogen oxides emission limit, system within compliance with * * * * * compliance with the nitrogen oxides paragraph (w)(3) of this section at all (n) * * * emission limit may be demonstrated by times. (4) Perform checks at the frequency using the CEMS specified in § 60.2165 (3) You must maintain the oxygen outlined in your site-specific monitoring to measure nitrogen oxides. CEMS data level such that the 30-day rolling plan to ensure pressure measurements during startup and shutdown, as average that is established as the are not obstructed (e.g., check for defined in this subpart, are not operating limit for oxygen is not below pressure tap pluggage daily). corrected to 7 percent oxygen, and are the lowest hourly average oxygen * * * * * measured at stack oxygen content. You concentration measured during the most (s) For facilities using a CEMS to must calculate a 30-day rolling average recent CO performance test. demonstrate compliance with the sulfur of the 1-hour arithmetic average (4) You must calculate and record a dioxide emission limit, compliance with emission concentrations, including 30-day rolling average oxygen the sulfur dioxide emission limit may be CEMS data during startup and concentration using Equation 19–19 in demonstrated by using the CEMS shutdown as defined in this subpart, section 12.4.1 of EPA Reference Method specified in § 60.2165 to measure sulfur using Equation 19–19 in section 12.4.1 19 of Appendix A–7 of this part. dioxide. CEMS data during startup and of EPA Reference Method 19 at 40 CFR (x) For energy recovery units with shutdown, as defined in this subpart, part 60, appendix A–7 of this part. The annual average heat input rates greater are not corrected to 7 percent oxygen, nitrogen oxides CEMS must be operated than or equal to 250 MMBtu/hour and and are measured at stack oxygen according to performance specification waste-burning kilns, you must install, content. You must calculate a 30-day 2 in appendix B of this part and must calibrate, maintain, and operate a PM rolling average of the 1-hour arithmetic follow the procedures and methods CPMS and record the output of the average emission concentrations, specified in paragraphs (t)(1) through (5) system as specified in paragraphs (x)(1) including CEMS data during startup and of this section. through (8) of this section. For other shutdown as defined in this subpart, (1) During each relative accuracy test energy recovery units, you may elect to calculated using Equation 19–19 in run of the CEMS required by use PM CPMS operated in accordance section 12.4.1 of EPA Reference Method performance specification 2 of appendix with this section. PM CPMS are suitable 19 at 40 CFR part 60, Appendix A–7 of B of this part, collect nitrogen oxides in lieu of using other CMS for this part. The sulfur dioxide CEMS must and oxygen (or carbon dioxide) data monitoring PM compliance (e.g., bag be operated according to performance concurrently (or within a 30- to 60- leak detectors, ESP secondary power, specification 2 in appendix B of this minute period) with both the CEMS and PM scrubber pressure). part and must follow the procedures the test methods specified in paragraphs (1) Install, calibrate, operate, and and methods specified in this paragraph (t)(1)(i) and (ii) of this section. maintain your PM CPMS according to (s). For sources that have actual inlet * * * * * the procedures in your approved site- emissions less than 100 parts per (u) For facilities using a CEMS to specific monitoring plan developed in million dry volume, the relative demonstrate continuous compliance accordance with § 60.2145(l) and accuracy criterion for inlet sulfur with any of the emission limits of this (x)(1)(i) through (iii) of this section. dioxide CEMS should be no greater than subpart, you must complete the (i) The operating principle of the PM 20 percent of the mean value of the following: CPMS must be based on in-stack or reference method test data in terms of (1) Demonstrate compliance with the extractive light scatter, light the units of the emission standard, or 5 appropriate emission limit(s) using a 30- scintillation, beta attenuation, or mass parts per million dry volume absolute day rolling average of 1-hour arithmetic accumulation detection of the exhaust value of the mean difference between average emission concentrations, gas or representative sample. The the reference method and the CEMS, including CEMS data during startup and reportable measurement output from the whichever is greater. shutdown as defined in this subpart, PM CPMS must be expressed as (1) During each relative accuracy test calculated using Equation 19–19 in milliamps. run of the CEMS required by section 12.4.1 of EPA Reference Method (ii) The PM CPMS must have a cycle performance specification 2 in appendix 19 at 40 CFR part 60, appendix A–7 of time (i.e., period required to complete B of this part, collect sulfur dioxide and this part. CEMS data during startup and sampling, measurement, and reporting

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for each measurement) no longer than (iii) Any PM CPMS data recorded electrostatic precipitator, or a dry 60 minutes. during periods of CEMS data during scrubber to comply with the emission (iii) The PM CPMS must be capable of startup and shutdown, as defined in this limitations under § 60.2105, you must detecting and responding to particulate subpart. install, calibrate (to the manufacturers’ matter concentrations of no greater than (7) You must record and make specifications), maintain, and operate 0.5 mg/actual cubic meter. available upon request results of PM the equipment necessary to monitor (2) During the initial performance test CPMS system performance audits, as compliance with the site-specific or any such subsequent performance well as the dates and duration of operating limits established using the test that demonstrates compliance with periods from when the PM CPMS is out procedures in § 60.2115. the PM limit, you must adjust the site- of control until completion of the * * * * * specific operating limit in accordance corrective actions necessary to return (g) For waste-burning kilns not with the results of the performance test the PM CPMS to operation consistent equipped with a wet scrubber or dry according to the procedures specified in with your site-specific monitoring plan. scrubber, in place of hydrogen chloride § 60.2110. (8) For any deviation of the 30-day testing with EPA Method 321 at 40 CFR (3) Collect PM CPMS hourly average rolling average PM CPMS average value part 63, appendix A, an owner or output data for all energy recovery unit from the established operating operator must install, calibrate, or waste-burning kiln operating hours. parameter limit, you must: maintain, and operate a CEMS for Express the PM CPMS output as (i) Within 48 hours of the deviation, monitoring hydrogen chloride emissions milliamps. visually inspect the air pollution control discharged to the atmosphere and (4) Calculate the arithmetic 30-day device; record the output of the system. To rolling average of all of the hourly (ii) If inspection of the air pollution demonstrate continuous compliance average PM CPMS output collected control device identifies the cause of the with the hydrogen chloride emissions during all energy recovery unit or waste- deviation, take corrective action as soon limit for units other than waste-burning burning kiln operating hours data as possible and return the PM CPMS kilns not equipped with a wet scrubber (milliamps). measurement to within the established or dry scrubber, a facility may substitute (5) You must collect data using the value; and use of a hydrogen chloride CEMS for PM CPMS at all times the energy (iii) Within 30 days of the deviation conducting the hydrogen chloride recovery unit or waste-burning kiln is or at the time of the annual compliance annual performance test, monitoring the operating and at the intervals specified test, whichever comes first, conduct a minimum hydrogen chloride sorbent in paragraph (x)(1)(ii) of this section, PM emissions compliance test to flow rate, monitoring the minimum except for periods of monitoring system determine compliance with the PM scrubber liquor pH, and monitoring malfunctions, repairs associated with emissions limit and to verify. Within 45 minimum injection rate. monitoring system malfunctions, days of the deviation, you must re- (h) To demonstrate continuous required monitoring system quality establish the CPMS operating limit. You compliance with the particulate matter assurance or quality control activities are not required to conduct additional emissions limit, a facility may substitute (including, as applicable, calibration testing for any deviations that occur use of a particulate matter CEMS for checks and required zero and span between the time of the original conducting the PM annual performance adjustments), and any scheduled deviation and the PM emissions test and using other CMS for monitoring maintenance as defined in your site- compliance test required under this PM compliance (e.g., bag leak detectors, specific monitoring plan. paragraph. ESP secondary power, PM scrubber (6) You must use all the data collected (iv) PM CPMS deviations leading to pressure). during all energy recovery unit or waste- more than four required performance (i) To demonstrate continuous burning kiln operating hours in tests in a 12-month process operating compliance with the dioxin/furan assessing the compliance with your period (rolling monthly) constitute a emissions limit, a facility may substitute operating limit except: violation of this subpart. use of a continuous automated sampling (i) Any data collected during ■ 15. Section 60.2165 is amended by: system for the dioxin/furan annual monitoring system malfunctions, repairs ■ a. Revising paragraph (c). performance test. You must record the ■ associated with monitoring system b. Revising paragraphs (g) through (k). output of the system and analyze the ■ malfunctions, or required monitoring c. Revising paragraphs (l)(1) and (2). sample according to EPA Method 23 at ■ system quality assurance or quality d. Revising paragraph (m) 40 CFR part 60, appendix A–7 of this control activities conducted during introductory text. part. This option to use a continuous ■ monitoring system malfunctions are not e. Revising paragraph (n) introductory automated sampling system takes effect used in calculations (report any such text. ■ on the date a final performance periods in your annual deviation f. Removing paragraph (n)(14). specification applicable to dioxin/furan ■ g. Revising paragraphs (n)(6), (n)(7), report); from continuous monitors is published (n)(9) through (n)(11), (n)(12) (ii) Any data collected during periods in the Federal Register. The owner or introductory text, and (n)(12)(ii). when the monitoring system is out of operator who elects to continuously ■ h. Revising paragraphs (o)(1) and (2). control as specified in your site-specific sample dioxin/furan emissions instead ■ i. Adding paragraphs (q), (r), and (s). monitoring plan, repairs associated with The revisions and additions read as of sampling and testing using EPA periods when the monitoring system is follows: Method 23 at 40 CFR part 60, appendix out of control, or required monitoring A–7 must install, calibrate, maintain, system quality assurance or quality § 60.2165 What monitoring equipment and operate a continuous automated control activities conducted during out- must I install and what parameters must I sampling system and must comply with of-control periods are not used in monitor? the requirements specified in calculations (report emissions or * * * * * § 60.58b(p) and (q). A facility may operating levels and report any such (c) If you are using something other substitute continuous dioxin/furan periods in your annual deviation than a wet scrubber, activated carbon, monitoring for the minimum sorbent report); selective non-catalytic reduction, an flow rate, if activated carbon sorbent

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injection is used solely for compliance CEMS data during startup and owner or operator of an affected facility with the dioxin/furan emission limit. shutdown, as defined in this subpart, who continuously monitors particulate (j) To demonstrate continuous are not corrected to 7 percent oxygen, matter emissions instead of conducting compliance with the mercury emissions and are measured at stack oxygen performance testing using EPA Method limit, a facility may substitute use of a content. The 1-hour arithmetic averages 5 at 40 CFR part 60, appendix A–3 or, continuous automated sampling system must be calculated using the data points as applicable, monitor with a particulate for the mercury annual performance required under § 60.13(e)(2). matter CPMS according to paragraph (r) test. You must record the output of the (l) * * * of this section, must install, calibrate, system and analyze the sample at set (1) Install, calibrate, maintain, and maintain, and operate a CEMS and must intervals using any suitable operate a CEMS for measuring sulfur comply with the requirements specified determinative technique that can meet dioxide emissions discharged to the in paragraphs (n)(1) through (13) of this performance specification 12B. The atmosphere and record the output of the section. owner or operator who elects to system. The requirements under * * * * * continuously sample mercury emissions performance specification 2 of appendix (6) The owner or operator of an instead of sampling and testing using B of this part, the quality assurance affected facility must conduct an initial EPA Reference Method 29 or 30B at 40 requirements of procedure one of performance test for particulate matter CFR part 60, appendix A–8 of this part, appendix F of this part and procedures emissions as required under § 60.2125. ASTM D6784–02 (Reapproved 2008) under § 60.13 must be followed for Compliance with the particulate matter (incorporated by reference, see § 60.17), installation, evaluation, and operation emission limit, if PM CEMS are elected or an approved alternative method for of the CEMS. for demonstrating compliance, must be measuring mercury emissions, must (2) Following the date that the initial determined by using the CEMS install, calibrate, maintain, and operate performance test for sulfur dioxide is specified in this paragraph (n) to a continuous automated sampling completed or is required to be measure particulate matter. You must system and must comply with completed under § 60.2125, compliance calculate a 30-day rolling average of 1- performance specification 12A and with the sulfur dioxide emission limit hour arithmetic average emission quality assurance procedure 5, as well may be determined based on the 30-day concentrations, including CEMS data as the requirements specified in rolling average of the hourly arithmetic during startup and shutdown, as § 60.58b(p) and (q). A facility may average emission concentrations using defined in this subpart, using Equation substitute continuous mercury CEMS outlet data. The 1-hour arithmetic 19–19 in section 12.4.1 of EPA monitoring for the minimum sorbent averages must be expressed in parts per Reference Method 19 at 40 CFR part 60, flow rate, if activated carbon sorbent million corrected to 7 percent oxygen appendix A–7. injection is used solely for compliance (dry basis) and used to calculate the 30- (7) Compliance with the particulate with the mercury emission limit. day rolling average emission (k) To demonstrate continuous matter emission limit must be concentrations. CEMS data during compliance with the nitrogen oxides determined based on the 30-day rolling startup and shutdown, as defined in this emissions limit, a facility may substitute average calculated using Equation 19–19 subpart, are not corrected to 7 percent use of a CEMS for the nitrogen oxides in section 12.4.1 of EPA Reference oxygen, and are measured at stack annual performance test to demonstrate Method 19 at 40 CFR part 60, appendix oxygen content. The 1-hour arithmetic compliance with the nitrogen oxides A–7 from the 1-hour arithmetic average averages must be calculated using the emissions limits and monitoring the CEMS outlet data. data points required under § 60.13(e)(2). charge rate, secondary chamber * * * * * (m) For energy recovery units over 10 temperature, and reagent flow for (9) The 1-hour arithmetic averages selective noncatalytic reduction, if MMBtu/hr but less than 250 MMBtu/hr required under paragraph (n)(7) of this applicable. annual average heat input rates that do section must be expressed in milligrams (1) Install, calibrate, maintain, and not use a wet scrubber, fabric filter with per dry standard cubic meter corrected operate a CEMS for measuring nitrogen bag leak detection system, or particulate to 7 percent oxygen (dry basis) and must oxides emissions discharged to the matter CEMS, you must install, operate, be used to calculate the 30-day rolling atmosphere and record the output of the certify, and maintain a continuous average emission concentrations. CEMS system. The requirements under opacity monitoring system according to data during startup and shutdown, as performance specification 2 of appendix the procedures in paragraphs (m)(1) defined in this subpart, are not B of this part, the quality assurance through (5) of this section by the corrected to 7 percent oxygen, and are procedure one of appendix F of this part compliance date specified in § 60.2105. measured at stack oxygen content. The and the procedures under § 60.13 must Energy recovery units that use a CEMS 1-hour arithmetic averages must be be followed for installation, evaluation, to demonstrate initial and continuing calculated using the data points and operation of the CEMS. compliance according to the procedures required under § 60.13(e)(2). (2) Following the date that the initial in § 60.2165(n) are not required to (10) All valid CEMS data must be performance test for nitrogen oxides is install a continuous opacity monitoring used in calculating average emission completed or is required to be system and must perform the annual concentrations even if the minimum completed under § 60.2125, compliance performance tests for the opacity CEMS data requirements of paragraph with the emission limit for nitrogen consistent with § 60.2145(f). (n)(8) of this section are not met. oxides required under § 60.52b(d) must * * * * * (11) The CEMS must be operated be determined based on the 30-day (n) For coal and liquid/gas energy according to performance specification rolling average of the hourly emission recovery units, incinerators, and small 11 in appendix B of this part. concentrations using CEMS outlet data. remote incinerators, an owner or (12) During each relative accuracy test The 1-hour arithmetic averages must be operator may elect to install, calibrate, run of the CEMS required by expressed in parts per million by maintain, and operate a CEMS for performance specification 11 in volume corrected to 7 percent oxygen monitoring particulate matter emissions appendix B of this part, particulate (dry basis) and used to calculate the 30- discharged to the atmosphere and matter and oxygen (or carbon dioxide) day rolling average concentrations. record the output of the system. The data must be collected concurrently (or

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within a 30- to 60-minute period) by below the lowest hourly average oxygen burning kiln operating hours data both the CEMS and the following test concentration measured during the most (milliamps). methods. recent CO performance test. (5) You must collect data using the * * * * * (4) You must calculate and record a PM CPMS at all times the energy (ii) For oxygen (or carbon dioxide), 30-day rolling average oxygen recovery unit or waste-burning kiln is EPA Reference Method 3A or 3B, as concentration using Equation 19–19 in operating and at the intervals specified applicable, must be used. section 12.4.1 of EPA Reference Method in paragraph (r)(1)(ii) of this section, 19 of Appendix A–7 of this part. except for periods of monitoring system * * * * * (r) For energy recovery units with malfunctions, repairs associated with (o) * * * annual average heat input rates greater (1) Install, calibrate, maintain, and monitoring system malfunctions, than or equal to 250 MMBtu/hour and operate a CEMS for measuring carbon required monitoring system quality waste-burning kilns, you must install, monoxide emissions discharged to the assurance or quality control activities calibrate, maintain, and operate a PM atmosphere and record the output of the (including, as applicable, calibration CPMS and record the output of the system. The requirements under checks and required zero and span system as specified in paragraphs (r)(1) performance specification 4B of adjustments), and any scheduled through (8) of this section. If you elect appendix B of this part, the quality maintenance as defined in your site- to use a particulate matter CEMS as assurance procedure 1 of appendix F of specific monitoring plan. specified in paragraph (n) of this (6) You must use all the data collected this part and the procedures under section, you are not required to use a during all energy recovery unit or waste- § 60.13 must be followed for PM CPMS to monitor particulate matter burning kiln operating hours in installation, evaluation, and operation emissions. For other energy recovery assessing the compliance with your of the CEMS. operating limit except: (2) Following the date that the initial units, you may elect to use PM CPMS (i) Any data collected during performance test for carbon monoxide is operated in accordance with this monitoring system malfunctions, repairs completed or is required to be section. PM CPMS are suitable in lieu of associated with monitoring system completed under § 60.2140, compliance using other CMS for monitoring PM malfunctions, or required monitoring with the carbon monoxide emission compliance (e.g., bag leak detectors, ESP system quality assurance or quality limit may be determined based on the secondary power, PM scrubber control activities conducted during 30-day rolling average of the hourly pressure). (1) Install, calibrate, operate, and monitoring system malfunctions are not arithmetic average emission maintain your PM CPMS according to used in calculations (report any such concentrations, including CEMS data the procedures in your approved site- periods in your annual deviation during startup and shutdown as defined specific monitoring plan developed in report); in this subpart, using CEMS outlet data. accordance with § 60.2145(l) and (ii) Any data collected during periods Except for CEMS data during startup (r)(1)(i) through (iii) of this section. when the monitoring system is out of and shutdown, as defined in this (i) The operating principle of the PM control as specified in your site-specific subpart, the 1-hour arithmetic averages CPMS must be based on in-stack or monitoring plan, repairs associated with must be expressed in parts per million extractive light scatter, light periods when the monitoring system is corrected to 7 percent oxygen (dry basis) scintillation, beta attenuation, or mass out of control, or required monitoring and used to calculate the 30-day rolling accumulation detection of PM in the system quality assurance or quality average emission concentrations. CEMS or representative sample. control activities conducted during out- data during startup and shutdown, as The reportable measurement output of-control periods are not used in defined in this subpart, are not from the PM CPMS must be expressed calculations (report emissions or corrected to 7 percent oxygen, and are as milliamps. operating levels and report any such measured at stack oxygen content. The (ii) The PM CPMS must have a cycle periods in your annual deviation 1-hour arithmetic averages must be time (i.e., period required to complete report); calculated using the data points sampling, measurement, and reporting (iii) Any PM CPMS data recorded required under § 60.13(e)(2). for each measurement) no longer than during periods of CEMS data during * * * * * 60 minutes. startup and shutdown, as defined in this (q) For energy recovery units with a (iii) The PM CPMS must be capable of subpart. design heat input capacity of 100 detecting and responding to particulate (7) You must record and make MMBtu per hour or greater that do not matter concentrations of no greater than available upon request results of PM use a carbon monoxide CEMS, you must 0.5 mg/actual cubic meter. CPMS system performance audits, as install, operate, and maintain a oxygen (2) During the initial performance test well as the dates and duration of analyzer system as defined in § 60.2265 or any such subsequent performance periods from when the PM CPMS is out according to the procedures in test that demonstrates compliance with of control until completion of the paragraphs (q)(1) through (4) of this the PM limit, you must adjust the site- corrective actions necessary to return section. specific operating limit in accordance the PM CPMS to operation consistent (1) The oxygen analyzer system must with the results of the performance test with your site-specific monitoring plan. be installed by the initial performance according to the procedures specified in (8) For any deviation of the 30-day test date specified in § 60.2675. § 60.2110. rolling average PM CPMS average value (2) You must operate the oxygen trim (3) Collect PM CPMS hourly average from the established operating system within compliance with output data for all energy recovery unit parameter limit, you must: paragraph (q)(3) of this section at all or waste-burning kiln operating hours. (i) Within 48 hours of the deviation, times. Express the PM CPMS output as visually inspect the air pollution control (3) You must maintain the oxygen milliamps. device; level such that the 30-day rolling (4) Calculate the arithmetic 30-day (ii) If inspection of the air pollution average that is established as the rolling average of all of the hourly control device identifies the cause of the operating limit for oxygen according to average PM CPMS output collected deviation, take corrective action as soon paragraph (q)(4) or this section is not during all energy recovery unit or waste- as possible and return the PM CPMS

