BEVERIDGE

&DIAMOND PC

David M. Friedland

1350 I Street, NW.

Suite 700

Washington, D.C. 20005-3311

Direct: (202) 789-6047

Fax: (202) 789-6190

dfriedland@bdlaw.com

December 28, 2009

Ms. Lisa Jackson, Administrator

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, Mail Code 1101A

Washington, DC 20460

Re: Petition for Reconsideration of Mandatory Reporting of Greenhouse Gases, Final

Rule

Dear Ms. Jackson:

Enclosed is a Petition for Reconsideration of the Final Rule on Mandatory Reporting of

Greenhouse Gases, 74 Fed. Reg. 56,260 (October 30, 2009), submitted on behalf of the Energy

Recovery Council.

Thank you for your attention to this matter. Please do not hesitate to contact me with any

questions.

Enclosure

BEVERIDGE

& DIAMOND PC

David M. Friedland

1350 I Street, NW.

Suite 700

Washington, D.C. 20005-3311

Direct: (202) 789-6047

Fax: (202) 789-6190

dfriedland@bdlaw.com

December 28, 2009

Ms. Lisa Jackson, Administrator

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, Mail Code 110 i A

Washington, DC 20460

Re: Petition for Reconsideration of Mandatory Reporting of Greenhouse Gases, Final

Rule

Dear Ms. Jackson:

Enclosed is a Petition for Reconsideration of the Final Rule on Mandatory Reporting of

Greenhouse Gases, 74 Fed. Reg. 56,260 (October 30, 2009), submitted on behalf of the Energy

Recovery CounciL.

Thank you for your attention to this matter. Please do not hesitate to contact me with any

questions.

~y,

DfìF~rf(( (l

Enclosure
BEFORE THE ADMINISTRATOR

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

)

)

)

)

)

)

------------)

In the Matter of the Final Rule:

Mandatory Reporting of

Greenhouse Gases

RIN 2060-A079

EPA Docket No. OAR-2008-0508

PETITION FOR RECONSIDERATION

Pursuant to Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), the

Energy Recovery Council ("ERC"), hereby petitions the Administrator of the United States

Environmental Protection Agency ("EPA") to reconsider portions of the final rule Mandatory

Reporting of Greenhouse Gases (the "Final Rule"), published in the Federal Register at 74 Fed.

Reg. 56,260 (October 30, 2009). As developed in detail below, ERC requests reconsideration of

the following portions of the Final Rule:

@ at 40 C.F.R. Part 98, Subpart C, Table C-l, the designation of municipal solid waste

("MSW") and tires as "fossil fuel-derived fuels (solid)," whereas EPA had proposed

to designate both MSW and tires as "alternative fuels" in its proposed rule, 74 Fed.

Reg. 16448, 16481-82 (Apr. 10,2009) (the "Proposed Rule");

e at 40 C.F.R. § 98.6, changes in the definition of "fossil fuel" to include "consumer

products that are derived from such materials and are combusted" and omit the phrase

"derived ... for the purpose of creating useful heat," and the addition of a definition

of "fossil fuel-fired," which did not appear in the Proposed Rule; and

BEFORE THE ADMINISTRATOR

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

In the Matter of the Final Rule:

)

)

)

)

)

)

)

RIN 2060-A079

Mandatory Reporting of EPA Docket No. OAR-2008-0508

Greenhouse Gases

PETITION FOR RECONSIDERATION

Pursuant to Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), the

Energy Recovery Council ("ERC"), hereby petitions the Administrator of the United States

Environmental Protection Agency ("EPA") to reconsider portions of the final rule Mandatory

Reporting of Greenhouse Gases (the "Final Rule"), published in the Federal Register at 74 Fed.

Reg. 56,260 (October 30, 2009). As developed in detail below, ERC requests reconsideration of

the following portions of the Final Rule:

@ at 40 C.F.R. Part 98, Subpart C, Table C-1, the designation of municipal solid waste

("MSW") and tires as "fossil fuel-derived fuels (solid)," whereas EPA had proposed

to designate both MSW and tires as "alternative fuels" in its proposed rule, 74 Fed.

Reg. 16448, 16481-82 (Apr. 10,2009) (the "Proposed Rule");

e at 40 C.F.R. § 98.6, changes in the definition of "fossil fuel" to include "consumer

products that are denved from such materials and are combusted" and omit the phrase

"derived. . . for the purpose of creating useful heat," and the addition of a definition

of "fossil fuel-fired," which did not appear in the Proposed Rule; and
@ at 40 C.F.R. § 98.33(b)(4)(H), the use of Tier 4 emissions estimation methodology

required for MSW combustion units with an input capacity greater than 250 tons of

MSWperday.

1. BACKGROUND

ERC is a national non-profit trade association that represents the waste-to-energy

industry and communities that own waste-to-energy facilities. Current ERC members own and

operate 69 of the 87 modem waste-to-energy facilities that operate nationwide, safely disposing

ofMSW, while at the same time generating renewable electricity using modem combustion

technology equipped with state-of-the-art emission control systems. EPA estimates that the

waste-to-energy industry as a whole transforms between 12 and 15 percent of the United States

MSW stream into energy.' This industry is widely regarded as socially and environmentally

beneficial because it enables society to obtain a final use from the mass of discarded items that

would otherwise take up space in landfills, and because it reduces the demand for and reliance on

other sources of electricity.

II. GROUNDS FOR RECONSIDERA nON

Pursuant to 307( d)(7)(B) of the Clean Air Act, if a petitioner shows that "that it was

impracticable to raise [its] objection within [the period for public comment] or if the grounds for

such objection arose after the period for public comment ... and if such objection is of central

relevance to the outcome of the rule, the Administrator shall convene a proceeding for

1 EPA, Municipal Solid Waste in the United States: 2007: Facts and Figures at 2, Table

ES-2, available at http://www.epa.gov/ epawaste/nonhaz/municipal/pubs/msw07 -rpt.pdf.

2

@ at 40 C.F.R. § 98.33(b)(4)(ii), the use of Tier 4 emissions estimation methodology

required for MSW combustion units with an input capacity greater than 250 tons of

MSWperday.

1. BACKGROUND

ERC is a national non-profit trade association that represents the waste-to-energy

industry and communities that own waste-to-energy facilties. Curent ERC members own and

operate 69 of the 87 modern waste-to-energy facilities that operate nationwide, safely disposing

ofMSW, while at the same time generating renewable electricity using modern combustion

technology equipped with state-of-the-art emission control systems. EPA estimates that the

waste-to-energy industry as a whole transforms between 12 and 15 percent of the United States

MSW stream into energy. i This industry is widely regarded as socially and environmentally

beneficial because it enables society to obtain a final use from the mass of discarded items that

would otherwise take up space in landfills, and because it reduces the demand for and reliance on

other sources of electncity.

II. GROUNDS FOR RECONSIDERA nON

Pursuant to 307( d)(7)(B) of the Clean Air Act, if a petitioner shows that "that it was

impracticable to raise (its) objection within (the period for public comment) or if the grounds for

such objection arose after the period for public comment. . . and if such objection is of central

relevance to the outcome of the rule, the Administrator shall convene a proceeding for

i EPA, Municipal Solid Waste in the United States: 2007: Facts and Figures at 2, Table

ES-2, available at http://ww.epa.gov/ epawaste/nonhaz/municipalipubs/msw07 -rpt.pdf.

2
reconsideration of the rule." 42 U.S.C. § 7607(d)(7)(B). As detailed below, both ofERC's

objections to the Final Rule satisfy the terms of this provision. Briefly stated, the definitional

and labeling changes were not proposed, so there was no basis to foresee the possibility that EPA

would spontaneously revise its rule in this way. These changes occurred after the comment

period so it was impossible to object to them before EPA indicated that it was considering such

changes. Regarding the requirement of Tier 4 monitoring, EPA's proffered explanation for

failing to address comments on the issue has no logical relationship to the stated purposes of the

Proposed Rule, and is thereby tantamount to the denial of a meaningful opportunity to participate

in the notice and comment process. Thus the grounds for this objection arose after the period for

public comment. Moreover ERC's objections are of central relevance to the outcome of the rule

because they directly impact ERC's members' compliance with the Clean Air Act (in the case of

its first two bulleted items above) and ERC's members' ability to comply with the mandates of

the Final Rule (in the case ofthe third bulleted item).