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measurement to within the established you must maintain data collected for all (x) Records of the criteria used to value; and operating parameters used to determine establish that the unit qualifies as a (iii) Within 30 days of the deviation compliance with the operating limits. cogeneration facility under section or at the time of the annual compliance For energy recovery units using 3(18)(B) of the Federal Power Act (16 test, whichever comes first, conduct a activated carbon injection or a dry U.S.C. 796(18)(B)) and that the waste PM emissions compliance test to scrubber, you must also maintain material the unit is proposed to burn is determine compliance with the PM records of the load fraction and homogeneous. emissions limit and to verify. Within 45 corresponding sorbent injection rate ■ 18. Section 60.2210 is amended by days of the deviation, you must re- records. revising paragraph (m) introductory text establish the CPMS operating limit. You * * * * * and paragraph (n) to read as follows: are not required to conduct additional (e) Identification of calendar dates testing for any deviations that occur § 60.2210 What information must I include and times for which data show a in my annual report? between the time of the original deviation from the operating limits in deviation and the PM emissions table 2 of this subpart or a deviation * * * * * compliance test required under this from other operating limits established (m) If there were periods during paragraph. under § 60.2110(d) through (g) or which the continuous monitoring (iv) PM CPMS deviations leading to § 60.2115 with a description of the system, including the CEMS, was out of more than four required performance deviations, reasons for such deviations, control as specified in paragraph (o) of tests in a 12-month process operating and a description of corrective actions this section, the annual report must period (rolling monthly) constitute a taken. contain the following information for violation of this subpart. each deviation from an emission or (s) If you use a dry scrubber to comply * * * * * operating limitation occurring for a with the emission limits of this subpart, (p) * * * CISWI unit for which you are using a you must monitor the injection rate of (4) All 1-hour average concentrations continuous monitoring system to each sorbent and maintain the 3-hour of carbon monoxide emissions. You comply with the emission and operating block averages at or above the operating must indicate which data are CEMS data limitations in this subpart. during startup and shutdown. limits established during the hydrogen * * * * * chloride performance test. * * * * * (n) If there were periods during which ■ 16. Section 60.2170 is amended by (8) All 1-hour average percent oxygen the continuous monitoring system, revising paragraph (b) to read as follows: concentrations. including the CEMS, was not out of (9) All 1-hour average PM CPMS § 60.2170 Is there a minimum amount of control as specified in paragraph (o) of monitoring data I must obtain? readings or particulate matter CEMS this section, a statement that there were outputs. * * * * * not periods during which the (b) You may not use data recorded * * * * * continuous monitoring system was out during monitoring system malfunctions (v) For operating units that combust of control during the reporting period. or out-of-control periods, repairs non-hazardous secondary materials that * * * * * associated with monitoring system have been determined not to be solid ■ 19. Section 60.2235 is revised to read malfunctions or out-of-control periods, waste pursuant to § 241.3(b)(1) of this as follows: or required monitoring system quality chapter, you must keep a record which assurance or control activities in documents how the secondary material § 60.2235 In what form can I submit my calculations used to report emissions or meets each of the legitimacy criteria reports? operating levels. You must use all the under § 241.3(d)(1). If you combust a (a) Submit initial, annual, and data collected during all other periods fuel that has been processed from a deviation reports electronically or in in assessing the operation of the control discarded non-hazardous secondary paper format, postmarked on or before device and associated control system. material pursuant to § 241.3(b)(4) of this the submittal due dates. chapter, you must keep records as to * * * * * (b) Submit results of performance how the operations that produced the ■ tests and CEMS performance evaluation 17. Section 60.2175 is amended by: fuel satisfies the definition of processing tests as follows. ■ a. Revising the introductory text. in § 241.2 and each of the legitimacy (1) Within 60 days after the date of ■ b. Revising paragraph (b)(5). criteria of § 241.3(d)(1) of this chapter. ■ c. Revising paragraph (e). completing each performance test as ■ d. Revising paragraph (p)(4). If the fuel received a non-waste required by this subpart, you must ■ e. Adding paragraphs (p)(8) and (p)(9). determination pursuant to the petition submit the results of the performance ■ f. Revising paragraphs (v) and (w). process submitted under § 241.3(c) of tests required by this subpart to EPA’s ■ g. Adding paragraph (x). this chapter, you must keep a record WebFIRE database by using the The revisions and additions read as that documents how the fuel satisfies Compliance and Emissions Data follows: the requirements of the petition process. Reporting Interface (CEDRI) that is For operating units that combust non- accessed through EPA’s Central Data § 60.2175 What records must I keep? hazardous secondary materials as fuel Exchange (CDX)(www.epa.gov/cdx). You must maintain the items (as per § 241.4, you must keep records Performance test data must be submitted applicable) as specified in paragraphs documenting that the material is a listed in the file format generated through use (a), (b), and (e) through (x) of this non-waste under § 241.4(a). of EPA’s Electronic Reporting Tool section for a period of at least 5 years: (w) Records of the criteria used to (ERT) (see http://www.epa.gov/ttn/chief/ * * * * * establish that the unit qualifies as a ert/index.html). Only data collected (b) * * * small power production facility under using test methods on the ERT Web site (5) For affected CISWI units that section 3(17)(C) of the Federal Power are subject to this requirement for establish operating limits for controls Act (16 U.S.C. 796(17)(C)) and that the submitting reports electronically to other than wet scrubbers under waste material the unit is proposed to WebFIRE. Owners or operators who § 60.2110(d) through (g) or § 60.2115, burn is homogeneous. claim that some of the information being

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submitted for performance tests is ‘‘Process change,’’ ‘‘Raw mill,’’ ‘‘Small, (1) Units burning only pulping liquors confidential business information (CBI) remote incinerator,’’ ‘‘Soil treatment (i.e., black liquor) that are reclaimed in must submit a complete ERT file unit,’’ ‘‘Solid waste incineration unit,’’ a pulping liquor recovery process and including information claimed to be CBI ‘‘Space heater,’’ and ‘‘Waste-burning reused in the pulping process. on a compact disk, flash drive, or other kiln.’’ (2) Units burning only spent sulfuric commonly used electronic storage ■ c. Removing the definition for acid used to produce virgin sulfuric media to EPA. The electronic media ‘‘Homogeneous wastes’’ and ‘‘Cyclonic acid. must be clearly marked as CBI and barrel burner.’’ (3) Units burning only wood or coal mailed to U.S. EPA/OAPQS/CORE CBI The revisions and additions read as feedstock for the production of charcoal. Office, Attention: WebFIRE follows: (4) Units burning only manufacturing Administrator, MD C404–02, 4930 Old § 60.2265 What definitions must I know? byproduct streams/residue containing Page Rd., Durham, NC 27703. The same catalyst metals that are reclaimed and * * * * * ERT file with the CBI omitted must be reused as catalysts or used to produce 30-day rolling average means the submitted to EPA via CDX as described arithmetic mean of the previous 720 commercial grade catalysts. earlier in this paragraph. At the hours of valid operating data. Valid data (5) Units burning only coke to discretion of the delegated authority, excludes periods when this unit is not produce purified carbon monoxide that you must also submit these reports, operating. The 720 hours should be is used as an intermediate in the including the confidential business consecutive, but not necessarily production of other chemical information, to the delegated authority continuous if operations are compounds. in the format specified by the delegated intermittent. (6) Units burning only hydrocarbon authority. For any performance test liquids or solids to produce hydrogen, conducted using test methods that are * * * * * carbon monoxide, synthesis gas, or Annual heat input means the heat not listed on the ERT Web site, the other gases for use in other input for the 12 months preceding the owner or operator shall submit the manufacturing processes. compliance demonstration. results of the performance test in paper (7) Units burning only photographic submissions to the Administrator. * * * * * film to recover silver. Average annual heat input rate means (2) Within 60 days after the date of * * * * * completing each CEMS performance annual heat input divided by the hours of operation for the 12 months Commercial and industrial solid evaluation test, as defined in this preceding the compliance waste incineration (CISWI) unit means subpart and required by this subpart, demonstration. any distinct operating unit of any you must submit the relative accuracy commercial or industrial facility that test audit (RATA) data electronically * * * * * CEMS data during startup and combusts, or has combusted in the into EPA’s Central Data Exchange by preceding 6 months, any solid waste as using CEDRI as mentioned in paragraph shutdown means the following: (1) For incinerators, small remote that term is defined in 40 CFR part 241. (b)(1) of this section. Only RATA incinerators, and energy recovery units: If the operating unit burns materials pollutants that can be documented with CEMS data collected during the first other than traditional fuels as defined in the ERT (as listed on the ERT Web site) hours of a CISWI unit startup from a § 241.2 that have been discarded, and are subject to this requirement. For any cold start until waste is fed to the unit you do not keep and produce records as performance evaluations with no and the hours of operation following the required by § 60.2175(v), the operating corresponding RATA pollutants listed cessation of waste material being fed to unit is a CISWI unit. While not all on the ERT Web site, the owner or the CISWI unit during a unit shutdown. CISWI units will include all of the operator shall submit the results of the For each startup event, the length of following components, a CISWI unit performance evaluation in paper time that CEMS data may be claimed as includes, but is not limited to, the solid submissions to the Administrator. being CEMS data during startup must be waste feed system, grate system, flue gas ■ 20. Section 60.2265 is amended by: 48 operating hours or less. For each system, waste heat recovery equipment, ■ a. Adding in alphabetical order shutdown event, the length of time that if any, and bottom ash system. The definitions for ‘‘30-day rolling average,’’ CEMS data may be claimed as being CISWI unit does not include air ‘‘Annual heat input,’’ ‘‘Average annual CEMS data during shutdown must be 24 pollution control equipment or the heat input rate,’’ ‘‘CEMS data during operating hours or less. stack. The CISWI unit boundary starts at startup and shutdown,’’ ‘‘Contained (2) For waste-burning kilns: CEMS the solid waste hopper (if applicable) gaseous material,’’ ‘‘Continuous data collected during the periods of kiln and extends through two areas: The emission monitoring system,’’ ‘‘Dry operation that do not include normal combustion unit flue gas system, which scrubber,’’ ‘‘Foundry sand thermal operations. Startup begins when the ends immediately after the last reclamation unit,’’ ‘‘Load fraction,’’ kiln’s induced fan is turned on and combustion chamber or after the waste ‘‘Municipal solid waste or municipal continues until continuous feed is heat recovery equipment, if any; and the type solid waste,’’ ‘‘Oxygen analyzer introduced into the kiln, at which time combustion unit bottom ash system, system,’’ ‘‘Oxygen trim system,’’ the kiln is in normal operating mode. which ends at the truck loading station ‘‘Responsible official,’’ and ‘‘Solid Shutdown begins when feed to the kiln or similar equipment that transfers the waste.’’ is halted. ash to final disposal. The CISWI unit ■ b. Revising definitions for ‘‘Chemical Chemical recovery unit means includes all ash handling systems recovery unit,’’ ‘‘Commercial and combustion units burning materials to connected to the bottom ash handling industrial solid waste incineration recover chemical constituents or to system. (CISWI) unit,’’ ‘‘Continuous monitoring produce chemical compounds where Contained gaseous material means system (CMS),’’ ‘‘Cyclonic burn barrel,’’ there is an existing commercial market gases that are in a container when that ‘‘Energy recovery unit,’’ ‘‘Energy for such recovered chemical container is combusted. recovery unit designed to burn biomass constituents or compounds. The Continuous emission monitoring (Biomass),’’ ‘‘Incinerator,’’ following seven types of units are system (CEMS) means the total ‘‘Modification or modified CISWI unit,’’ considered chemical recovery units: equipment that may be required to meet

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the data acquisition and availability the purpose of reducing the volume of oxygen content of a gas stream and used requirements of this subpart, used to the waste by removing combustible to monitor oxygen in the boiler or sample, condition (if applicable), matter. Incinerator designs include process heater flue gas, boiler or process analyze, and provide a record of single chamber and two-chamber. heater, firebox, or other appropriate emissions. * * * * * location. This definition includes Continuous monitoring system (CMS) Load fraction means the actual heat oxygen trim systems and certified means the total equipment, required input of an energy recovery unit divided oxygen CEMS. The source owner or under the emission monitoring sections by heat input during the performance operator is responsible to install, in applicable subparts, used to sample test that established the minimum calibrate, maintain, and operate the and condition (if applicable), to analyze, sorbent injection rate or minimum oxygen analyzer system in accordance and to provide a permanent record of activated carbon injection rate, with the manufacturer’s emissions or process parameters. A expressed as a fraction (e.g., for 50 recommendations. particulate matter continuous parameter percent load the load fraction is 0.5). Oxygen trim system means a system of monitoring system (PM CPMS) is a type * * * * * monitors that is used to maintain excess of CMS. Modification or modified CISWI unit air at the desired level in a combustion Cyclonic burn barrel means a means a CISWI unit that has been device. A typical system consists of a combustion device for waste materials changed later than August 7, 2013 and flue gas oxygen and/or carbon monoxide that is attached to a 55 gallon, open- that meets one of two criteria: monitor that automatically provides a head drum. The device consists of a lid, (1) The cumulative cost of the changes feedback signal to the combustion air which fits onto and encloses the drum, over the life of the unit exceeds 50 controller. and a blower that forces combustion air percent of the original cost of building * * * * * into the drum in a cyclonic manner to and installing the CISWI unit (not Process change means any of the enhance the mixing of waste material including the cost of land) updated to following physical or operational and air. A cyclonic burn barrel is not an current costs (current dollars). To changes: incinerator, a waste-burning kiln, an determine what systems are within the (1) A physical change (maintenance energy recovery unit or a small, remote boundary of the CISWI unit used to activities excluded) to the CISWI unit incinerator under this subpart. calculate these costs, see the definition which may increase the emission rate of * * * * * of CISWI unit. any air pollutant to which a standard Dry scrubber means an add-on air (2) Any physical change in the CISWI applies; pollution control system that injects dry unit or change in the method of (2) An operational change to the alkaline sorbent (dry injection) or sprays operating it that increases the amount of CISWI unit where a new type of non- an alkaline sorbent (spray dryer) to react any air pollutant emitted for which hazardous secondary material is being with and neutralize acid gas in the section 129 or section 111 of the Clean combusted; exhaust stream forming a dry powder Air Act has established standards. (3) A physical change (maintenance material. Sorbent injection systems in Municipal solid waste or municipal- activities excluded) to the air pollution fluidized bed boilers and process type solid waste means household, control devices used to comply with the heaters are included in this definition. commercial/retail, or institutional emission limits for the CISWI unit (e.g., A dry scrubber is a dry control system. waste. Household waste includes replacing an electrostatic precipitator * * * * * material discarded by residential with a fabric filter); Energy recovery unit means a dwellings, hotels, motels, and other (4) An operational change to the air combustion unit combusting solid waste similar permanent or temporary pollution control devices used to (as that term is defined by the housing. Commercial/retail waste comply with the emission limits for the Administrator in 40 CFR part 241) for includes material discarded by stores, affected CISWI unit (e.g., change in the energy recovery. Energy recovery units offices, restaurants, warehouses, sorbent injection rate used for activated include units that would be considered nonmanufacturing activities at carbon injection). boilers and process heaters if they did industrial facilities, and other similar * * * * * not combust solid waste. establishments or facilities. Institutional Raw mill means a ball or tube mill, Energy recovery unit designed to burn waste includes materials discarded by vertical roller mill or other size biomass (Biomass) means an energy schools, by hospitals (nonmedical), by reduction equipment, that is not part of recovery unit that burns solid waste, nonmanufacturing activities at prisons an in-line kiln/raw mill, used to grind biomass, and non-coal solid materials and government facilities, and other feed to the appropriate size. Moisture but less than 10 percent coal, on a heat similar establishments or facilities. may be added or removed from the feed input basis on an annual average, either Household, commercial/retail, and during the grinding operation. If the raw alone or in combination with liquid institutional waste does include yard mill is used to remove moisture from waste, liquid fuel or gaseous fuels. waste and refuse-derived fuel. feed materials, it is also, by definition, * * * * * Household, commercial/retail, and a raw material dryer. The raw mill also Foundry sand thermal reclamation institutional waste does not include includes the air separator associated unit means a type of part reclamation used oil; sewage sludge; wood pallets; with the raw mill. unit that removes coatings that are on construction, renovation, and * * * * * foundry sand. A foundry sand thermal demolition wastes (which include Responsible official means one of the reclamation unit is not an incinerator, a railroad ties and telephone poles); clean following: waste-burning kiln, an energy recovery wood; industrial process or (1) For a corporation: A president, unit or a small, remote incinerator manufacturing wastes; medical waste; or secretary, treasurer, or vice-president of under this subpart. motor vehicles (including motor vehicle the corporation in charge of a principal Incinerator means any furnace used in parts or vehicle fluff). business function, or any other person the process of combusting solid waste * * * * * who performs similar policy or (as that term is defined by the Oxygen analyzer system means all decision-making functions for the Administrator in 40 CFR part 241) for equipment required to determine the corporation, or a duly authorized

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representative of such person if the Soil treatment unit means a unit that which are used for industrial, representative is responsible for the thermally treats petroleum– commercial, heating or cooling overall operation of one or more contaminated soils for the sole purpose purposes; or manufacturing, production, or operating of site remediation. A soil treatment (3) Air curtain incinerators provided facilities applying for or subject to a unit may be direct-fired or indirect that such incinerators only burn wood permit and either: fired. A soil treatment unit is not an wastes, yard wastes, and clean lumber (i) The facilities employ more than incinerator, a waste-burning kiln, an and that such air curtain incinerators 250 persons or have gross annual sales energy recovery unit or a small, remote comply with opacity limitations to be or expenditures exceeding $25 million incinerator under this subpart. established by the Administrator by (in second quarter 1980 dollars); or Solid waste means the term solid rule. (ii) The delegation of authority to waste as defined in 40 CFR 241.2. Space heater means a unit that meets such representatives is approved in Solid waste incineration unit means a the requirements of 40 CFR 279.23. A advance by the permitting authority; distinct operating unit of any facility space heater is not an incinerator, a (2) For a partnership or sole which combusts any solid waste (as that waste-burning kiln, an energy recovery proprietorship: A general partner or the term is defined by the Administrator in unit or a small, remote incinerator proprietor, respectively; 40 CFR part 241) material from under this subpart. (3) For a municipality, State, Federal, commercial or industrial establishments or other public agency: Either a or the general public (including single * * * * * principal executive officer or ranking and multiple residences, hotels and Waste-burning kiln means a kiln that elected official. For the purposes of this motels). Such term does not include is heated, in whole or in part, by part, a principal executive officer of a incinerators or other units required to combusting solid waste (as that term is Federal agency includes the chief have a permit under section 3005 of the defined by the Administrator in 40 CFR executive officer having responsibility Solid Waste Disposal Act. The term part 241). Secondary materials used in for the overall operations of a principal ‘‘solid waste incineration unit’’ does not Portland cement kilns shall not be geographic unit of the agency (e.g., a include: deemed to be combusted unless they are Regional Administrator of EPA); or (1) Materials recovery facilities introduced into the flame zone in the (4) For affected facilities: (including primary or secondary hot end of the kiln or mixed with the (i) The designated representative in so smelters) which combust waste for the precalciner fuel. far as actions, standards, requirements, primary purpose of recovering metals; * * * * * or prohibitions under Title IV of the (2) Qualifying small power ■ 21. Table 1 to subpart CCCC of part 60 Clean Air Act or the regulations production facilities, as defined in is amended by: promulgated thereunder are concerned; section 3(17)(C) of the Federal Power ■ a. Revising the table heading. or Act (16 U.S.C. 769(17)(C)), or qualifying ■ (ii) The designated representative for cogeneration facilities, as defined in b. Revising the entry for ‘‘Carbon any other purposes under part 60. section 3(18)(B) of the Federal Power monoxide’’. ■ * * * * * Act (16 U.S.C. 796(18)(B)), which burn c. Revising the entry for ‘‘Dioxin/ Small, remote incinerator means an homogeneous waste (such as units Furan (toxic equivalency basis)’’. incinerator that combusts solid waste which burn tires or used oil, but not ■ d. Revising the entry for ‘‘Hydrogen (as that term is defined by the including refuse-derived fuel) for the Chloride’’. Administrator in 40 CFR part 241) and production of electric energy or in the ■ e. Revising the entry for ‘‘Nitrogen combusts 3 tons per day or less solid case of qualifying cogeneration facilities Oxides’’. waste and is more than 25 miles driving which burn homogeneous waste for the ■ f. Revising the entry for ‘‘Sulfur distance to the nearest municipal solid production of electric energy and steam Dioxide’’. waste landfill. or forms of useful energy (such as heat) The revisions read as follows:

TABLE 1 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR CISWI UNITS FOR WHICH CONSTRUCTION IS COMMENCED AFTER NOVEMBER 30, 1999, BUT NO LATER THAN JUNE 4, 2010, OR FOR WHICH MODIFICATION OR RECONSTRUCTION IS COMMENCED ON OR AFTER JUNE 1, 2001, BUT NO LATER THAN AUGUST 7, 2013

For the air pollutant You must meet this emission Using this averaging time And determining compliance limitation a using this method

******* Carbon monoxide .... 157 parts per million by dry 3-run average (1 hour minimum sample time per run) ...... Performance test (Method 10 volume. at 40 CFR part 60, appen- dix A–4). Dioxin/Furan (toxic 0.41 nanograms per dry 3-run average (collect a minimum volume of 4 dry stand- Performance test (Method 23 equivalency basis). standard cubic meter. ard cubic meters per run). of appendix A–7 of this part). Hydrogen chloride ... 62 parts per million by dry 3-run average (For Method 26, collect a minimum volume Performance test (Method 26 volume. of 120 liters per run. For Method 26A, collect a min- or 26A at 40 CFR part 60, imum volume of 1 dry standard cubic meter per run). appendix A–8).

******* Nitrogen Oxides ...... 388 parts per million by dry 3-run average (for Method 7E, 1 hour minimum sample Performance test (Method 7 volume. time per run). or 7E at 40 CFR part 60, appendix A–4).

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TABLE 1 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR CISWI UNITS FOR WHICH CONSTRUCTION IS COMMENCED AFTER NOVEMBER 30, 1999, BUT NO LATER THAN JUNE 4, 2010, OR FOR WHICH MODIFICATION OR RECONSTRUCTION IS COMMENCED ON OR AFTER JUNE 1, 2001, BUT NO LATER THAN AUGUST 7, 2013—Continued

And determining compliance For the air pollutant You must meet this emission Using this averaging time limitation a using this method

******* Sulfur Dioxide ...... 20 parts per million by dry 3-run average (For Method 6, collect a minimum volume Performance test (Method 6 volume. of 20 liters per run. For Method 6C, collect sample for a or 6C at 40 CFR part 60, minimum duration of 1 hour per run). appendix A–4). a All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. b Incorporated by reference, see § 60.17.

* * * * * ■ 23. Table 5 to subpart CCCC of part 60 ■ e. Revising the entry for ‘‘Lead’’. ■ 22. Table 2 to subpart CCCC of part 60 is amended by: ■ f. Revising the entry for ‘‘Mercury’’. is amended by revising footnote a to ■ a. Revising the table heading. ■ g. Revising the entry for ‘‘Nitrogen read as follows: ■ b. Revising the entry for ‘‘Carbon Oxides’’. Table 2 to Subpart CCCC of Part 60— Monoxide’’. ■ h. Revising the entry for ‘‘Sulfur Operating Limits for Wet Scrubbers ■ c. Revising the entry for ‘‘Dioxin/furan dioxide’’. * * * * * (Total Mass Basis)’’. ■ i. Adding footnote c. a Calculated each hour as the average of the ■ d. Revising the entry for ‘‘Hydrogen The revisions and addition read as previous 3 operating hours. chloride’’. follows:

TABLE 5 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR INCINERATORS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013

For the air You must meet this emission Using this averaging time And determining compliance pollutant limitation a using this method

******* Carbon monoxide .... 17 parts per million by dry 3-run average (1 hour minimum sample time per run) ...... Performance test (Method 10 volume. at 40 CFR part 60, appen- dix A–4). Dioxin/furan (Total 0.58 nanograms per dry 3-run average (collect a minimum volume of 4 dry stand- Performance test (Method 23 Mass Basis). standard cubic meter c. ard cubic meters per run). at 40 CFR part 60, appen- dix A–7).

******* Hydrogen chloride ... 0.091 parts per million by dry 3-run average (For Method 26, collect a minimum volume Performance test (Method 26 volume. of 360 liters per run. For Method 26A, collect a min- or 26A at 40 CFR part 60, imum volume of 3 dry standard cubic meters per run). appendix A–8). Lead ...... 0.015 milligrams per dry 3-run average (collect a minimum volume of 4 dry stand- Performance test (Method 29 standard cubic meter c. ard cubic meters per run). of appendix A–8 at 40 CFR part 60). Use ICPMS for the analytical finish. Mercury ...... 0.00084 milligrams per dry 3-run average (collect enough volume to meet a detection Performance test (Method 29 standard cubic meter c. limit data quality objective of 0.03 ug/dry standard cubic or 30B at 40 CFR part 60, meter). appendix A–8) or ASTM D6784–02 (Reapproved 2008).b Nitrogen Oxides ...... 23 parts per million dry vol- 3-run average (for Method 7E, 1 hour minimum sample Performance test (Method 7 ume. time per run). or 7E at 40 CFR part 60, appendix A–4).

******* Sulfur dioxide ...... 11 parts per million dry vol- 3-run average (1 hour minimum sample time per run) ...... Performance test (Method 6 ume. or 6C at 40 CFR part 60, appendix A–4).

******* a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2155 if all of the other provisions of § 60.2155 are met. For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing.

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■ 24. Table 6 to subpart CCCC of part 60 ■ e. Revising the entry for ‘‘Dioxins/ ■ j. Revising the entry for ‘‘Particulate is amended by: furans (toxic equivalency basis)’’. matter (filterable)’’. ■ a. Revising the table heading. ■ f. Revising the entry for ‘‘Hydrogen ■ k. Revising the entry for ‘‘Sulfur ■ b. Revising the entry for ‘‘Cadmium’’. chloride’’. dioxide’’. ■ c. Revising the entry for ‘‘Carbon ■ g. Revising the entry for ‘‘Lead’’. monoxide’’. ■ h. Revising the entry for ‘‘Mercury’’. ■ l. Adding footnote c. ■ d. Revising the entry for ‘‘Dioxins/ ■ i. Revising the entry for ‘‘Oxides of The revisions and addition read as furans (Total Mass Basis)’’. nitrogen’’. follows:

TABLE 6 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR ENERGY RECOVERY UNITS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013

You must meet this emission limitation a And determining For the air pollutant Using this averaging time compliance using Liquid/Gas Solids this method

Cadmium ...... 0.023 milligrams per Biomass—0.0014 3-run average (collect a minimum vol- Performance test dry standard cubic milligrams per dry ume of 4 dry standard cubic meters (Method 29 at 40 meter. standard cubic per run). CFR part 60, ap- meter. c pendix A–8). Use Coal—0.0095 milli- ICPMS for the an- grams per dry alytical finish. standard cubic meter. Carbon monoxide ...... 35 parts per million Biomass—240 parts 3-run average (1 hour minimum sample Performance test dry volume. per million dry vol- time per run). (Method 10 at 40 ume. CFR part 60, ap- Coal—95 parts per pendix A–4). million dry volume. Dioxin/furans (Total Mass Basis) No Total Mass Biomass—0.52 3-run average (collect a minimum vol- Performance test Basis limit, must nanograms per ume of 4 dry standard cubic meters). (Method 23 at 40 meet the toxic dry standard cubic CFR part 60, ap- equivalency basis meter. c pendix A–7). limit below. Coal—5.1 nanograms per dry standard cubic meter. c Dioxins/furans (toxic equiva- 0.093 nanograms Biomass—0.076 3-run average (collect a minimum vol- Performance test lency basis). per dry standard nanograms per ume of 4 dry standard cubic meters (Method 23 of ap- cubic meter. c dry standard cubic per run). pendix A–7 of this meter. c part). Coal—0.075 nanograms per dry standard cubic meter. c Hydrogen chloride ...... 14 parts per million Biomass—0.20 3-run average (For Method 26, collect a Performance test dry volume. parts per million minimum volume of 360 liters per run. (Method 26 or dry volume. For Method 26A, collect a minimum 26A at 40 CFR Coal—13 parts per volume of 3 dry standard cubic meters part 60, appendix million dry volume. per run). A–8). Lead ...... 0.096 milligrams per Biomass—0.014 mil- 3-run average (collect a minimum vol- Performance test dry standard cubic ligrams per dry ume of 4 dry standard cubic meters (Method 29 at 40 meter. standard cubic per run). CFR part 60, ap- meter. c pendix A–8). Use Coal—0.14 milli- ICPMS for the an- grams per dry alytical finish. standard cubic meter. Mercury ...... 0.00056 milligrams Biomass—0.0022 3-run average (collect enough volume to Performance test per dry standard milligrams per dry meet an in-stack detection limit data (Method 29 or cubic meter. c standard cubic quality objective of 0.03 ug/dscm). 30B at 40 CFR meter. part 60, appendix Coal—0.016 milli- A–8) or ASTM grams per dry D6784–02 (Re- standard cubic approved 2008)b. meter. Oxides of nitrogen ...... 76 parts per million Biomass—290 parts 3-run average (for Method 7E, 1 hour Performance test dry volume. per million dry vol- minimum sample time per run). (Method 7 or 7E ume. at 40 CFR part Coal—340 parts per 60, appendix A– million dry volume. 4).

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TABLE 6 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR ENERGY RECOVERY UNITS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013—Continued

You must meet this emission limitation a And determining For the air pollutant Using this averaging time compliance using Liquid/Gas Solids this method

Particulate matter (filterable) ..... 110 milligrams per Biomass—5.1 milli- 3-run average (collect a minimum vol- Performance test dry standard cubic grams per dry ume of 1 dry standard cubic meter per (Method 5 or 29 meter. standard cubic run). at 40 CFR part meter. 60, appendix A–3 Coal—160 milli- or appendix A–8) grams per dry if the unit has an standard cubic annual average meter. heat input rate less than 250 MMBtu/hr; or PM CPMS (as speci- fied in § 60.2145(x)) if the unit has an annual average heat input rate equal to or great- er than 250 MMBtu/hr. Sulfur dioxide ...... 720 parts per million Biomass—7.3 parts 3-run average (for Method 6, collect a Performance test dry volume. per million dry vol- minimum of 60 liters, for Method 6C,1 (Method 6 or 6C ume. hour minimum sample time per run). at 40 CFR part Coal—650 parts per 60, appendix A– million dry volume. 4). a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2155 if all of the other provisions of § 60.2155 are met. For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing.

■ 25. Table 7 to Subpart CCCC of part 60 is revised to read as follows:

TABLE 7 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR WASTE-BURNING KILNS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013

You must meet this emission And determining For the air pollutant a Using this averaging time compliance using limitation this method

Cadmium ...... 0.0014 milligrams per dry stand- 3-run average (collect a minimum Performance test (Method 29 at ard cubic meter. b volume of 4 dry standard cubic 40 CFR part 60, appendix A–8). meters per run). Use ICPMS for the analytical finish. Carbon monoxide...... 90 (long kilns)/190 (preheater/ 3-run average (1 hour minimum Performance test (Method 10 at precalciner) parts per million sample time per run). 40 CFR part 60, appendix A–4). dry volume. Dioxins/furans (total mass basis) ... 0.51 nanograms per dry standard 3-run average (collect a minimum Performance test (Method 23 at cubic meter. b volume of 4 dry standard cubic 40 CFR part 60, appendix A–7). meters per run). Dioxins/furans (toxic equivalency 0.075 nanograms per dry stand- 3-run average (collect a minimum Performance test (Method 23 at basis). ard cubic meter. b volume of 4 dry standard cubic 40 CFR part 60, appendix A–7). meters). Hydrogen chloride ...... 3.0 parts per million dry volume. b 3-run average (1 hour minimum Performance test (Method 321 at sample time per run) or 30-day 40 CFR part 63, appendix A) or rolling average if HCl CEMS are HCl CEMS if a wet scrubber or used. dry scrubber is not used. Lead ...... 0.014 milligrams per dry standard 3-run average (collect a minimum Performance test (Method 29 at cubic meter. b volume of 4 dry standard cubic 40 CFR part 60, appendix A–8). meters). Use ICPMS for the analytical finish.

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TABLE 7 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR WASTE-BURNING KILNS THAT COMMENCED CONSTRUCTION AFTER JUNE 4, 2010, OR RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013—Continued

You must meet this emission And determining For the air pollutant a Using this averaging time compliance using limitation this method

Mercury ...... 0.0037 milligrams per dry stand- 30-day rolling average...... Mercury CEMS or sorbent trap ard cubic meter. monitoring system (perform- ance specification 12A or 12B, respectively, of appendix B of this part.) Oxides of nitrogen ...... 200 parts per million dry volume .. 30-day rolling average ...... NOx CEMS (performance speci- fication 2 of appendix B and procedure 1 of appendix F of this part). Particulate matter (filterable)...... 2.2 milligrams per dry standard 30-day rolling average...... PM CPMS (as specified in cubic meter. § 60.2145(x)). Sulfur dioxide ...... 28 parts per million dry volume .... 30-day rolling average ...... Sulfur dioxide CEMS (perform- ance specification 2 of appen- dix B and procedure 1 of ap- pendix F of this part). a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit. b If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2155 if all of the other provisions of § 60.2155 are met. For all other pollutants that do not contain a footnote ‘‘b’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing.

■ 26. Table 8 to Subpart CCCC of part 60 is revised to read as follows:

TABLE 8 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR SMALL, REMOTE INCINERATORS THAT COM- MENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013

You must meet this emission And determining For the air pollutant a Using this averaging time compliance using limitation this method

Cadmium ...... 0.67 milligrams per dry standard 3-run average (collect a minimum Performance test (Method 29 at cubic meter. volume of 1 dry standard cubic 40 CFR part 60, appendix A–8). meters per run). Carbon monoxide ...... 13 parts per million dry volume .... 3-run average (1 hour minimum Performance test (Method 10 at sample time per run). 40 CFR part 60, appendix A–4). Dioxins/furans (total mass basis) .. 1,800 nanograms per dry stand- 3-run average (collect a minimum Performance test (Method 23 at ard cubic meter. b volume of 1 dry standard cubic 40 CFR part 60, appendix A–7). meters per run). Dioxins/furans (toxic equivalency 31 nanograms per dry standard 3-run average (collect a minimum Performance test (Method 23 at basis). cubic meter. b volume of 1 dry standard cubic 40 CFR part 60, appendix A–7). meters). Fugitive ash...... Visible emissions for no more Three 1-hour observation periods Visible emissions test (Method 22 than 5 percent of the hourly ob- at 40 CFR part 60, appendix A– servation period. 7). Hydrogen chloride ...... 200 parts per million by dry vol- 3-run average (For Method 26, Performance test (Method 26 or ume. collect a minimum volume of 60 26A at 40 CFR part 60, appen- liters per run. For Method 26A, dix A–8). collect a minimum volume of 1 dry standard cubic meter per run). Lead ...... 2.0 milligrams per dry standard 3-run average (collect a minimum Performance test (Method 29 at cubic meter. volume of 1 dry standard cubic 40 CFR part 60, appendix A–8). meters). Use ICPMS for the analytical finish. Mercury ...... 0.0035 milligrams per dry stand- 3-run average (For Method 29 Performance test (Method 29 or ard cubic meter. and ASTM D6784–02 (Re- 30B at 40 CFR part 60, appen- approved 2008) b, collect a min- dix A–8) or ASTM D6784–02 imum volume of 2 dry standard (Reapproved 2008). b cubic meters per run. For Meth- od 30B, collect a minimum vol- ume as specified in Method 30B at 40 CFR part 60, appendix A).

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TABLE 8 TO SUBPART CCCC OF PART 60—EMISSION LIMITATIONS FOR SMALL, REMOTE INCINERATORS THAT COM- MENCED CONSTRUCTION AFTER JUNE 4, 2010, OR THAT COMMENCED RECONSTRUCTION OR MODIFICATION AFTER AUGUST 7, 2013—Continued

You must meet this emission limi- And determining For the air pollutant a Using this averaging time compliance using tation this method

Oxides of nitrogen ...... 170 parts per million dry volume .. 3-run average (for Method 7E, 1 Performance test (Method 7 or 7E hour minimum sample time per at 40 CFR part 60, appendix A– run). 4). Particulate matter (filterable)...... 270 milligrams per dry standard 3-run average (collect a minimum Performance test (Method 5 or 29 cubic meter. volume of 1 dry standard cubic at 40 CFR part 60, appendix A– meters). 3 or appendix A–8). Sulfur dioxide ...... 1.2 parts per million dry volume ... 3-run average (1 hour minimum Performance test (Method 6 or 6c sample time per run). at 40 CFR part 60, appendix A– 4).