III. ARGUMENT

A. The Reclassification of Municipal Solid Waste and Tires as "Fossil Fuel-Derived

Fuels" and the Redefinition of "Fossil Fuel" to Include Consumer Products Are

Significant Regulatory Changes That EPA Did Not Propose, but Instead Made

Summarily, Without Notice or an Opportunity for Public Comment

The Proposed Rule contained two tables, C-l and C-2, that listed default values for CO2

emissions based on the heating values of various types of fuels. 74 Fed. Reg. at16481-82. Table

C-l covered fuels classified as "petroleum products" and "biomass-derived fuels." Table C-2

covered "alternative fuels," which included tires and MSW, among others. The Final Rule,

however, eliminates the proposed Table C-2, as well as the category of "alternative fuels." 40

3

reconsideration of the rule." 42 U.S.C. § 7607(d)(7)(B). As detailed below, both ofERC's

objections to the Final Rule satisfY the terms of this provision. Briefly stated, the definitional

and labeling changes were not proposed, so there was no basis to foresee the possibility that EPA

would spontaneously revise its rule in this way. These changes occurred after the comment

period so it was impossible to object to them before EPA indicated that it was considenng such

changes. Regarding the requirement of Tier 4 monitoring, EPA's proffered explanation for

failing to address comments on the issue has no logical relationship to the stated purposes of the

Proposed Rule, and is thereby tantamount to the denial of a meaningful opportunity to paricipate

in the notice and comment process. Thus the grounds for this objection arose after the penod for

public comment. Moreover ERC's objections are of central relevance to the outcome of the rule

because they directly impact ERC's members' compliance with the Clean Air Act (in the case of

its first two bulleted items above) and ERC's members' ability to comply with the mandates of

the Final Rule (in the case ofthe third bulleted item).

III. ARGUMENT

A. The Reclassifcation of Municipal Solid Waste and Tires as "Fossil Fuel-Derived

Fuels" and the Redefinition of "Fossil Fuel" to Include Consumer Products Are

Signifcant Regulatory Changes That EPA Did Not Propose, but Instead Made

Summarily, Without Notice or an Opportunity for Public Comment

The Proposed Rule contained two tables, C-L and C-2, that listed default values for CO2

emissions based on the heating values of various types of fuels. 74 Fed. Reg. at16481-82. Table

C-l covered fuels classified as "petroleum products" and "biomass-denved fuels." Table C-2

covered "alternative fuels," which included tires and MSW, among others. The Final Rule,

however, eliminates the proposed Table C-2, as well as the category of "alternative fuels." 40

3
C.F.R. Part 98, Subpart C, Table C-l; 74 Fed. Reg. at 56409-10. Of the fuel types that were

included in the proposed Table C-2, the Final Rule omits the majority and retains only MSW and

tires, both of which appear in the new Table C-l under the new subheading "fossil fuel-derived

fuels (solid).,,2 The classification ofMSW and tires as "fossil fuel-derived fuels" in Table C-l of

the Final Rule has no clear explanation or precedent either in this rulemaking or in any other

readily identifiable source. Neither the phrase nor the classification was included in the

Proposed Rule, so the public was denied any opportunity to comment on the change.'

In addition, in Subpart A, the Proposed Rule set forth the same definition of "fossil fuel"

that applies in the New Source Performance Standards program: "Fossil fuel means natural gas,

petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such materials for the

purpose of creating useful heat." 74 Fed. Reg. at 16621 (emphasis added)." The Final Rule,

however, dramatically altered the proposal to produce the following definition, which has no

precedent in CAA regulation: "Fossil fuel means natural gas, petroleum, coal, or any form of

solid, liquid, or gaseous fuel derived from such material, including for example, consumer

products that are derived from such materials and are combusted" 40 C.F.R. § 98.6; 74 Fed.

Reg. at 56387 (emphasis added). As with the reclassification ofMSW and tires as "fossil fuelderived fuels," this new definition of "fossil fuel" was not set forth in the Proposed Rule or

2 The new Table C-l also adds the new category "fossil fuel-derived fuels (gaseous)"

which contains blast furnace gas and coke oven gas, neither of which appeared in the proposed

tables C-l or C-2.

3 Moreover, the classification of MSW as "fossil fuel-derived fuel" actually conflicts with

the logical reading of the Proposed Rule: in Table C-2, MSW was placed after the catch-all

category of "other fossil based wastes," implying that the Rule's drafters did not consider MSW

to be a fossil fuel derivative.

4 Cf 40 C.F.R. §§ 60.41, 60.41Da, 60.161(i).

4

C.F.R. Part 98, Subpart C, Table C-L; 74 Fed. Reg. at 56409-10. Of the fuel types that were

included in the proposed Table C-2, the Final Rule omits the majority and retains only MSW and

tires, both of which appear in the new Table C-L under the new subheading "fossil fuel-derived

fuels (solid)."z The classification ofMSW and tires as "fossil fuel-derived fuels" in Table C-L of

the Final Rule has no clear explanation or precedent either in this rulemaking or in any other

readily identifiable source. Neither the phrase nor the classification was included in the

Proposed Rule, so the public was denied any opportunity to comment on the change.3

In addition, in Subpart A, the Proposed Rule set forth the same definition of "fossil fuel"

that applies in the New Source Performance Standards program: "Fossil fuel means natural gas,

petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such materials for the

purpose of creating useful heat." 74 Fed. Reg. at 16621 (emphasis added).4 The Final Rule,

however, dramatically altered the proposal to produce the following definition, which has no

precedent in CAA regulation: "Fossil fuel means natural gas, petroleum, coal, or any form of

solid, liquid, or gaseous fuel derived from such material, includingfor example, consumer

products that are derivedfrom such materials and are combusted." 40 C.F.R. § 98.6; 74 Fed.

Reg. at 56387 (emphasis added). As with the reclassification ofMSW and tires as "fossil fuelderived fuels," this new definition of "fossil fuel" was not set forth in the Proposed Rule or

Z The new Table C-L also adds the new category "fossil fuel-derived fuels (gaseous)"

which contains blast fuace gas and coke oven gas, neither of which appeared in the proposed

tables C-1 or C-2.

3 Moreover, the classification of MSW as "fossil fuel-derived fuel" actually conflicts with

the logical reading ofthe Proposed Rule: in Table C-2, MSW was placed after the catch-all

category of "other fossil based wastes," implying that the Rule's drafters did not consider MSW

to be a fossil fuel derivative.

4 Cf 40 C.F.R. §§ 60.41, 60.41Da, 60.161(i).

4
discussed at all in the preamble to the Proposed Rule. In addition, the Final Rule inserted a new

definition that was not present in the Proposed Rule: "Fossil fuel-fired means powered by

combustion of fossil fuel alone or in combination with any other fuel, regardless of the

percentage of fossil fuel consumed." 40 C.F.R. § 98.6; 74 Fed. Reg. at 56387.

These changes in terminology are problematic because they reclassify MSW and tires not

only as "fossil fuel-derived fuels," but as fossil fuels. They have this effect because, while

"fossil fuel-derived fuel" is a new phrase that has not been defined under any CAA regulation,

the definition of "fossil fuel" that is applicable under several CAA programs, notably the Clean

Air Interstate Rule ("CAIR") and the Acid Rain Program, includes "any form of solid, liquid, or

gaseousfuel derived from [other fossil fuels}." E.g., 40 C.F.R. §§ 72.2, 96.102 (emphasis

added). In other words, the relevant definition of "fossil fuels" encompasses "fossil fuel-derived

fuels." Consequently, the reclassification ofMSW as "fossil fuel-derived fuel" has the effect of

placing MSW within the definition of "fossil fuel." 5 Likewise, the newly drafted definition of

"fossil fuel," expanded to include "consumer products that are derived from such materials and

are combusted," would have the effect of including a significant proportion of the waste stream

that municipal waste combustors ("MWCs") bum.

Various important provisions in existing CAA regulations rely on the existence of a

distinction between MSW and fossil fuel. In particular, ifMSW can be classified as fossil fuel

the exemptions of "solid waste incineration units" from CAIR and the Acid Rain Program could

5 As if to underscore the unreasonable nature of these unannounced changes, in another,

concurrent CAA rulemaking, regarding proposed changes to the Renewable Fuel Standard, EPA

solicited public comment on whether a statutory definition of "renewable biomass" should be

interpreted to include MSW, which would have the effect of deeming MSW to be entirely nonfossil fuel. 74 Fed. Reg. 24904, 24922 (May 26, 2009). Taken together, the two rulemakings,

which overlap in time, could produce the absurd result of simultaneously classifying MSW as

fossil fuel in one program and non-fossil fuel in another program, both under the same statute.