******* a All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the Total Mass Basis limit or the toxic equivalency basis limit. b Incorporated by reference, see § 60.17.

Subpart DDDD—[Amended] § 60.2525 What if my state plan is not but on or before June 4, 2010, and for approvable? CISWI units in the small remote ■ 27. Section 60.2505 is amended by: * * * * * incinerator, energy recovery unit, and ■ a. Revising paragraph (a). (b) If you do not submit an approvable waste-burning kiln subcategories that ■ b. Revising paragraph (c). state plan (or a negative declaration commenced construction before June 4, ■ c. Revising paragraph (d). letter) to EPA that meets the 2010, your state plan must include The revisions read as follows: requirements of this subpart and compliance schedules that require contains the emission limits in tables 6 CISWI units to achieve final compliance § 60.2505 Am I affected by this subpart? through 9 of this subpart for CISWI as expeditiously as practicable after (a) If you are the Administrator of an units that commenced construction on approval of the state plan but not later air quality program in a state or United or before June 4, 2010, then EPA will than the earlier of the two dates States protectorate with one or more develop a federal plan according to specified in paragraphs (b)(1) and (2) of existing CISWI units that meet the § 60.27 to implement the emission this section. criteria in paragraphs (b) through (d) of guidelines contained in this subpart. (1) February 7, 2018. this section, you must submit a state Owners and operators of CISWI units * * * * * plan to U.S. Environmental Protection not covered by an approved state plan ■ 30. Section 60.2545 is amended by Agency (EPA) that implements the must comply with the federal plan. The revising paragraph (c) to read as follows: emission guidelines contained in this federal plan is an interim action and subpart. will be automatically withdrawn when § 60.2545 Does this subpart directly affect your state plan is approved. CISWI unit owners and operators in my * * * * * state? (c) You must submit a state plan that * * * * * * * * * * meets the requirements of this subpart ■ 29. Section 60.2535 is amended by: (c) If you do not submit an approvable and contains the more stringent ■ a. Revising paragraph (a) introductory plan to implement and enforce the emission limit for the respective text. ■ guidelines contained in this subpart by pollutant in table 6 of this subpart or b. Revising paragraph (b) introductory February 7, 2014, for CISWI units that table 1 of subpart CCCC of this part to text. ■ commenced construction on or before EPA by February 7, 2014 for c. Revising paragraph (b)(1). June 4, 2010, EPA will implement and incinerators that commenced The revisions read as follows: enforce a federal plan, as provided in construction after November 30, 1999, § 60.2535 What compliance schedule must § 60.2525, to ensure that each unit but no later than June 4, 2010, or I include in my state plan? within your state that commenced commenced modification or (a) For CISWI units in the incinerator construction on or before June 4, 2010, reconstruction after June 1, 2001 but no subcategory that commenced reaches compliance with all the later than August 7, 2013. construction on or before November 30, provisions of this subpart by February 7, (d) You must submit a state plan to 1999, your state plan must include 2018. EPA that meets the requirements of this compliance schedules that require ■ 31. Section 60.2550 is amended by subpart and contains the emission limits CISWI units to achieve final compliance revising paragraph (a)(1) to read as in tables 7 through 9 of this subpart by as expeditiously as practicable after follows: February 7, 2014, for CISWI units other approval of the state plan but not later than incinerator units that commenced than the earlier of the two dates § 60.2550 What CISWI units must I address construction on or before June 4, 2010, specified in paragraphs (a)(1) and (2) of in my state plan? or commenced modification or this section. (a) * * * reconstruction after June 4, 2010 but no * * * * * (1) CISWI units in your state that later than August 7, 2013. (b) For CISWI units in the incinerator commenced construction on or before ■ 28. Section 60.2525 is amended by subcategory that commenced June 4, 2010, or commenced revising paragraph (b) to read as follows: construction after November 30, 1999, modification or reconstruction after

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June 4, 2010 but no later than August 7, ■ 33. Section 60.2675 is amended by: each sorbent measured during the most 2013. ■ a. Revising paragraph (a)(2). recent performance test demonstrating * * * * * ■ b. Revising paragraph (e). compliance with the hydrogen chloride ■ ■ c. Revising paragraph (f). emission limitations. For energy 32. Section 60.2555 is amended by: ■ d. Redesignating paragraph (g) as ■ recovery units, when your unit operates a. Revising paragraph (c). paragraph (h). ■ b. Revising paragraph (e)(3). at lower loads, multiply your sorbent ■ e. Adding new paragraph (g). injection rate by the load fraction, as ■ c. Adding paragraph (e)(4). ■ f. Adding paragraph (i). ■ d. Revising paragraph (f)(3). defined in this subpart, to determine the The revisions and addition read as required injection rate (e.g., for 50 ■ e. Adding paragraph (f)(4). follows: ■ f. Revising paragraph (n). percent load, multiply the injection rate ■ g. Adding paragraph (o). § 60.2675 What operating limits must I operating limit by 0.5). The revisions and additions read as meet and by when? (h) If you do not use a wet scrubber, follows: (a) * * * electrostatic precipitator, or fabric filter (2) Minimum pressure drop across the to comply with the emission limitations, § 60.2555 What combustion units are wet particulate matter scrubber, which and if you do not determine compliance exempt from my state plan? is calculated as the lowest 1-hour with your particulate matter emission * * * * * average pressure drop across the wet limitation with a particulate matter (c) Municipal waste combustion units. scrubber measured during the most CEMS, you must maintain opacity to Incineration units that are subject to recent performance test demonstrating less than or equal to ten percent opacity subpart Ea of this part (Standards of compliance with the particulate matter (1-hour block average). (i) If you use a PM CPMS to Performance for Municipal Waste emission limitations; or minimum demonstrate compliance, you must Combustors); subpart Eb of this part amperage to the wet scrubber, which is establish your PM CPMS operating limit (Standards of Performance for Large calculated as the lowest 1-hour average and determine compliance with it Municipal Waste Combustors); subpart amperage to the wet scrubber measured according to paragraphs (i)(1) through Cb of this part (Emission Guidelines and during the most recent performance test Compliance Time for Large Municipal (5) of this section. demonstrating compliance with the (1) During the initial performance test Combustors); AAAA of this part particulate matter emission limitations. (Standards of Performance for Small or any such subsequent performance * * * * * test that demonstrates compliance with Municipal Waste Combustion Units); or (e) If you use activated carbon sorbent subpart BBBB of this part (Emission the PM limit, record all hourly average injection to comply with the emission output values (milliamps) from the PM Guidelines for Small Municipal Waste limitations, you must measure the Combustion Units). CPMS for the periods corresponding to sorbent flow rate during the the test runs (e.g., three 1-hour average * * * * * performance testing. The operating limit PM CPMS output values for three 1- (e) * * * for the carbon sorbent injection is hour test runs). (3) You submit documentation to the calculated as the lowest 1-hour average (i) Your PM CPMS must provide a 4– Administrator notifying the Agency that sorbent flow rate measured during the 20 milliamp output and the the qualifying small power production most recent performance test establishment of its relationship to facility is combusting homogenous demonstrating compliance with the manual reference method measurements waste. mercury emission limitations. For must be determined in units of (4) You maintain the records specified energy recovery units, when your unit milliamps. in § 60.2740(v). operates at lower loads, multiply your (ii) Your PM CPMS operating range (f) * * * sorbent injection rate by the load must be capable of reading PM (3) You submit documentation to the fraction, as defined in this subpart, to concentrations from zero to a level Administrator notifying the Agency that determine the required injection rate equivalent to at least two times your the qualifying cogeneration facility is (e.g., for 50 percent load, multiply the allowable emission limit. If your PM combusting homogenous waste. injection rate operating limit by 0.5). CPMS is an auto-ranging instrument (4) You maintain the records specified (f) If you use selective noncatalytic capable of multiple scales, the primary in § 60.2740(w). reduction to comply with the emission range of the instrument must be capable * * * * * limitations, you must measure the of reading PM concentration from zero (n) Sewage sludge incineration units. charge rate, the secondary chamber to a level equivalent to two times your Incineration units combusting sewage temperature (if applicable to your CISWI allowable emission limit. sludge for the purpose of reducing the unit), and the reagent flow rate during (iii) During the initial performance volume of the sewage sludge by the nitrogen oxides performance testing. test or any such subsequent removing combustible matter that are The operating limits for the selective performance test that demonstrates subject to subpart LLLL of this part noncatalytic reduction are calculated as compliance with the PM limit, record (Standards of Performance for Sewage the highest 1-hour average charge rate, and average all milliamp output values Sludge Incineration Units) or subpart lowest secondary chamber temperature, from the PM CPMS for the periods MMMM of this part (Emission and lowest reagent flow rate measured corresponding to the compliance test Guidelines for Sewage Sludge during the most recent performance test runs (e.g., average all your PM CPMS Incineration Units). demonstrating compliance with the output values for three corresponding 2- (o) Other solid waste incineration nitrogen oxides emission limitations. hour Method 5I test runs). units. Incineration units that are subject (g) If you use a dry scrubber to comply (2) If the average of your three PM to subpart EEEE of this part (Standards with the emission limitations, you must performance test runs are below 75% of of Performance for Other Solid Waste measure the injection rate of each your PM emission limit, you must Incineration Units) or subpart FFFF of sorbent during the performance testing. calculate an operating limit by this part (Emission Guidelines and The operating limit for the injection rate establishing a relationship of PM CPMS Compliance Times for Other Solid of each sorbent is calculated as the signal to PM concentration using the PM Waste Incineration Units). lowest 1-hour average injection rate of CPMS instrument zero, the average PM

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CPMS values corresponding to the three (B) Zero point data for extractive only natural gas) and plotting these with compliance test runs, and the average instruments should be obtained by the compliance data to find the zero PM concentration from the Method 5 or removing the extractive probe from the intercept. performance test with the procedures in stack and drawing in clean ambient air. (D) If none of the steps in paragraphs (i)(1)through (5) of this section. (i)(2)(i) through (iv) of this section are (i) Determine your instrument zero (C) The zero point can also can be possible, you must use a zero output output with one of the following established obtained by performing value provided by the manufacturer. procedures: manual reference method measurements (A) Zero point data for in-situ when the flue gas is free of PM (ii) Determine your PM CPMS instruments should be obtained by emissions or contains very low PM instrument average in milliamps, and removing the instrument from the stack concentrations (e.g., when your process the average of your corresponding three and monitoring ambient air on a test is not operating, but the fans are PM compliance test runs, using bench. operating or your source is combusting equation 5.

Where: R = the relative mg/dscm per milliamp for milliamp value equivalent to the X1 = the PM CPMS data points for the three your PM CPMS, from Equation 3. instrument zero output, technique by runs constituting the performance test, (3) If the average of your three PM which this zero value was determined, Y1 = the PM concentration value for the compliance test runs is at or above 75% and the average milliamp signals three runs constituting the performance of your PM emission limit you must corresponding to each PM compliance test, and test run. n = the number of data points. determine your operating limit by averaging the PM CPMS milliamp ■ 34. Section 60.2680 is amended by (iii) With your instrument zero output corresponding to your three PM revising the section heading and expressed in milliamps, your three run performance test runs that demonstrate paragraph (a) introductory text to read average PM CPMS milliamp value, and compliance with the emission limit as follows: using equation 8 and you must submit your three run average PM § 60.2680 What if I do not use a wet concentration from your three all compliance test and PM CPMS data scrubber, fabric filter, activated carbon compliance tests, determine a according to the reporting requirements injection, selective noncatalytic reduction, relationship of lb/Mmbtu per milliamp in paragraph (i)(5) of this section. an electrostatic precipitator, or a dry with equation 6. scrubber to comply with the emission limitations? (a) If you use an air pollution control device other than a wet scrubber, Where: activated carbon injection, selective Where: X1 = the PM CPMS data points for all runs noncatalytic reduction, fabric filter, an R = the relative mg/dscm per milliamp for i, electrostatic precipitator, or a dry your PM CPMS, n = the number of data points, and scrubber or limit emissions in some Oh = your site specific operating limit, in Y1 = the three run average mg/dscm PM other manner, including mass balances, concentration, milliamps. to comply with the emission limitations X1 = the three run average milliamp output (4) To determine continuous under § 60.2670, you must petition the from you PM CPMS, and compliance, you must record the PM EPA Administrator for specific z = the milliamp equivalent of your CPMS output data for all periods when operating limits to be established during instrument zero determined from (2)(i). the process is operating and the PM the initial performance test and (iv) Determine your source specific CPMS is not out-of-control. You must continuously monitored thereafter. You 30-day rolling average operating limit demonstrate continuous compliance by must submit the petition at least sixty using the mg/dscm per milliamp value using all quality-assured hourly average days before the performance test is from Equation 6 in equation 7, below. data collected by the PM CPMS for all scheduled to begin. Your petition must This sets your operating limit at the PM operating hours to calculate the include the five items listed in CPMS output value corresponding to arithmetic average operating parameter paragraphs (a)(1) through (5) of this 75% of your emission limit. in units of the operating limit (e.g., section. milliamps, PM concentration, raw data * * * * * signal) on a 30-day rolling average basis. ■ 35. Section 60.2685 is revised to read (5) For PM performance test reports as follows: used to set a PM CPMS operating limit, Where: the electronic submission of the test § 60.2685 Affirmative Defense for Violation Ol = the operating limit for your PM CPMS report must also include the make and of Emission Standards During Malfunction. on a 30-day rolling average, in milliamps. model of the PM CPMS instrument, In response to an action to enforce the L = your source emission limit expressed serial number of the instrument, standards set forth in paragraph in lb/Mmbtu, analytical principle of the instrument § 60.2670 you may assert an affirmative z = your instrument zero in milliamps, (e.g., beta attenuation), span of the defense to a claim for civil penalties for determined from (2)(a), and instruments primary analytical range, violations of such standards that are

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caused by malfunction, as defined at 40 methods and engineering judgment, the of dioxins/furans emitted in terms of CFR 60.2. Appropriate penalties may be amount of any emissions that were the toxic equivalency. assessed if you fail to meet your burden result of the malfunction. * * * * * of proving all of the requirements in the (b) Report. The owner or operator (j) You must determine dioxins/furans affirmative defense. The affirmative seeking to assert an affirmative defense total mass basis by following the defense shall not be available for claims shall submit a written report to the procedures in paragraphs (j)(1) through for injunctive relief. Administrator with all necessary (3) of this section. (a) Assertion of affirmative defense. supporting documentation, that it has (1) Measure the concentration of each To establish the affirmative defense in met the requirements set forth in dioxin/furan tetra- through octa- any action to enforce such a standard, paragraph (a) of this section. This chlorinated isomer emitted using EPA you must timely meet the reporting affirmative defense report shall be Method 23 at 40 CFR part 60, appendix requirements in paragraph (b) of this included in the first periodic A–7. section, and must prove by a compliance, deviation report or excess (2) Quantify isomers meeting preponderance of evidence that: emission report otherwise required after identification criteria 2, 3, 4, and 5 in (1) The violation: the initial occurrence of the violation of Section 5.3.2.5 of Method 23, regardless (i) Was caused by a sudden, the relevant standard (which may be the of whether the isomers meet infrequent, and unavoidable failure of end of any applicable averaging period). identification criteria 1 and 7. You must air pollution control equipment, process If such compliance, deviation report or quantify the isomers per Section 9.0 of equipment, or a process to operate in a excess emission report is due less than Method 23. (Note: You may reanalyze normal or usual manner; and 45 days after the initial occurrence of the sample aliquot or split to reduce the (ii) Could not have been prevented the violation, the affirmative defense number of isomers not meeting through careful planning, proper design report may be included in the second identification criteria 1 or 7 of Section or better operation and maintenance compliance, deviation report or excess 5.3.2.5.) practices; and emission report due after the initial (3) Sum the quantities measured in (iii) Did not stem from any activity or occurrence of the violation of the accordance with paragraphs (j)(1) and event that could have been foreseen and relevant standard. (2) of this section to obtain the total avoided, or planned for; and ■ concentration of dioxins/furans emitted (iv) Was not part of a recurring pattern 36. Section 60.2690 is amended by: ■ a. Revising paragraph (g) introductory in terms of total mass basis. indicative of inadequate design, ■ 37.Section 60.2710 is revised to read operation, or maintenance; and text. ■ as follows: (2) Repairs were made as b. Redesignating paragraphs (g)(2) and (3) as paragraphs (g)(3) and (4), ■ a. Revising paragraph (a)(6). expeditiously as possible when a ■ b. Revising paragraphs (b) through (d). violation occurred. Off-shift and respectively. ■ c. Revising newly designated ■ c. Revising paragraph (f). overtime labor were used, to the extent ■ d. Revising paragraphs (g) practicable to make these repairs; and paragraphs (g)(3) and (4). ■ d. Adding new paragraph (g)(2). introductory text and (g)(1). (3) The frequency, amount and ■ ■ e. Adding paragraph (j). e. Revising paragraphs (h) and (i). duration of the violation (including any ■ f. Revising paragraphs (j) introductory bypass) were minimized to the The revisions and additions read as follows: text, (j)(1), and (j)(3). maximum extent practicable; and ■ j. Revising paragraph (l) introductory (4) If the violation resulted from a § 60.2690 How do I conduct the initial and text. bypass of control equipment or a annual performance test? ■ k. Revising paragraph (m)(2). process, then the bypass was * * * * * ■ l. Revising paragraph (n)(4). unavoidable to prevent loss of life, (g) You must determine dioxins/ ■ m. Revising paragraph (o). personal injury, or severe property furans toxic equivalency by following ■ n. Revising paragraph (r)(1). damage; and the procedures in paragraphs (g)(1) ■ o. Revising paragraphs (s) (5) All possible steps were taken to introductory text, (s)(1) introductory minimize the impact of the violation on through (4) of this section. * * * * * text, and (s)(2). ambient air quality, the environment, ■ p. Revising paragraph (t) introductory (2) Quantify isomers meeting and human health; and text, (t)(1) introductory text, and (t)(2). identification criteria 2, 3, 4, and 5 in (6) All emissions monitoring and ■ q. Revising paragraphs (u)(1) and Section 5.3.2.5 of Method 23, regardless control systems were kept in operation (u)(2). of whether the isomers meet if at all possible, consistent with safety ■ r. Revising paragraphs (w) identification criteria 1 and 7. You must and good air pollution control practices; introductory paragraph, (w)(1), (w)(2), quantify the isomers per Section 9.0 of and and (w)(3). Method 23. (Note: You may reanalyze (7) All of the actions in response to ■ s. Adding paragraph (x). the violation were documented by the sample aliquot or split to reduce the The revisions and addition read as properly signed, contemporaneous number of isomers not meeting follows: operating logs; and identification criteria 1 or 7 of Section (8) At all times, the affected CISWI 5.3.2.5.) § 60.2710 How do I demonstrate unit was operated in a manner (3) For each dioxin/furan (tetra- continuous compliance with the emission consistent with good practices for through octa-chlorinated) isomer limitations and the operating limits? minimizing emissions; and measured in accordance with paragraph (a) * * * (9) A written root cause analysis has (g)(1) and (2) of this section, multiply (6) All monitoring systems necessary been prepared, the purpose of which is the isomer concentration by its for compliance with any newly to determine, correct, and eliminate the corresponding toxic equivalency factor applicable monitoring requirements primary causes of the malfunction and specified in table 4 of this subpart. which apply as a result of the cessation the violation resulting from the (4) Sum the products calculated in or commencement or recommencement malfunction event at issue. The analysis accordance with paragraph (g)(3) of this of combusting solid waste must be shall also specify, using best monitoring section to obtain the total concentration installed and operational as of the

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effective date of the waste-to-fuel, or ERUs) and operating limits during the (j) For waste-burning kilns, you must fuel-to-waste switch. All calibration and performance test. conduct an annual performance test for drift checks must be performed as of the * * * * * the pollutants (except mercury and effective date of the waste-to-fuel, or (f) For energy recovery units, you particulate matter, and hydrogen fuel-to-waste switch. Relative accuracy must conduct an annual performance chloride if no acid gas wet scrubber is tests must be performed as of the test for opacity using EPA Reference used) listed in table 8 of this subpart. If performance test deadline for PM CEMS Method 9 at 40 CFR part 60 (except your waste-burning kiln is not equipped (if PM CEMS are elected to demonstrate where particulate matter continuous with a wet scrubber or dry scrubber, you continuous compliance with the monitoring system or continuous must determine compliance with the particulate matter emission limits). parameter monitoring systems are used) hydrogen chloride emission limit using Relative accuracy testing for other and the pollutants listed in table 7 of a CEMS as specified in § 60.2730. You CEMS need not be repeated if that this subpart. must determine compliance with testing was previously performed (g) For facilities using a CEMS to particulate matter using CPMS. You consistent with section 112 monitoring demonstrate compliance with the must determine compliance with the requirements or monitoring carbon monoxide emission limit, mercury emissions limit using a requirements under this subpart. compliance with the carbon monoxide mercury CEMS according to the emission limit may be demonstrated by following requirements: (b) You must conduct an annual using the CEMS according to the (1) Operate a CEMS in accordance performance test for the pollutants following requirements: with performance specification 12A at listed in table 2 of this subpart or tables (1) You must measure emissions 40 CFR part 60, appendix B or a sorbent 6 through 9 of this subpart and opacity according to § 60.13 to calculate 1-hour trap based integrated monitor in for each CISWI unit as required under arithmetic averages, corrected to 7 accordance with performance § 60.2690. The annual performance test percent oxygen. CEMS data during specification 12B at 40 CFR part 60, must be conducted using the test startup and shutdown, as defined in this appendix B. The duration of the methods listed in table 2 of this subpart subpart, are not corrected to 7 percent performance test must be a calendar or tables 6 through 9 of this subpart and oxygen, and are measured at stack month. For each calendar month in the procedures in § 60.2690. Opacity oxygen content. You must demonstrate which the waste-burning kiln operates, must be measured using EPA Reference initial compliance with the carbon hourly mercury concentration data and Method 9 at 40 CFR part 60. Annual monoxide emissions limit using a 30- stack gas volumetric flow rate data must performance tests are not required if you day rolling average of the 1-hour be obtained. You must demonstrate use CEMS or continuous opacity arithmetic average emission compliance with the mercury emissions monitoring systems to determine concentrations, including CEMS data limit using a 30-day rolling average of compliance. during startup and shutdown as defined these 1-hour mercury concentrations, (c) You must continuously monitor in this subpart, calculated using including CEMS data during startup and the operating parameters specified in Equation 19–19 in section 12.4.1 of EPA shutdown as defined in this subpart, § 60.2675 or established under § 60.2680 Reference Method 19 at 40 CFR part 60, calculated using Equation 19–19 in and as specified in § 60.2735. Operation appendix A–7. section 12.4.1 of EPA Reference Method above the established maximum or * * * * * 19 at 40 CFR part 60, appendix A–7 of below the established minimum (h) Coal and liquid/gas energy this part. CEMS data during startup and shutdown, as defined in this subpart, operating limits constitutes a deviation recovery units with annual average heat are not corrected to 7 percent oxygen, from the established operating limits. input rates greater than 250 MMBtu/hr and are measured at stack oxygen Three-hour block average values are may elect to demonstrate continuous content. used to determine compliance (except compliance with the particulate matter for baghouse leak detection system emissions limit using a particulate * * * * * alarms) unless a different averaging matter CEMS according to the (3) The owner or operator of a waste- burning kiln must demonstrate initial period is established under § 60.2680 or, procedures in § 60.2730(n) instead of compliance by operating a mercury for energy recovery units, where the the continuous parameter monitoring CEMS while the raw mill of the in-line averaging time for each operating system specified in § 60.2710(i). Coal kiln/raw mill is operating under normal parameter is a 30-day rolling, calculated and liquid/gas energy recovery units conditions and including at least one each hour as the average of the previous with annual average heat input rates period when the raw mill is off. 720 operating hours. Operation above less than 250 MMBtu/hr, incinerators, the established maximum, below the and small remote incinerators may also * * * * * (l) For each CMS required in this established minimum, or outside the elect to demonstrate compliance using a section, you must develop and submit to allowable range of the operating limits particulate matter CEMS according to the EPA Administrator for approval a specified in paragraph (a) of this section the procedures in § 60.2730(n) instead site-specific monitoring plan according constitutes a deviation from your of particulate matter testing with EPA Method 5 at 40 CFR part 60, appendix to the requirements of this paragraph (l) operating limits established under this A–3 and, if applicable, the continuous that addresses paragraphs (l)(1)(i) subpart, except during performance opacity monitoring requirements in through (vi) of this section. tests conducted to determine paragraph (i) of this section. compliance with the emission and * * * * * (i) For energy recovery units with (m) * * * operating limits or to establish new annual average heat input rates greater (2) Use a flow sensor with a operating limits. Operating limits are than or equal to 10 MMBTU/hour but measurement sensitivity at full scale of confirmed or reestablished during less than 250 MMBtu/hr you must no greater than 2 percent. performance tests. install, operate, certify and maintain a * * * * * (d) You must burn only the same continuous opacity monitoring system (n) * * * types of waste and fuels used to (COMS) according to the procedures in (4) Perform checks at the frequency establish subcategory applicability (for § 60.2730. outlined in your site-specific monitoring

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plan to ensure pressure measurements volume absolute value of the mean estimated hourly potential nitrogen are not obstructed (e.g., check for difference between the reference oxide emissions of unit. pressure tap pluggage daily). method and the CEMS, whichever is * * * * * * * * * * greater. (u) * * * (o) If you have an operating limit that (1) During each relative accuracy test (1) Demonstrate compliance with the requires a pH monitoring system, you run of the CEMS required by appropriate emission limit(s) using a 30- must meet the requirements in performance specification 2 in appendix day rolling average of 1-hour arithmetic paragraphs (l) and (o)(1) through (4) of B of this part, collect sulfur dioxide and average emission concentrations, this section. oxygen (or carbon dioxide) data including CEMS data during startup and (1) Install the pH sensor in a position concurrently (or within a 30- to 60- shutdown, as defined in this subpart, that provides a representative minute period) with both the CEMS and calculated using Equation 19–19 in measurement of scrubber effluent pH. the test methods specified in paragraphs section 12.4.1 of EPA Reference Method (2) Ensure the sample is properly (s)(1)(i) and (ii) of this section. 19 at 40 CFR part 60, appendix A–7. mixed and representative of the fluid to * * * * * CEMS data during startup and be measured. (2) The span value of the CEMS at the shutdown, as defined in this subpart, (3) Conduct a performance evaluation inlet to the sulfur dioxide control device are not corrected to 7 percent oxygen, of the pH monitoring system in must be 125 percent of the maximum and are measured at stack oxygen accordance with your monitoring plan estimated hourly potential sulfur content. at least once each process operating day. dioxide emissions of the unit subject to (2) Operate all CEMS in accordance (4) Conduct a performance evaluation this rule. The span value of the CEMS with the applicable procedures under (including a two-point calibration with at the outlet of the sulfur dioxide appendices B and F of this part. one of the two buffer solutions having control device must be 50 percent of the * * * * * a pH within 1 of the pH of the operating maximum estimated hourly potential (w) For energy recovery units with a limit) of the pH monitoring system in sulfur dioxide emissions of the unit design heat input capacity of 100 accordance with your monitoring plan subject to this rule. MMBtu per hour or greater that do not use a carbon monoxide CEMS, you must at the time of each performance test but * * * * * install, operate, and maintain an oxygen no less frequently than quarterly. (t) For facilities using a CEMS to analyzer system as defined in § 60.2875 * * * * * demonstrate continuous compliance according to the procedures in (r) * * * with the nitrogen oxides emission limit, paragraphs (w)(1) through (4) of this (1) Install a bag leak detection compliance with the nitrogen oxides sensor(s) in a position(s) that will be section. emission limit may be demonstrated by (1) The oxygen analyzer system must representative of the relative or absolute using the CEMS specified in § 60.2730 particulate matter loadings for each be installed by the initial performance to measure nitrogen oxides. CEMS data test date specified in § 60.2675. exhaust stack, roof vent, or during startup and shutdown, as compartment (e.g., for a positive (2) You must operate the oxygen trim defined in this subpart, are not system within compliance with pressure fabric filter) of the fabric filter. corrected to 7 percent oxygen, and are paragraph (w)(3) of this section at all * * * * * measured at stack oxygen content. You times. (s) For facilities using a CEMS to must calculate a 30-day rolling average (3) You must maintain the oxygen demonstrate compliance with the sulfur of the 1-hour arithmetic average level such that the 30-day rolling dioxide emission limit, compliance with emission concentration using Equation average that is established as the the sulfur dioxide emission limit may be 19–19 in section 12.4.1 of EPA operating limit for oxygen is not below demonstrated by using the CEMS Reference Method 19 at 40 CFR part 60, the lowest hourly average oxygen specified in § 60.2730 to measure sulfur appendix A–7. The nitrogen oxides concentration measured during the most dioxide. CEMS data during startup and CEMS must be operated according to recent CO performance test. shutdown, as defined in this subpart, performance specification 2 in appendix * * * * * are not corrected to 7 percent oxygen, B of this part and must follow the (x) For energy recovery units with and are measured at stack oxygen procedures and methods specified in annual average heat input rates greater content. You must calculate a 30-day paragraphs (t)(1) through (t)(5) of this than or equal to 250 MMBtu/hour and rolling average of the 1-hour arithmetic section. waste-burning kilns, you must install, average emission concentrations, (1) During each relative accuracy test calibrate, maintain, and operate a PM including CEMS data during startup and run of the CEMS required by CPMS and record the output of the shutdown as defined in this subpart, performance specification 2 of appendix system as specified in paragraphs (x)(1) using Equation 19–19 in section 12.4.1 B of this part, collect nitrogen oxides through (8) of this section. For other of EPA Reference Method 19 at 40 CFR and oxygen (or carbon dioxide) data energy recovery units, you may elect to part 60, appendix A–7. The sulfur concurrently (or within a 30- to 60- use PM CPMS operated in accordance dioxide CEMS must be operated minute period) with both the CEMS and with this section. PM CPMS are suitable according to performance specification the test methods specified in paragraphs in lieu of using other CMS for 2 in appendix B of this part and must (t)(1)(i) and (ii) of this section. monitoring PM compliance (e.g., bag follow the procedures and methods (i) For nitrogen oxides, EPA Reference leak detectors, ESP secondary power, specified in this paragraph(s). For Method 7 or 7E at 40 CFR part 60, PM scrubber pressure). sources that have actual inlet emissions appendix A–4 must be used. (1) Install, calibrate, operate, and less than 100 parts per million dry (ii) For oxygen (or carbon dioxide), maintain your PM CPMS according to volume, the relative accuracy criterion EPA Reference Method 3A or 3B, or as the procedures in your approved site- for inlet sulfur dioxide CEMS should be an alternative ANSI/ASME PTC 19.10– specific monitoring plan developed in no greater than 20 percent of the mean 1981 (incorporated by reference, see accordance with § 60.2710(l) and value of the reference method test data § 60.17), as applicable, must be used. (x)(1)(i) through (iii) of this section. in terms of the units of the emission (2) The span value of the CEMS must (i) The operating principle of the PM standard, or 5 parts per million dry be 125 percent of the maximum CPMS must be based on in-stack or

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extractive light scatter, light out of control, or required monitoring ■ b. Revising paragraph (e) introductory scintillation, beta attenuation, or mass system quality assurance or quality text. accumulation of the exhaust gas or control activities conducted during out- ■ c. Revising paragraphs (f) through (j). representative sample. The reportable of-control periods are not used in ■ d. Revising paragraph (l)(1) and (2). measurement output from the PM CPMS calculations (report emissions or ■ e. Revising paragraph (m) must be expressed as milliamps. operating levels and report any such introductory text. (ii) The PM CPMS must have a cycle periods in your annual deviation ■ f. Revising paragraphs (n) time (i.e., period required to complete report); introductory text, (n)(6), (n)(7), (n)(9), sampling, measurement, and reporting (iii) Any PM CPMS data recorded (n)(10), (n)(11), and paragraph (n)(12) for each measurement) no longer than during periods of CEMS data during introductory text. 60 minutes. startup and shutdown, as defined in this ■ g. Removing paragraph (n)(14). ■ (iii) The PM CPMS must be capable of subpart. h. Revising paragraphs (o)(1), (o)(2), detecting and responding to particulate (7) You must record and make and (o)(9). ■ matter concentrations of no greater than available upon request results of PM i. Adding paragraphs (r) and (s). 0.5 mg/actual cubic meter. CPMS system performance audits, as The revisions and additions read as (2) During the initial performance test well as the dates and duration of follows: or any such subsequent performance periods from when the PM CPMS is out § 60.2730 What monitoring equipment test that demonstrates compliance with of control until completion of the must I install and what parameters must I the PM limit, you must adjust the site- corrective actions necessary to return monitor? specific operating limit in accordance the PM CPMS to operation consistent * * * * * with the results of the performance test with your site-specific monitoring plan. (c) If you are using something other according to the procedures specified in (8) For any deviation of the 30-day than a wet scrubber, activated carbon, § 60.2675. rolling average PM CPMS average value selective non-catalytic reduction, an (3) Collect PM CPMS hourly average from the established operating electrostatic precipitator, or a dry output data for all energy recovery unit parameter limit, you must: scrubber to comply with the emission or waste-burning kiln operating hours. (i) Within 48 hours of the deviation, limitations under § 60.2670, you must Express the PM CPMS output as visually inspect the air pollution control install, calibrate (to the manufacturers’ milliamps. device; specifications), maintain, and operate (4) Calculate the arithmetic 30-day (ii) If inspection of the air pollution the equipment necessary to monitor rolling average of all of the hourly control device identifies the cause of the compliance with the site-specific average PM CPMS output collected deviation, take corrective action as soon operating limits established using the during all energy recovery unit or waste- as possible and return the PM CPMS procedures in § 60.2680. burning kiln operating hours data measurement to within the established (milliamps). * * * * * value; and (e) If you use selective noncatalytic (5) You must collect data using the (iii) Within 30 days of the deviation reduction to comply with the emission PM CPMS at all times the energy or at the time of the annual compliance limitations, you must complete the recovery unit or waste-burning kiln is test, whichever comes first, conduct a following: operating and at the intervals specified PM emissions compliance test to in paragraph (x)(1)(ii) of this section, determine compliance with the PM * * * * * except for periods of monitoring system emissions limit and to verify. Within 45 (f) If you use an electrostatic malfunctions, repairs associated with days of the deviation, you must re- precipitator to comply with the monitoring system malfunctions, establish the CPMS operating limit. You emission limits of this subpart, you required monitoring system quality are not required to conduct additional must monitor the secondary power to assurance or quality control activities testing for any deviations that occur the electrostatic precipitator collection (including, as applicable, calibration between the time of the original plates and maintain the 3-hour block checks and required zero and span deviation and the PM emissions averages at or above the operating limits adjustments), and any scheduled compliance test required under this established during the mercury or maintenance as defined in your site- paragraph. particulate matter performance test. specific monitoring plan. (iv) PM CPMS deviations leading to (g) For waste-burning kilns not (6) You must use all the data collected more than four required performance equipped with a wet scrubber or dry during all energy recovery unit or waste- tests in a 12-month process operating scrubber, in place of hydrogen chloride burning kiln operating hours in period (rolling monthly) constitute a testing with EPA Method 321 at 40 CFR assessing the compliance with your violation of this subpart. part 63, appendix A, an owner or operating limit except: ■ 38. Section 60.2720 is amended by operator must install, calibrate, (i) Any data collected during revising paragraph (a)(3)(ii) to read as maintain, and operate a CEMS for monitoring system malfunctions, repairs follows: monitoring hydrogen chloride emissions associated with monitoring system discharged to the atmosphere and malfunctions, or required monitoring § 60.2720 May I conduct performance record the output of the system. To system quality assurance or quality testing less often? demonstrate continuous compliance control activities conducted during (a) * * * with the hydrogen chloride emissions monitoring system malfunctions are not (3) * * * limit for units other than waste-burning used in calculations (report any such (ii) For fugitive emissions, visible kilns not equipped with a wet scrubber periods in your annual deviation emissions (of combustion ash from the or dry scrubber, a facility may substitute report); ash conveying system) for 2 percent of use of a hydrogen chloride CEMS for (ii) Any data collected during periods the time during each of the three 1-hour conducting the hydrogen chloride when the monitoring system is out of observation periods. annual performance test, monitoring the control as specified in your site-specific * * * * * minimum hydrogen chloride sorbent monitoring plan, repairs associated with ■ 39. Section 60.2730 is amended by: flow rate, monitoring the minimum periods when the monitoring system is ■ a. Revising paragraph (c). scrubber liquor pH.