5

discussed at all in the preamble to the Proposed Rule. In addition, the Final Rule inserted a new

definition that was not present in the Proposed Rule: "Fossil fuel-fired means powered by

combustion of fossil fuel alone or in combination with any other fuel, regardless of the

percentage of fossil fuel consumed." 40 C.F.R. § 98.6; 74 Fed. Reg. at 56387.

These changes in terminology are problematic because they reclassifY MSW and tires not

only as "fossil fuel-derived fuels," but as fossil fuels. They have this effect because, while

"fossil fuel-derived fuel" is a new phrase that has not been defined under any CAA regulation,

the definition of "fossil fuel" that is applicable under several CAA programs, notably the Clean

Air Interstate Rule ("CAIR") and the Acid Rain Program, includes "any form of solid, liquid, or

gaseousfuel derivedfrom (other fossilfuelsJ." E.g., 40 C.F.R. §§ 72.2, 96.102 (emphasis

added). In other words, the relevant definition of "fossil fuels" encompasses "fossil fuel-derived

fuels." Consequently, the reclassification ofMSW as "fossil fuel-derived fuel" has the effect of

placing MSW within the definition of "fossil fueL." 5 Likewise, the newly drafted definition of

"fossil fuel," expanded to include "consumer products that are derived from such materials and

are combusted," would have the effect of including a significant proportion of the waste stream

that municipal waste combustors ("MWCs") burn.

Various important provisions in existing CAA regulations rely on the existence of a

distinction between MSW and fossil fueL. In paricular, ifMSW can be classified as fossil fuel

the exemptions of "solid waste incineration units" from CAIR and the Acid Rain Program could

5 As if 

to underscore the unreasonable nature of these unanounced changes, in another,

concurrent CAA rulemaking, regarding proposed changes to the Renewable Fuel Standard, EPA

solicited public comment on whether a statutory definition of "renewable biomass" should be

interpreted to include MSW, which would have the effect of deeming MSW to be entirely nonfossil fuel. 74 Fed. Reg. 24904, 24922 (May 26, 2009). Taken together, the two rulemakings,

which overlap in time, could produce the absurd result of simultaneously classifYing MSW as

fossil fuel in one program and non-fossil fuel in another program, both under the same statute.

5
be rendered meaningless, as described below, a result EPA could not have intended. So, for the

following three broad reasons, discussed in detail below, ERC maintains that the new language

in the Final Rule is invalid: 1) the changes were procedurally defective, occurring without notice

or the opportunity for comment, and they are not a "logical outgrowth" of the proposed rule; 2)

reclassifying MSW as "fossil fuel-derived fuel," and thus indirectly as fossil fuel, could

undermine the solid waste incineration unit exemption from CAIR and the Acid Rain Program;

and 3) classifying tires as "fossil fuel-derived fuel," and redefining "fossil fuel" to include

consumer products, have the same regulatory implications as the reclassification ofMSW.

1. The Reclassification of Municipal Solid Waste and Tires as "Fossil Fuel-Derived Fuels"

and the Redefinition of "Fossil Fuel" to Include Consumer Products Are Not "Logical

Outgrowths" of the Proposed Rule

It is a settled principle of administrative law that in rulemakings subject to notice and

comment procedures an agency's final rule must be a "logical outgrowth" of its proposed rule.

See, e.g., City of Waukesha v. EPA, 320 F.3d 228,245 (D.C. Cir. 2003); Small Refiner Lead

Phase-Down Task Force v. EPA, 705 F.2d 506,547 (D.C. Cir. 1983). In Small Refiner Lead

Phase-Down Task Force, for example, the court was reviewing a change to a definition under a

CAA program made by EPA between a proposed and final rule. Specifically, EPA had proposed

to change the definition of "small refinery," but in response to one comment it made a significant

alteration beyond the changes already contained in its proposal, adding a "past ownership

requirement." Id. at 546. The D.C. Circuit ruled that such a change violated the "logical

outgrowth" principle and vacated that portion of the definition. Id. at 55l. The court reasoned

that the regulated community could not have anticipated the change based on EPA's proposal

and for that reason the change was not a valid result of the notice and comment process as

6

be rendered meaningless, as described below, a result EPA could not have intended. So, for the

following three broad reasons, discussed in detail below, ERC maintains that the new language

in the Final Rule is invalid: 1) the changes were procedurally defective, occurring without notice

or the opportunity for comment, and they are not a "logical outgrowth" of the proposed rule; 2)

reclassifying MSW as "fossil fuel-derived fuel," and thus indirectly as fossil fuel, could

undermine the solid waste incineration unit exemption from CAIR and the Acid Rain Program;

and 3) classifying tires as "fossil fuel-derived fuel," and redefining "fossil fuel" to include

consumer products, have the same regulatory implications as the reclassification ofMSW.