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(h) To demonstrate continuous sorbent injection is used solely for million corrected to 7 percent oxygen compliance with the particulate matter compliance with the mercury emission (dry basis) and used to calculate the 30- emissions limit, a facility may substitute limit. day rolling average emission use of a particulate matter CEMS for (k) To demonstrate continuous concentrations. CEMS data during conducting the particulate matter compliance with the nitrogen oxides startup and shutdown, as defined in this annual performance test and other CMS emissions limit, a facility may substitute subpart, are not corrected to 7 percent monitoring for PM compliance (e.g., bag use of a CEMS for the nitrogen oxides oxygen, and are measured at stack leak detectors, ESP secondary power, annual performance test to demonstrate oxygen content. The 1-hour arithmetic PM scrubber pressure). compliance with the nitrogen oxides averages must be calculated using the (i) To demonstrate continuous emissions limits and monitoring the data points required under § 60.13(e)(2). compliance with the dioxin/furan charge rate, secondary chamber (m) For energy recovery units that do emissions limit, a facility may substitute temperature and reagent flow for not use a wet scrubber, fabric filter with use of a continuous automated sampling selective noncatalytic reduction, if bag leak detection system, or particulate system for the dioxin/furan annual applicable. matter CEMS, you must install, operate, performance test. You must record the (1) Install, calibrate, maintain and certify and maintain a continuous output of the system and analyze the operate a CEMS for measuring nitrogen opacity monitoring system according to sample according to EPA Method 23 at oxides emissions discharged to the the procedures in paragraphs (m)(1) 40 CFR part 60, appendix A–7. This atmosphere and record the output of the through (5) of this section by the option to use a continuous automated system. The requirements under compliance date specified in § 60.2670. sampling system takes effect on the date performance specification 2 of appendix Energy recovery units that use a a final performance specification B of this part, the quality assurance particulate matter CEMS to demonstrate applicable to dioxin/furan from procedure 1 of appendix F of this part initial and continuing compliance continuous monitors is published in the and the procedures under § 60.13 must according to the procedures in Federal Register. The owner or operator be followed for installation, evaluation § 60.2730(n) are not required to install a who elects to continuously sample and operation of the CEMS. continuous opacity monitoring system dioxin/furan emissions instead of (2) Following the date that the initial and must perform the annual sampling and testing using EPA Method performance test for nitrogen oxides is performance tests for opacity consistent 23 at 40 CFR part 60, appendix A–7 completed or is required to be with § 60.2710(f). must install, calibrate, maintain and completed under § 60.2690, compliance * * * * * operate a continuous automated with the emission limit for nitrogen oxides required under § 60.52b(d) must (n) For coal and liquid/gas energy sampling system and must comply with recovery units, incinerators, and small the requirements specified in be determined based on the 30-day rolling average of the hourly emission remote incinerators, an owner or § 60.58b(p) and (q). A facility may operator may elect to install, calibrate, substitute continuous dioxin/furan concentrations using CEMS outlet data. maintain and operate a CEMS for monitoring for the minimum sorbent The 1-hour arithmetic averages must be monitoring particulate matter emissions flow rate, if activated carbon sorbent expressed in parts per million by discharged to the atmosphere and injection is used solely for compliance volume corrected to 7 percent oxygen record the output of the system. The with the dioxin/furan emission limit. (dry basis) and used to calculate the 30- (j) To demonstrate continuous day rolling average concentrations. owner or operator of an affected facility compliance with the mercury emissions CEMS data during startup and who continuously monitors particulate limit, a facility may substitute use of a shutdown, as defined in this subpart, matter emissions instead of conducting continuous automated sampling system are not corrected to 7 percent oxygen, performance testing using EPA Method for the mercury annual performance and are measured at stack oxygen 5 at 40 CFR part 60, appendix A–3 or, test. You must record the output of the content. The 1-hour arithmetic averages as applicable, monitor with a particulate system and analyze the sample at set must be calculated using the data points matter CPMS according to paragraph (r) intervals using any suitable required under § 60.13(e)(2). of this section, must install, calibrate, determinative technique that can meet (l) * * * maintain and operate a CEMS and must performance specification 12B criteria. (1) Install, calibrate, maintain and comply with the requirements specified This option to use a continuous operate a CEMS for measuring sulfur in paragraphs (n)(1) through (13) of this automated sampling system takes effect dioxide emissions discharged to the section. on the date a final performance atmosphere and record the output of the * * * * * specification applicable to mercury from system. The requirements under (6) The owner or operator of an monitors is published in the Federal performance specification 2 of appendix affected facility must conduct an initial Register. The owner or operator who B of this part, the quality assurance performance test for particulate matter elects to continuously sample mercury requirements of procedure 1 of emissions as required under § 60.2690. emissions instead of sampling and appendix F of this part and the Compliance with the particulate matter testing using EPA Method 29 or 30B at procedures under § 60.13 must be emission limit, if PM CEMS are elected 40 CFR part 60, appendix A–8, ASTM followed for installation, evaluation and for demonstrating compliance, must be D6784–02 (Reapproved 2008) operation of the CEMS. determined by using the CEMS (incorporated by reference, see § 60.17), (2) Following the date that the initial specified in paragraph (n) of this section or an approved alternative method for performance test for sulfur dioxide is to measure particulate matter. You must measuring mercury emissions, must completed or is required to be calculate a 30-day rolling average of 1- install, calibrate, maintain and operate a completed under § 60.2690, compliance hour arithmetic average emission continuous automated sampling system with the sulfur dioxide emission limit concentrations, including CEMS data and must comply with the requirements may be determined based on the 30-day during startup and shutdown, as specified in § 60.58b(p) and (q). A rolling average of the hourly arithmetic defined in this subpart, using Equation facility may substitute continuous average emission concentrations using 19–19 in section 12.4.1 of EPA mercury monitoring for the minimum CEMS outlet data. The 1-hour arithmetic Reference Method 19 at 40 CFR part 60, sorbent flow rate, if activated carbon averages must be expressed in parts per appendix A–7 of this part.

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(7) Compliance with the particulate and shutdown, as defined in this accumulation of the exhaust gas or matter emission limit must be subpart, the 1-hour arithmetic averages representative sample. The reportable determined based on the 30-day rolling must be expressed in parts per million measurement output from the PM CPMS average calculated using Equation 19–19 corrected to 7 percent oxygen (dry basis) must be expressed as milliamps. in section 12.4.1 of EPA Reference and used to calculate the 30-day rolling (ii) The PM CPMS must have a cycle Method 19 at 40 CFR part 60, Appendix average emission concentrations. CEMS time (i.e., period required to complete A–7 of the part from the 1-hour data collected during startup or sampling, measurement, and reporting arithmetic average of the CEMS outlet shutdown, as defined in this subpart, for each measurement) no longer than data. are not corrected to 7 percent oxygen, 60 minutes. * * * * * and are measured at stack oxygen (iii) The PM CPMS must be capable of (9) The 1-hour arithmetic averages content. The 1-hour arithmetic averages detecting and responding to particulate required under paragraph (n)(7) of this must be calculated using the data points matter concentrations of no greater than section must be expressed in milligrams required under § 60.13(e)(2). 0.5 mg/actual cubic meter. (2) During the initial performance test per dry standard cubic meter corrected * * * * * or any such subsequent performance to 7 percent oxygen (or carbon (q) For energy recovery units with a test that demonstrates compliance with dioxide)(dry basis) and must be used to design heat input capacity of 100 the PM limit, you must adjust the site- calculate the 30-day rolling average MMBtu per hour or greater that do not specific operating limit in accordance emission concentrations. CEMS data use a carbon monoxide CEMS, you must with the results of the performance test during startup and shutdown, as install, operate, and maintain a oxygen according to the procedures specified in defined in this subpart, are not analyzer system as defined in § 60.2875 § 60.2675. corrected to 7 percent oxygen, and are according to the procedures in (3) Collect PM CPMS hourly average measured at stack oxygen content. The paragraphs (q)(1) through (4) of this output data for all energy recovery unit 1-hour arithmetic averages must be section. or waste-burning kiln operating hours. calculated using the data points (1) The oxygen analyzer system must Express the PM CPMS output as required under § 60.13(e)(2). be installed by the initial performance milliamps.. (10) All valid CEMS data must be test date specified in § 60.2675. (4) Calculate the arithmetic 30-day used in calculating average emission (2) You must operate the oxygen trim rolling average of all of the hourly concentrations even if the minimum system within compliance with average PM CPMS output collected CEMS data requirements of paragraph paragraph (q)(3) of this section at all during all energy recovery unit or waste- (n)(8) of this section are not met. times. burning kiln operating hours data (11) The CEMS must be operated (3) You must maintain the oxygen (milliamps). according to performance specification level such that the 30-day rolling (5) You must collect data using the 11 in appendix B of this part. average that is established as the PM CPMS at all times the energy (12) During each relative accuracy test operating limit for oxygen according to recovery unit or waste-burning kiln is run of the CEMS required by paragraph (q)(4) of this section is not operating and at the intervals specified performance specification 11 in below the lowest hourly average oxygen in paragraph (r)(1)(ii) of this section, appendix B of this part, particulate concentration measured during the most except for periods of monitoring system matter and oxygen (or carbon dioxide) recent CO performance test. malfunctions, repairs associated with data must be collected concurrently (or (4) You must calculate and record a monitoring system malfunctions, within a 30-to 60-minute period) by 30-day rolling average oxygen required monitoring system quality both the CEMS and the following test concentration using Equation 19–19 in assurance or quality control activities methods. section 12.4.1 of EPA Reference Method (including, as applicable, calibration * * * * * 19 of Appendix A–7 of this part. checks and required zero and span (o) * * * (r) For energy recovery units with adjustments), and any scheduled (1) Install, calibrate, maintain, and annual average heat input rates greater maintenance as defined in your site- operate a CEMS for measuring carbon than or equal to 250 MMBtu/hour and specific monitoring plan. monoxide emissions discharged to the waste-burning kilns, you must install, (6) You must use all the data collected atmosphere and record the output of the calibrate, maintain, and operate a PM during all energy recovery unit or waste- system. The requirements under CPMS and record the output of the burning kiln operating hours in performance specification 4B of system as specified in paragraphs (r)(1) assessing the compliance with your appendix B of this part, the quality through (8) of this section. For other operating limit except: assurance procedure 1 of appendix F of energy recovery units, you may elect to (i) Any data collected during this part and the procedures under use PM CPMS operated in accordance monitoring system malfunctions, repairs § 60.13 must be followed for with this section. PM CPMS are suitable associated with monitoring system installation, evaluation, and operation in lieu of using other CMS for malfunctions, or required monitoring of the CEMS. monitoring PM compliance (e.g., bag system quality assurance or quality (2) Following the date that the initial leak detectors, ESP secondary power, control activities conducted during performance test for carbon monoxide is PM scrubber pressure). monitoring system malfunctions are not completed or is required to be (1) Install, calibrate, operate, and used in calculations (report any such completed under § 60.2690, compliance maintain your PM CPMS according to periods in your annual deviation with the carbon monoxide emission the procedures in your approved site- report); limit may be determined based on the specific monitoring plan developed in (ii) Any data collected during periods 30-day rolling average of the hourly accordance with § 60.2710(l) and when the monitoring system is out of arithmetic average emission (r)(1)(i) through (iii) of this section. control as specified in your site-specific concentrations, including CEMS data (i) The operating principle of the PM monitoring plan, repairs associated with during startup and shutdown as defined CPMS must be based on in-stack or periods when the monitoring system is in this subpart, using CEMS outlet data. extractive light scatter, light out of control, or required monitoring Except for CEMS data during startup scintillation, beta attenuation, or mass system quality assurance or quality

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control activities conducted during out- § 60.2740 What records must I keep? how the secondary material meets each of-control periods are not used in You must maintain the items (as of the legitimacy criteria under calculations (report emissions or applicable) as specified in paragraphs § 241.3(d)(1). If you combust a fuel that operating levels and report any such (a), (b), and (e) through (w) of this has been processed from a discarded periods in your annual deviation section for a period of at least 5 years: non-hazardous secondary material report); * * * * * pursuant to § 241.3(b)(4), you must keep (iii) Any PM CPMS data recorded (b) * * * records as to how the operations that during periods of CEMS data during (5) For affected CISWI units that produced the fuel satisfies the definition startup and shutdown, as defined in this establish operating limits for controls of processing in § 241.2 and each of the subpart. other than wet scrubbers under legitimacy criteria in § 241.3(d)(1) of (7) You must record and make § 60.2675(d) through (g) or § 60.2680, this chapter. If the fuel received a non- available upon request results of PM you must maintain data collected for all waste determination pursuant to the CPMS system performance audits, as operating parameters used to determine petition process submitted under well as the dates and duration of compliance with the operating limits. § 241.3(c), you must keep a record that periods from when the PM CPMS is out For energy recovery units using documents how the fuel satisfies the of control until completion of the activated carbon injection or a dry requirements of the petition process. For corrective actions necessary to return scrubber, you must also maintain operating units that combust non- the PM CPMS to operation consistent records of the load fraction and hazardous secondary materials as fuel with your site-specific monitoring plan. corresponding sorbent injection rate per § 241.4, you must keep records (8) For any deviation of the 30-day records. documenting that the material is a listed rolling average PM CPMS average value * * * * * non-waste under § 241.4(a). from the established operating (e) Identification of calendar dates (v) Records of the criteria used to parameter limit, you must: and times for which data show a establish that the unit qualifies as a (i) Within 48 hours of the deviation, deviation from the operating limits in small power production facility under visually inspect the air pollution control table 3 of this subpart or a deviation section 3(17)(C) of the Federal Power device; from other operating limits established Act (16 U.S.C. 796(17)(C)) and that the (ii) If inspection of the air pollution under § 60.2675(d) through (g) or waste material the unit is proposed to control device identifies the cause of the § 60.2680 with a description of the burn is homogeneous. deviation, take corrective action as soon deviations, reasons for such deviations, (w) Records of the criteria used to as possible and return the PM CPMS and a description of corrective actions establish that the unit qualifies as a measurement to within the established taken. cogeneration facility under section value; and 3(18)(B) of the Federal Power Act (16 * * * * * (iii) Within 30 days of the deviation U.S.C. 796(18)(B)) and that the waste (o) * * * or at the time of the annual compliance (2) All 1-hour average concentrations material the unit is proposed to burn is test, whichever comes first, conduct a of sulfur dioxide emissions. You must homogeneous. PM emissions compliance test to indicate which data are CEMS data ■ 41. Section 60.2770 is amended by: determine compliance with the PM during startup and shutdown. ■ a. Revising paragraph (m) emissions limit and to verify. Within 45 (3) All 1-hour average concentrations introductory text. days of the deviation, you must re- of nitrogen oxides emissions. You must ■ b. Revising paragraph (n). establish the CPMS operating limit. You indicate which data are CEMS data ■ c. Adding paragraph (p). are not required to conduct additional during startup and shutdown. The revisions and addition read as testing for any deviations that occur (4) All 1-hour average concentrations follows: between the time of the original of carbon monoxide emissions. You deviation and the PM emissions § 60.2770 What information must I include must indicate which data are CEMS data in my annual report? compliance test required under this during startup and shutdown. paragraph. (5) All 1-hour average concentrations * * * * * (iv) PM CPMS deviations leading to of particulate matter emissions. You (m) If there were periods during more than four required performance must indicate which data are CEMS data which the continuous monitoring tests in a 12-month process operating during startup and shutdown. system, including the CEMS, was out of period (rolling monthly) constitute a (6) All 1-hour average concentrations control as specified in paragraph (o) of violation of this subpart. of mercury emissions. You must this section, the annual report must (s) If you use a dry scrubber to comply indicate which data are CEMS data contain the following information for with the emission limits of this subpart, during startup and shutdown. each deviation from an emission or you must monitor the injection rate of (7) All 1-hour average concentrations operating limitation occurring for a each sorbent and maintain the 3-hour of hydrogen chloride emissions. You CISWI unit for which you are using a block averages at or above the operating must indicate which data are CEMS data continuous monitoring system to limits established during the hydrogen during startup and shutdown. comply with the emission and operating chloride performance test. (8) All 1-hour average percent oxygen limitations in this subpart. ■ 40. Section 60.2740 is amended by: concentrations. * * * * * ■ a. Revising introductory text. (9) All 1-hour average PM CPMS (n) If there were periods during which ■ b. Revising paragraph (b)(5). readings or particulate matter CEMS the continuous monitoring system, ■ c. Revising paragraph (e). outputs. including the CEMS, was not out of ■ d. Revising paragraphs (o)(2) through * * * * * control as specified in paragraph (o) of (7). (u) For operating units that combust this section, a statement that there were ■ e. Adding paragraphs (o)(8) and (9). non-hazardous secondary materials that not periods during which the ■ f. Revising paragraph (u) and (v). have been determined not to be solid continuous monitoring system was out ■ g. Adding paragraph (w). waste pursuant to § 241.3(b)(1), you of control during the reporting period. The revisions read as follows: must keep a record which documents * * * * *

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(p) For energy recovery units, include test audit (RATA) data electronically preceding the compliance the annual heat input and average into EPA’s Central Data Exchange by demonstration. annual heat input rate of all fuels being using CEDRI as mentioned in paragraph * * * * * burned in the unit to verify which (b)(1) of this section. Only RATA Calendar year means 365 consecutive subcategory of energy recovery unit pollutants that can be documented with days starting on January 1 and ending applies. the ERT (as listed on the ERT Web site) on December 31. ■ 42. Section 60.2795 is revised to read are subject to this requirement. For any CEMS data during startup and as follows: performance evaluations with no shutdown means the following: corresponding RATA pollutants listed (1) For incinerators, small remote § 60.2795 In what form can I submit my on the ERT Web site, the owner or incinerators, and energy recovery units: reports? operator shall submit the results of the CEMS data collected during the first (a) Submit initial, annual, and performance evaluation in paper hours of operation of a CISWI unit deviation reports electronically or in submissions to the Administrator. startup from a cold start until waste is paper format, postmarked on or before fed into the unit and the hours of the submittal due dates. ■ 43. Section 60.2875 is amended by: ■ operation following the cessation of (b) Submit results of performance a. Adding definitions for ‘‘30-day waste material being fed to the CISWI tests and CEMS performance evaluation rolling average,’’ ‘‘Annual heat input,’’ unit during a unit shutdown. For each tests as follows. ‘‘Average annual heat input rate,’’ startup event, the length of time that (1) Within 60 days after the date of ‘‘Contained gaseous material,’’ CEMS data may be claimed as being completing each performance test as ‘‘Continuous emission monitoring CEMS data during startup must be 48 required by this subpart, you must system,’’ ‘‘Dry scrubber,’’ ‘‘Foundry operating hours or less. For each submit the results of the performance sand thermal reclamation unit,’’ ‘‘Load shutdown event, the length of time that tests required by this subpart to EPA’s fraction,’’ ‘‘Municipal solid waste or CEMS data may be claimed as being WebFIRE database by using the municipal type solid waste,’’ ‘‘Oxygen CEMS data during shutdown must be 24 Compliance and Emissions Data analyzer system,’’ ‘‘Oxygen trim operating hours or less. Reporting Interface (CEDRI) that is system,’’ ‘‘Responsible official,’’ and (2) For waste-burning kilns: CEMS accessed through EPA’s Central Data ‘‘Solid waste.’’ data collected during the periods of kiln Exchange (CDX)(www.epa.gov/cdx). ■ b. Revising definitions for ‘‘Calendar operation that do not include normal Performance test data must be submitted year,’’ ‘‘Chemical recovery unit,’’ operations. Startup begins when the in the file format generated through use ‘‘Commercial and industrial solid waste kiln’s induced fan is turned on and of EPA’s Electronic Reporting Tool incinerator (CISWI),’’ ‘‘Continuous continues until continuous feed is (ERT) (see http://www.epa.gov/ttn/chief/ monitoring system (CMS),’’ ‘‘Cyclonic introduced into the kiln, at which time ert/index.html). Only data collected burn barrel,’’ ‘‘Energy recovery unit,’’ the kiln is in normal operating mode. using test methods on the ERT Web site ‘‘Energy recovery unit designed to burn Shutdown begins when feed to the kiln are subject to this requirement for biomass (Biomass),’’ ‘‘Energy recovery is halted. submitting reports electronically to unit designed to burn liquid waste Chemical recovery unit means WebFIRE. Owners or operators who materials and gas (Liquid/gas),’’ combustion units burning materials to claim that some of the information being ‘‘Incinerator,’’ ‘‘Modification or recover chemical constituents or to submitted for performance tests is modified CISWI unit,’’ ‘‘Process produce chemical compounds where confidential business information (CBI) change’’, ‘‘Raw mill’’, ‘‘Small, remote there is an existing commercial market must submit a complete ERT file incinerator’’, ‘‘Soil treatment unit,’’ for such recovered chemical including information claimed to be CBI ‘‘Solid waste incineration unit,’’ ‘‘Space constituents or compounds. A chemical on a compact disk, flash drive, or other heater,’’ ‘‘Waste burning kiln,’’ and recovery unit is not an incinerator, a commonly used electronic storage ‘‘Wet scrubber.’’ waste-burning kiln, an energy recovery media to EPA. The electronic media ■ c. Removing the definitions for unit or a small, remote incinerator must be clearly marked as CBI and ‘‘Cyclonic barrel burner’’ and under this subpart. The following seven mailed to U.S. EPA/OAPQS/CORE CBI ‘‘Homogeneous waste.’’ types of units are considered chemical Office, Attention: WebFIRE The revisions and additions read as recovery units: Administrator, MD C404–02, 4930 Old follows: (1) Units burning only pulping liquors Page Rd., Durham, NC 27703. The same (i.e., black liquor) that are reclaimed in ERT file with the CBI omitted must be § 60.2875 What definitions must I know? a pulping liquor recovery process and submitted to EPA via CDX as described * * * * * reused in the pulping process. earlier in this paragraph. At the 30-day rolling average means the (2) Units burning only spent sulfuric discretion of the delegated authority, arithmetic mean of the previous 720 acid used to produce virgin sulfuric you must also submit these reports, hours of valid operating data. Valid data acid. including the confidential business excludes periods when this unit is not (3) Units burning only wood or coal information, to the delegated authority operating. The 720 hours should be feedstock for the production of charcoal. in the format specified by the delegated consecutive, but not necessarily (4) Units burning only manufacturing authority. For any performance test continuous if operations are byproduct streams/residue containing conducted using test methods that are intermittent. catalyst metals that are reclaimed and not listed on the ERT Web site, the * * * * * reused as catalysts or used to produce owner or operator shall submit the commercial grade catalysts. results of the performance test in paper Annual heat input means the heat (5) Units burning only coke to submissions to the Administrator. input for the 12 months preceding the produce purified carbon monoxide that (2) Within 60 days after the date of compliance demonstration. is used as an intermediate in the completing each CEMS performance * * * * * production of other chemical evaluation test, as defined in this Average annual heat input rate means compounds. subpart and required by this subpart, annual heat input divided by the hours (6) Units burning only hydrocarbon you must submit the relative accuracy of operation for the 12 months liquids or solids to produce hydrogen,

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carbon monoxide, synthesis gas, or into the drum in a cyclonic manner to Modification or modified CISWI unit other gases for use in other enhance the mixing of waste material means a CISWI unit that has been manufacturing processes. and air. A cyclonic burn barrel is not an changed later than August 7, 2013, and (7) Units burning only photographic incinerator, a waste-burning kiln, an that meets one of two criteria: film to recover silver. energy recovery unit or a small, remote (i) The cumulative cost of the changes * * * * * incinerator under this subpart. over the life of the unit exceeds 50 Commercial and industrial solid * * * * * percent of the original cost of building waste incineration (CISWI) unit means Dry scrubber means an add-on air and installing the CISWI unit (not any distinct operating unit of any pollution control system that injects dry including the cost of land) updated to commercial or industrial facility that alkaline sorbent (dry injection) or sprays current costs (current dollars). To combusts, or has combusted in the an alkaline sorbent (spray dryer) to react determine what systems are within the preceding 6 months, any solid waste as with and neutralize acid gas in the boundary of the CISWI unit used to that term is defined in 40 CFR part 241. exhaust stream forming a dry powder calculate these costs, see the definition If the operating unit burns materials material. Sorbent injection systems in of CISWI unit. other than traditional fuels as defined in fluidized bed boilers and process (2) Any physical change in the CISWI § 241.2 that have been discarded, and heaters are included in this definition. unit or change in the method of you do not keep and produce records as A dry scrubber is a dry control system. operating it that increases the amount of required by § 60.2740(u), the operating * * * * * any air pollutant emitted for which unit is a CISWI unit. While not all Energy recovery unit means a section 129 or section 111 of the Clean CISWI units will include all of the combustion unit combusting solid waste Air Act has established standards. following components, a CISWI unit (as that term is defined by the Municipal solid waste or municipal- includes, but is not limited to, the solid Administrator in 40 CFR part 241) for type solid waste means household, waste feed system, grate system, flue gas energy recovery. Energy recovery units commercial/retail, or institutional system, waste heat recovery equipment, include units that would be considered waste. Household waste includes if any, and bottom ash system. The boilers and process heaters if they did material discarded by residential CISWI unit does not include air not combust solid waste. dwellings, hotels, motels, and other pollution control equipment or the Energy recovery unit designed to burn similar permanent or temporary stack. The CISWI unit boundary starts at biomass (Biomass) means an energy housing. Commercial/retail waste the solid waste hopper (if applicable) recovery unit that burns solid waste, includes material discarded by stores, and extends through two areas: The biomass, and non-coal solid materials offices, restaurants, warehouses, combustion unit flue gas system, which but less than 10 percent coal, on a heat nonmanufacturing activities at ends immediately after the last input basis on an annual average, either industrial facilities, and other similar combustion chamber or after the waste alone or in combination with liquid establishments or facilities. Institutional heat recovery equipment, if any; and the waste, liquid fuel or gaseous fuels. waste includes materials discarded by combustion unit bottom ash system, * * * * * schools, by hospitals (nonmedical), by which ends at the truck loading station Energy recovery unit designed to burn nonmanufacturing activities at prisons or similar equipment that transfers the liquid waste materials and gas (Liquid/ and government facilities, and other ash to final disposal. The CISWI unit gas) means an energy recovery unit that similar establishments or facilities. includes all ash handling systems burns a liquid waste with liquid or Household, commercial/retail, and connected to the bottom ash handling gaseous fuels not combined with any institutional waste does include yard system. solid fuel or waste materials. waste and refuse-derived fuel. Contained gaseous material means * * * * * Household, commercial/retail, and gases that are in a container when that Foundry sand thermal reclamation institutional waste does not include container is combusted. unit means a type of part reclamation used oil; sewage sludge; wood pallets; Continuous emission monitoring unit that removes coatings that are on construction, renovation, and system (CEMS) means the total foundry sand. A foundry sand thermal demolition wastes (which include equipment that may be required to meet reclamation unit is not an incinerator, a railroad ties and telephone poles); clean the data acquisition and availability waste-burning kiln, an energy recovery wood; industrial process or requirements of this subpart, used to unit or a small, remote incinerator manufacturing wastes; medical waste; or sample, condition (if applicable), under this subpart. motor vehicles (including motor vehicle analyze, and provide a record of Incinerator means any furnace used in parts or vehicle fluff). emissions. the process of combusting solid waste * * * * * Continuous monitoring system (CMS) (as that term is defined by the Oxygen analyzer system means all means the total equipment, required Administrator in 40 CFR part 241) for equipment required to determine the under the emission monitoring sections the purpose of reducing the volume of oxygen content of a gas stream and used in applicable subparts, used to sample the waste by removing combustible to monitor oxygen in the boiler or and condition (if applicable), to analyze, matter. Incinerator designs include process heater flue gas, boiler/process and to provide a permanent record of single chamber and two-chamber. heater, firebox, or other appropriate emissions or process parameters. A * * * * * location. This definition includes particulate matter continuous parameter Load fraction means the actual heat oxygen trim systems and certified monitoring system (PM CPMS) is a type input of an energy recovery unit divided oxygen CEMS. The source owner or of CMS. by heat input during the performance operator is responsible to install, Cyclonic burn barrel means a test that established the minimum calibrate, maintain, and operate the combustion device for waste materials sorbent injection rate or minimum oxygen analyzer system in accordance that is attached to a 55 gallon, open- activated carbon injection rate, with the manufacturer’s head drum. The device consists of a lid, expressed as a fraction (e.g., for 50 recommendations. which fits onto and encloses the drum, percent load the load fraction is 0.5). Oxygen trim system means a system of and a blower that forces combustion air * * * * * monitors that is used to maintain excess

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air at the desired level in a combustion (2) For a partnership or sole which burn tires or used oil, but not device. A typical system consists of a proprietorship: a general partner or the including refuse-derived fuel) for the flue gas oxygen and/or carbon monoxide proprietor, respectively; production of electric energy or in the monitor that automatically provides a (3) For a municipality, State, Federal, case of qualifying cogeneration facilities feedback signal to the combustion air or other public agency: Either a which burn homogeneous waste for the controller. principal executive officer or ranking production of electric energy and steam * * * * * elected official. For the purposes of this or forms of useful energy (such as heat) Process change means any of the part, a principal executive officer of a which are used for industrial, following physical or operational Federal agency includes the chief commercial, heating or cooling changes: executive officer having responsibility purposes; or (1) A physical change (maintenance for the overall operations of a principal (3) Air curtain incinerators provided activities excluded) to the CISWI unit geographic unit of the agency (e.g., a that such incinerators only burn wood which may increase the emission rate of Regional Administrator of EPA); or wastes, yard wastes and clean lumber any air pollutant to which a standard (4) For affected facilities: and that such air curtain incinerators applies; (i) The designated representative in so comply with opacity limitations to be established by the Administrator by (2) An operational change to the far as actions, standards, requirements, rule. CISWI unit where a new type of non- or prohibitions under Title IV of the Clean Air Act or the regulations Space heater means a unit that meets hazardous secondary material is being the requirements of 40 CFR 279.23. A combusted; promulgated thereunder are concerned; or space heater is not an incinerator, a (3) A physical change (maintenance waste-burning kiln, an energy recovery activities excluded) to the air pollution (ii) The designated representative for any other purposes under part 60. unit or a small, remote incinerator control devices used to comply with the under this subpart. emission limits for the CISWI unit (e.g., * * * * * replacing an electrostatic precipitator Small, remote incinerator means an * * * * * Waste-burning kiln means a kiln that with a fabric filter); incinerator that combusts solid waste (as that term is defined by the is heated, in whole or in part, by (4) An operational change to the air combusting solid waste (as the term is pollution control devices used to Administrator in 40 CFR part 241) and combusts 3 tons per day or less solid defined by the Administrator in 40 CFR comply with the emission limits for the part 241). Secondary materials used in affected CISWI unit (e.g., change in the waste and is more than 25 miles driving distance to the nearest municipal solid Portland cement kilns shall not be sorbent injection rate used for activated deemed to be combusted unless they are carbon injection). waste landfill. Soil treatment unit means a unit that introduced into the flame zone in the * * * * * thermally treats petroleum- hot end of the kiln or mixed with the Raw mill means a ball or tube mill, contaminated soils for the sole purpose precalciner fuel. vertical roller mill or other size of site remediation. A soil treatment Wet scrubber means an add-on air reduction equipment, that is not part of unit may be direct-fired or indirect pollution control device that uses an an in-line kiln/raw mill, used to grind fired. A soil treatment unit is not an aqueous or alkaline scrubbing liquor to feed to the appropriate size. Moisture incinerator, a waste-burning kiln, an collect particulate matter (including may be added or removed from the feed energy recovery unit or a small, remote nonvaporous metals and condensed during the grinding operation. If the raw incinerator under this subpart. organics) and/or to absorb and mill is used to remove moisture from Solid waste means the term solid neutralize acid gases. feed materials, it is also, by definition, waste as defined in 40 CFR 241.2. * * * * * a raw material dryer. The raw mill also Solid waste incineration unit means a ■ 44. Table 1 to subpart DDDD is includes the air separator associated distinct operating unit of any facility amended by revising footnotes a and b with the raw mill. which combusts any solid waste (as that to read as follows: * * * * * term is defined by the Administrator in Table 1 to Subpart DDDD of Part 60— Responsible official means one of the 40 CFR part 241) material from Model Rule—Increments of Progress following: commercial or industrial establishments and Compliance Schedules (1) For a corporation: A president, or the general public (including single secretary, treasurer, or vice-president of and multiple residences, hotels and * * * * * the corporation in charge of a principal motels). Such term does not include a Site-specific schedules can be used at the business function, or any other person incinerators or other units required to discretion of the state. b who performs similar policy or have a permit under section 3005 of the The date can be no later than 3 years after decision-making functions for the the effective date of state plan approval or Solid Waste Disposal Act. The term December 1, 2005 for CISWI units that corporation, or a duly authorized ‘‘solid waste incineration unit’’ does not commenced construction on or before representative of such person if the include: November 30, 1999. The date can be no later representative is responsible for the (1) Materials recovery facilities than 3 years after the effective date of overall operation of one or more (including primary or secondary approval of a revised state plan or February manufacturing, production, or operating smelters) which combust waste for the 7, 2018, for CISWI units that commenced facilities applying for or subject to a primary purpose of recovering metals; construction on or before June 4, 2010. permit and either: (2) Qualifying small power ■ 45. Table 2 to subpart DDDD of part (i) The facilities employ more than production facilities, as defined in 60 is amended by: 250 persons or have gross annual sales section 3(17)(C) of the Federal Power ■ a. Revising the table heading. or expenditures exceeding $25 million Act (16 U.S.C. 769(17)(C)), or qualifying ■ b. Revising the entry for ‘‘Hydrogen (in second quarter 1980 dollars); or cogeneration facilities, as defined in Chloride’’. (ii) The delegation of authority to section 3(18)(B) of the Federal Power ■ c. Revising the entry for ‘‘Opacity’’. such representatives is approved in Act (16 U.S.C. 796(18)(B)), which burn ■ d. Revising the entry for ‘‘Oxides of advance by the permitting authority; homogeneous waste (such as units nitrogen’’.

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■ e. Revising footnotes a and b. The revisions read as follows:

TABLE 2 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO INCINERATORS BEFORE [Date to be specified in state plan] b

And determining compliance For the air pollutant You must meet this Using this averaging time emission limitationa using this method

******* Hydrogen chloride ...... 62 parts per million by 3-run average (For Method 26, collect a min- Performance test (Method 26 or 26A at 40 dry volume. imum volume of 120 liters per run. For CFR part 60, appendix A–8). Method 26A, collect a minimum volume of 1 dry standard cubic meter per run).

******* Opacity ...... 10 percent...... Three 1-hour blocks consisting of ten 6- Performance test (Method 9 at 40 CFR part minute average opacity values. 60, appendix A–4). Oxides of nitrogen ...... 388 parts per million 3-run average (1 hour minimum sample time Performance test (Methods 7or 7E at 40 CFR by dry volume. per run). part 60, appendix A–4).

******* a All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. b Applies only to incinerators subject to the CISWI standards through a state plan or the Federal plan prior to June 4, 2010. The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018.

* * * * * ■ b. Revising the entry for ‘‘Lead’’. ■ f. Revising footnote a. ■ ■ c. Revising the entry for ‘‘Mercury’’. ■ g. Redesignating footnote c as footnote 46. Table 6 to subpart DDDD of part ■ d. Revising the entry for ‘‘Oxides of d. 60 is amended by: nitrogen’’. ■ a. Revising the entry for ‘‘Carbon ■ e. Revising the entry for ‘‘Sulfur ■ h. Adding footnote c. monoxide’’. dioxide’’. The revisions read as follows:

TABLE 6 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO INCINERATORS ON AND AFTER [Date to be specified in state plan] a

For the air You must meet this Using this averaging time And determining compliance using this method pollutant emission limitation b

******* Carbon 17 parts per million dry 3-run average (1 hour minimum sample time per Performance test (Method 10 at 40 CFR part 60, monoxide. volume. run). appendix A–4).

******* Lead ...... 0.015 milligrams per dry 3-run average (collect a minimum volume of 2 dry Performance test (Method 29 at 40 CFR part 60, standard cubic standard cubic meters). appendix A–8). Use ICPMS for the analytical meter. c finish. Mercury ...... 0.0048 milligrams per 3-run average (For Method 29 an ASTM D6784– Performance test (Method 29 or 30B at 40 CFR dry standard cubic 02 (Reapproved 2008) d, collect a minimum vol- part 60, appendix A–8) or ASTM D6784–02 meter. ume of 2 dry standard cubic meters per run. (Reapproved 2008). d For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, ap- pendix A). Oxides of ni- 53 parts per million dry 3-run average (for Method 7E, 1 hour minimum Performance test (Method 7 or 7E at 40 CFR part trogen. volume. sample time per run). 60, appendix A–4).

******* Sulfur diox- 11 parts per million dry 3-run average (1 hour minimum sample time per Performance test (Method 6 or 6c at 40 CFR part ide. volume. run). 60, appendix A–4).

******* a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing. d Incorporated by reference, see § 60.17.

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■ 47. Table 7 to subpart DDDD of part 60 is revised to read as follows:

TABLE 7 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO ENERGY RECOVERY UNITS AFTER MAY 20, 2011 [Date to be specified in state plan] a

You must meet this emission limitation b For the air pol- Using this averaging time And determining compliance lutant Liquid/Gas Solids using this method

Cadmium ...... 0.023 milligrams per dry Biomass—0.0014 milligrams 3-run average (collect a min- Performance test (Method 29 standard cubic meter. per dry standard cubic imum volume of 2 dry at 40 CFR part 60, appen- meter. c standard cubic meters). dix A–8). Use ICPMS for Coal—0.0095 milligrams per the analytical finish. dry standard cubic meter. Carbon mon- 35 parts per million dry vol- Biomass—260 parts per mil- 3-run average (1 hour min- Performance test (Method 10 oxide. ume. lion dry volume. imum sample time per run). at 40 CFR part 60, appen- Coal—95 parts per million dry dix A–4). volume. Dioxins/furans 2.9 nanograms per dry stand- Biomass—0.52 nanograms 3-run average (collect a min- Performance test (Method 23 (total mass ard cubic meter. per dry standard cubic imum volume of 4 dry at 40 CFR part 60, appen- basis). meter. c standard cubic meter). dix A–7). Coal—5.1 nanograms per dry standard cubic meter. c. Dioxins/furans 0.32 nanograms per dry Biomass—0.12 nanograms 3-run average (collect a min- Performance test (Method 23 (toxic standard cubic meter. per dry standard cubic imum volume of 4 dry at 40 CFR part 60, appen- equivalency meter. standard cubic meters). dix A–7). basis). Coal—0.075 nanograms per dry standard cubic meter. c. Hydrogen 14 parts per million dry vol- Biomass—0.20 parts per mil- 3-run average (for Method 26, Performance test (Method 26 chloride. ume. lion dry volume. collect a minimum of 120 li- or 26A at 40 CFR part 60, Coal—13 parts per million dry ters; for Method 26A, col- appendix A–8). volume. lect a minimum volume of 1 dry standard cubic meter). Lead ...... 0.096 milligrams per dry Biomass—0.014 milligrams 3-run average (collect a min- Performance test (Method 29 standard cubic meter. per dry standard cubic imum volume of 2 dry at 40 CFR part 60, appen- meter. c. standard cubic meters). dix A–8). Use ICPMS for Coal—0.14 milligrams per dry the analytical finish. standard cubic meter. c. Mercury ...... 0.0024 milligrams per dry Biomass—0.0022 milligrams 3-run average (For Method 29 Performance test (Method 29 standard cubic meter. per dry standard cubic and ASTM D6784–02 (Re- or 30B at 40 CFR part 60, meter. approved 2008) d, collect a appendix A–8) or ASTM Coal—0.016 milligrams per minimum volume of 2 dry D6784–02 (Reapproved dry standard cubic meter. standard cubic meters per 2008) d. run. For Method 30B, col- lect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A). Oxides of ni- 76 parts per million dry vol- Biomass—290 parts per mil- 3-run average (for Method Performance test (Method 7 trogen. ume. lion dry volume. 7E, 1 hour minimum sam- or 7E at 40 CFR part 60, Coal—340 parts per million ple time per run). appendix A–4). dry volume. Particulate 110 milligrams per dry stand- Biomass—11 milligrams per 3-run average (collect a min- Performance test (Method 5 matter filter- ard cubic meter. dry standard cubic meter. imum volume of 1 dry or 29 at 40 CFR part 60, able. Coal—160 milligrams per dry standard cubic meter). appendix A–3 or appendix standard cubic meter. A–8) if the unit has an an- nual average heat input rate less than or equal to 250 MMBtu/hr; or PM CPMS (as specified in § 60.2710(x)) if the unit has an annual average heat input rate greater than 250 MMBtu/hr. Sulfur dioxide 720 parts per million dry vol- Biomass—7.3 parts per mil- 3-run average (1 hour min- Performance test (Method 6 ume. lion dry volume. imum sample time per run). or 6c at 40 CFR part 60, Coal—650 parts per million appendix A–4). dry volume.

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TABLE 7 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO ENERGY RECOVERY UNITS AFTER MAY 20, 2011—Continued [Date to be specified in state plan] a

You must meet this emission limitation b For the air pol- Using this averaging time And determining compliance lutant Liquid/Gas Solids using this method

Fugitive ash ... Visible emissions for no more Visible emissions for no more Three 1-hour observation pe- Visible emission test (Method than 5 percent of the hourly than 5 percent of the hourly riods. 22 at 40 CFR part 60, ap- observation period. observation period. pendix A–7). a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018. b All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing, with the exception of annual performance tests to certify a CEMS or PM CPMS. d Incorporated by reference, see § 60.17.

■ 48. Table 8 to subpart DDDD of part 60 is revised to read as follows:

TABLE 8 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO WASTE-BURNING KILNS AFTER [Date to be specified in state plan.] a

And determining compliance using this For the air pollutant You must meet this emission Using this averaging time limitation b method

Cadmium ...... 0.0014 milligrams per dry standard 3-run average (collect a minimum vol- Performance test (Method 29 at 40 cubic meter. c. ume of 2 dry standard cubic meters). CFR part 60, appendix A–8). Carbon monoxide.. 110 (long kilns)/790 (preheater/ 3-run average (1 hour minimum sam- Performance test (Method 10 at 40 precalciner) parts per million dry vol- ple time per run). CFR part 60, appendix A–4). ume. Dioxins/furans (total 1.3 nanograms per dry standard cubic 3-run average (collect a minimum vol- Performance test (Method 23 at 40 mass basis). meter. c. ume of 4 dry standard cubic meters). CFR part 60, appendix A–7). Dioxins/furans 0.075 nanograms per dry standard 3-run average (collect a minimum vol- Performance test (Method 23 at 40 (toxic equivalency cubic meter. c. ume of 4 dry standard cubic meters). CFR part 60, appendix A–7). basis). Hydrogen chloride 3.0 parts per million dry volume. c ...... 3-run average (collect a minimum vol- Performance test (Method 321 at 40 ume of 1 dry standard cubic meter) CFR part 63, appendix A of this part) or 30-day rolling average if HCl or HCl CEMS if a wet scrubber is CEMS is being used. not used. Lead ...... 0.014 milligrams per dry standard 3-run average (collect a minimum vol- Performance test (Method 29 at 40 cubic meter. c. ume of 2 dry standard cubic meters). CFR part 60, appendix A–8). Mercury ...... 0.011 milligrams per dry standard 30-day rolling average ...... Mercury CEMS or sorbent trap moni- cubic meter. toring system (performance speci- fication 12A or 12B, respectively, of appendix B of this part.) Oxides of nitrogen 630 parts per million dry volume ...... 3-run average (for Method 7E, 1 hour Performance test (Method 7 or 7E at minimum sample time per run). 40 CFR part 60, appendix A–4). Particulate matter 4.6 milligrams per dry standard cubic 30-day rolling average...... PM CPMS (as specified in filterable. meter. § 60.2710(x)) Sulfur dioxide ...... 600 parts per million dry volume ...... 3-run average (for Method 6, collect a Performance test (Method 6 or 6c at minimum of 20 liters; for Method 6C, 40 CFR part 60, appendix A–4). 1 hour minimum sample time per run). a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018. b All emission limitations are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. c If you are conducting stack tests to demonstrate compliance and your performance tests for this pollutant for at least 2 consecutive years show that your emissions are at or below this limit, you can skip testing according to § 60.2720 if all of the other provisions of § 60.2720 are met. For all other pollutants that do not contain a footnote ‘‘c’’, your performance tests for this pollutant for at least 2 consecutive years must show that your emissions are at or below 75 percent of this limit in order to qualify for skip testing, with the exception of annual performance tests to certify a CEMS or PM CPMS.

■ 49. Table 9 to subpart DDDD of part 60 is revised to read as follows:

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TABLE 9 TO SUBPART DDDD OF PART 60—MODEL RULE—EMISSION LIMITATIONS THAT APPLY TO SMALL, REMOTE INCINERATORS AFTER [Date to be specified in state plan] a

And determining compliance using For the air pollutant You must meet this emission Using this averaging time limitationb this method

Cadmium ...... 0.95 milligrams per dry standard 3-run average (collect a minimum Performance test (Method 29 at 40 cubic meter. volume of 1 dry standard cubic CFR part 60, appendix A–8). meters per run). Carbon monoxide ...... 64 parts per million dry volume ...... 3-run average (1 hour minimum Performance test (Method 10 at 40 sample time per run). CFR part 60, appendix A–4). Dioxins/furans (total mass 4,400 nanograms per dry standard 3-run average (collect a minimum Performance test (Method 23 at 40 basis). cubic meter b. volume of 1 dry standard cubic CFR part 60, appendix A–7). meters per run). Dioxins/furans (toxic 180 nanograms per dry standard 3-run average (collect a minimum Performance test (Method 23 at 40 equivalency basis). cubic meter b. volume of 1 dry standard cubic CFR part 60, appendix A–7). meters). Fugitive ash ...... Visible emissions for no more than 5 Three 1-hour observation periods ..... Visible emissions test (Method 22 at percent of the hourly observation 40 CFR part 60, appendix A–7). period. Hydrogen chloride ...... 300 parts per million dry volume ...... 3-run average (For Method 26, col- Performance test (Method 26 or 26A lect a minimum volume of 120 li- at 40 CFR part 60, appendix A–8). ters per run. For Method 26A, col- lect a minimum volume of 1 dry standard cubic meter per run). Lead ...... 2.1 milligrams per dry standard cubic 3-run average (collect a minimum Performance test (Method 29 at 40 meter. volume of 1 dry standard cubic CFR part 60, appendix A–8). Use meters). ICPMS for the analytical finish. Mercury ...... 0.0053 milligrams per dry standard 3-run average (For Method 29 and Performance test (Method 29 or 30B cubic meter. ASTM D6784–02 (Reapproved at 40 CFR part 60, appendix A–8) 2008),c collect a minimum volume or ASTM D6784–02 (Reapproved of 2 dry standard cubic meters per 2008). c run. For Method 30B, collect a minimum sample as specified in Method 30B at 40 CFR part 60, appendix A). Oxides of nitrogen ...... 190 parts per million dry volume ...... 3-run average (for Method 7E, 1 Performance test (Method 7 or 7E at hour minimum sample time per 40 CFR part 60, appendix A–4). run). Particulate matter ...... 270 milligrams per dry standard 3-run average (collect a minimum Performance test (Method 5 or 29 at (filterable) ...... cubic meter. volume of 1 dry standard cubic 40 CFR part 60, appendix A–3 or meters). appendix A–8). Sulfur dioxide ...... 150 parts per million dry volume ...... 3-run average (for Method 6, collect Performance test (Method 6 or 6c at a minimum of 20 liters per run; for 40 CFR part 60, appendix A–4). Method 6C, 1 hour minimum sam- ple time per run). a The date specified in the state plan can be no later than 3 years after the effective date of approval of a revised state plan or February 7, 2018. b All emission limitations (except for opacity) are measured at 7 percent oxygen, dry basis at standard conditions. For dioxins/furans, you must meet either the total mass basis limit or the toxic equivalency basis limit. c Incorporated by reference, see § 60.17.

PART 241—SOLID WASTES USED AS ■ d. Revising the definition of used specifically for the production of FUELS OR INGREDIENTS IN ‘‘Resinated wood’’. cellulosic biofuels (e.g., energy cane, COMBUSTION UNITS The revisions read as follows: other fast growing grasses, byproducts of ethanol natural fermentation processes); ■ 50. The authority citation for part 241 § 241.2 Definitions. bagasse and other crop residues (e.g., continues to read as follows: * * * * * peanut shells, vines, orchard trees, Clean cellulosic biomass means those Authority: 42 U.S.C. 6903, 6912, 7429. hulls, seeds, spent grains, cotton residuals that are akin to traditional byproducts, corn and peanut production cellulosic biomass, including, but not residues, rice milling and grain elevator Subpart A—General limited to: Agricultural and forest- operation residues); wood collected derived biomass (e.g., green wood, forest ■ from forest fire clearance activities, trees 51. Section 241.2 is amended by: thinnings, clean and unadulterated bark, and clean wood found in disaster ■ a. Revising the definition of ‘‘Clean sawdust, trim, tree harvesting residuals debris, clean biomass from land clearing cellulosic biomass’’; from logging and sawmill materials, operations, and clean construction and ■ b. Revising the definition of hogged fuel, wood pellets, untreated demolition wood. These fuels are not ‘‘Contaminants’’; wood pallets); urban wood (e.g., tree secondary materials or solid wastes ■ c. Revising the definition of trimmings, stumps, and related forest- unless discarded. Clean biomass is ‘‘Established tire collection programs’’; derived biomass from urban settings); biomass that does not contain and corn stover and other biomass crops contaminants at concentrations not

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normally associated with virgin biomass Subpart B—Identification of Non- material is considered a solid waste and materials. Hazardous Secondary Materials That would be subject to all appropriate * * * * * Are Solid Wastes When Used as Fuels federal, state, and local requirements. or Ingredients in Combustion Units (c) The Regional Administrator may Contaminants means all pollutants grant a non-waste determination that a listed in Clean Air Act sections 112(b) ■ 52. Amend 241.3 as follows: non-hazardous secondary material that or 129(a)(4), with the following three ■ a. Revise paragraph (a) and (b). is used as a fuel, which is not managed modifications: ■ b. Revise paragraph (c) introductory within the control of the generator, is (1) The definition includes the text, and paragraphs (c)(1) introductory not discarded and is not a solid waste elements chlorine, fluorine, nitrogen, text, (c)(2) introductory text, and when combusted. This responsibility (c)(2)(ii), (iii), and (iv). and sulfur in cases where non- may be retained by the Assistant ■ c. Revise paragraph (d)(1)(iii). hazardous secondary materials are Administrator for the Office of Solid The revisions read as follows: burned as a fuel and combustion will Waste and Emergency Response if result in the formation of hydrogen § 241.3 Standards and procedures for combustors are located in multiple EPA chloride (HCl), hydrogen fluoride (HF), identification of non-hazardous secondary Regions and the petitioner requests that materials that are solid wastes when used the Assistant Administrator process the nitrogen oxides (NOX), or sulfur dioxide (SO ). Chlorine, fluorine, nitrogen, and as fuels or ingredients in combustion units. non-waste determination petition. If 2 multiple combustion units are located sulfur are not included in the definition (a) Except as provided in paragraph in one EPA Region, the application must in cases where non-hazardous (b) of this section or in § 241.4(a) of this subpart, non-hazardous secondary be submitted to the Regional secondary materials are used as an Administrator for that Region. The ingredient and not as a fuel. materials that are combusted are solid wastes, unless a petition is submitted to, criteria and process for making such (2) The definition does not include and a determination granted by, the EPA non-waste determinations includes the the following pollutants that are either pursuant to paragraph (c) of this section. following: unlikely to be found in non-hazardous The criteria to be addressed in the (1) Submittal of an application to the secondary materials and products made petition, as well as the process for Regional Administrator for the EPA from such materials or are adequately making the non-waste determination, Region where the facility or facilities are measured by other parts of this are specified in paragraph (c) of this located or the Assistant Administrator definition: hydrogen chloride (HCl), section. for the Office of Solid Waste and chlorine gas (Cl2), hydrogen fluoride (b) The following non-hazardous Emergency Response for a (HF), nitrogen oxides (NOX), sulfur secondary materials are not solid wastes determination that the non-hazardous secondary material, even though it has dioxide (SO2), fine mineral fibers, when combusted: particulate matter, coke oven emissions, (1) Non-hazardous secondary been transferred to a third party, has not opacity, diazomethane, white materials used as a fuel in a combustion been discarded and is indistinguishable phosphorus, and titanium tetrachloride. unit that remain within the control of in all relevant aspects from a fuel the generator and that meet the product. The determination will be (3) The definition does not include m- legitimacy criteria specified in based on whether the non-hazardous cresol, o-cresol, p-cresol, m-xylene, o- paragraph (d)(1) of this section. secondary material that has been xylene, and p-xylene as individual (2) The following non-hazardous discarded is a legitimate fuel as contaminants distinct from the grouped secondary materials that have not been specified in paragraph (d)(1) of this pollutants total cresols and total discarded and meet the legitimacy section and on the following criteria: xylenes. criteria specified in paragraph (d)(1) of * * * * * * * * * * this section when used in a combustion (2) The Regional Administrator or Established tire collection program unit (by the generator or outside the Assistant Administrator for the Office of Solid Waste and Emergency Response means a comprehensive collection control of the generator): will evaluate the application pursuant system or contractual arrangement that (i) [Reserved] to the following procedures: ensures scrap tires are not discarded (ii) [Reserved] and are handled as valuable (3) Non-hazardous secondary * * * * * materials used as an ingredient in a (ii) The Regional Administrator or commodities through arrival at the combustion unit that meet the Assistant Administrator for the Office of combustion facility. This can include legitimacy criteria specified in Solid Waste and Emergency Response tires that were not abandoned and were paragraph (d)(2) of this section. will evaluate the application and issue received from the general public at (4) Fuel or ingredient products that a draft notice tentatively granting or collection program events. are used in a combustion unit, and are denying the application. Notification of * * * * * produced from the processing of this tentative decision will be published Resinated wood means wood products discarded non-hazardous secondary in a newspaper advertisement or radio (containing binders and adhesives) materials and that meet the legitimacy broadcast in the locality where the produced by primary and secondary criteria specified in paragraph (d)(1) of facility combusting the non-hazardous wood products manufacturing. this section, with respect to fuels, and secondary material is located, and be Resinated wood includes residues from paragraph (d)(2) of this section, with made available on the EPA’s Web site. respect to ingredients. The legitimacy (iii) The Regional Administrator or the manufacture and use of resinated criteria apply after the non-hazardous the Assistant Administrator for the wood, including materials such as board secondary material is processed to Office of Solid Waste and Emergency trim, sander dust, panel trim, and off- produce a fuel or ingredient product. Response will accept public comments specification resinated wood products Until the discarded non-hazardous on the tentative decision for 30 days, that do not meet a manufacturing secondary material is processed to and may also hold a public hearing quality or standard. produce a non-waste fuel or ingredient, upon request or at his discretion. The * * * * * the discarded non-hazardous secondary Regional Administrator or the Assistant

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Administrator for the Office of Solid secondary material and traditional applicant must explain why such non- Waste and Emergency Response will fuel(s) prior to combustion. hazardous secondary material should be issue a final decision after receipt of * * * * * considered a non-waste fuel, balancing comments and after a hearing (if any). ■ 55. Add § 241.4 to read as follows: the legitimacy criteria with other If a determination is made that the non- relevant factors. hazardous secondary material is a non- § 241.4 Non-Waste Determinations for (2) The Administrator will make a waste fuel, it will be retroactive and Specific Non-Hazardous Secondary tentative decision to grant or deny a apply on the date the petition was Materials When Used as a Fuel. petition and will publish notice of such submitted. (a) The following non-hazardous tentative decision, either in the form of (iv) If a change occurs that affects how secondary materials are not solid wastes an advanced notice of proposed a non-hazardous secondary material when used as a fuel in a combustion rulemaking, a proposed rule, or a meets the relevant criteria contained in unit: tentative determination to deny the this paragraph after a formal non-waste (1) Scrap tires that are not discarded petition, in the Federal Register for determination has been granted, the and are managed under the oversight of written public comment. applicant must re-apply to the Regional established tire collection programs, (3) Upon the written request of any Administrator or the Assistant including tires removed from vehicles interested person, the Administrator Administrator for the Office of Solid and off-specification tires. may, at its discretion, hold an informal Waste and Emergency Response for a (2) Resinated wood. public hearing to consider oral formal determination that the non- (3) Coal refuse that has been comments on the tentative decision. A hazardous secondary material continues recovered from legacy piles and person requesting a hearing must state to meet the relevant criteria and, thus, processed in the same manner as the issues to be raised and explain why is not a solid waste. currently-generated coal refuse. written comments would not suffice to (d) * * * (4) Dewatered pulp and paper sludges communicate the person’s views. The (1) * * * that are not discarded and are generated Administrator may in any case decide (iii) The non-hazardous secondary and burned on-site by pulp and paper on its own motion to hold an informal material must contain contaminants or mills that burn a significant portion of public hearing. groups of contaminants at levels such materials where such dewatered (4) After evaluating all public comparable in concentration to or lower residuals are managed in a manner that comments the Administrator will make than those in traditional fuel(s) which preserves the meaningful heating value a final decision by publishing in the the combustion unit is designed to burn. of the materials. Federal Register a regulatory In determining which traditional fuel(s) (b) Any person may submit a amendment or a denial of the petition. a unit is designed to burn, persons may rulemaking petition to the (5) The Administrator will grant or choose a traditional fuel that can be or Administrator to identify additional deny a petition based on the weight of is burned in the particular type of non-hazardous secondary materials to evidence showing the following: boiler, whether or not the combustion be listed in paragraph (a) of this section. (i) The non-hazardous secondary unit is permitted to burn that traditional Contents and procedures for the material has not been discarded in the fuel. In comparing contaminants submittal of the petitions include the first instance and is legitimately used as between traditional fuel(s) and a non- following: a fuel in a combustion unit, or if hazardous secondary material, persons (1) Each petition must be submitted to discarded, has been sufficiently can use data for traditional fuel the Administrator by certified mail and processed into a material that is contaminant levels compiled from must include: national surveys, as well as contaminant (i) The petitioner’s name and address; legitimately used as a fuel. level data from the specific traditional (ii) A statement of the petitioner’s (ii) Where any one of the legitimacy fuel being replaced. To account for interest in the proposed action; criteria in § 241.3(d)(1) is not met, that natural variability in contaminant (iii) A description of the proposed the use of the non-hazardous secondary levels, persons can use the full range of action, including (where appropriate) material is integrally tied to the traditional fuel contaminant levels, suggested regulatory language; and industrial production process, that the provided such comparisons also (iv) A statement of the need and non-hazardous secondary material is consider variability in non-hazardous justification for the proposed action, functionally the same as the comparable secondary material contaminant levels. including any supporting tests, studies, traditional fuel, or other relevant factors Such comparisons are to be based on a or other information. Where the non- as appropriate. direct comparison of the contaminant hazardous secondary material does not [FR Doc. 2012–31632 Filed 2–6–13; 8:45 am] levels in both the non-hazardous meet the legitimacy criteria, the BILLING CODE 6560–50–P

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