1. The Reclassification of Municipal Solid Waste and Tires as "Fossil Fuel-Derived Fuels"

and the Redefinition of "Fossil Fuel" to Include Consumer Products Are Not "Logical

Outgrowths" of the Proposed Rule

It is a settled principle of administrative law that in rulemakings subject to notice and

comment procedures an agency's final rule must be a "logical outgrowth" of its proposed rule.

See, e.g., City of Waukesha v. EPA, 320 F.3d 228,245 (D.C. Cir. 2003); Small Refiner Lead

Phase-Down Task Force v. EPA, 705 F.2d 506,547 (D.C. Cir. 1983). In Small Refiner Lead

Phase-Down Task Force, for example, the court was reviewing a change to a definition under a

CAA program made by EPA between a proposed and final rule. Specifically, EPA had proposed

to change the definition of "small refinery," but in response to one comment it made a significant

alteration beyond the changes already contained in its proposal, adding a "past ownership

requirement." ld at 546. The D.C. Circuit ruled that such a change violated the "logical

outgrowth" principle and vacated that portion of the definition. Id at 551. The court reasoned

that the regulated community could not have anticipated the change based on EPA's proposal

and for that reason the change was not a valid result of the notice and comment process as

6
prescribed by both the Administrative Procedure Act,S U.S.C. § 500 et seq., and, more

particularly, by the more rigorous requirements ofCAA section 307(d)(3), 42 U.S.C. §

7607(d)(3).

In the present case, EPA's reclassification ofMSW and redefinition of "fossil fuel"

clearly violate the "logical outgrowth" principle because EPA provided no notice whatsoever,

either of the nature of the definitional changes or of the possibility that it would make such

changes at all. As a result, the changes were completely unforeseeable. Moreover, even the

change vacated in Small Refiner Lead Phase-Down Task Force had the virtue of an explanation,

which the court found to be reasonable but not a cure for the lack of notice. By contrast, EPA

has offered no explanation at all for the changes that reclassify MSW as fossil fuel, and, as

discussed below, the changes are unreasonable.

The reclassification ofMSW, tires and other consumer products as fossil fuels stands in

sharp contrast to EPA's approach to a similar issue in another, contemporaneous rulemaking, the

proposed revision of the Renewable Fuel Standard program ("RFS2"). 74 Fed. Reg. 24904 (May

26, 2009). In the preamble to the proposed RFS2, "EPA invites comment on whether the

definition of 'renewable biomass' should be interpreted as including or excluding MSW." Id. at

24922. The preamble goes on to note that "more than 60% by weight ofMSW is biomass that

could be used to make ethanol and other renewable fuels." Id. EPA discusses the policy

consequences of treating MSW as renewable or non-renewable and seeks public input to its

decision. Id. at 24922-23. It is, therefore, inexplicable that EPA would unilaterally and silently

reclassify MSW as fossil fuel in the GHG reporting rule, while at the same time openly seeking

comment on whether to classify MSW as renewable (i.e., non-fossil) fuel under the RFS2.

7

prescribed by both the Administrative Procedure Act, 5 U.S.C. § 500 et seq., and, more

particularly, by the more rigorous requirements ofCAA section 307(d)(3), 42 U.S.C. §

7607(d)(3).

In the present case, EPA's reclassification ofMSW and redefinition of "fossil fuel"

clearly violate the "logical outgrowth" principle because EPA provided no notice whatsoever,

either of the nature of the definitional changes or of the possibility that it would make such

changes at alL. As a result, the changes were completely unforeseeable. Moreover, even the

change vacated in Small Refiner Lead Phase-Down Task Force had the virtue of an explanation,

which the cour found to be reasonable but not a cure for the lack of notice. By contrast, EPA

has offered no explanation at all for the changes that reclassify MSW as fossil fuel, and, as

discussed below, the changes are unreasonable.

The reclassification ofMSW, tires and other consumer products as fossil fuels stands in

sharp contrast to EPA's approach to a similar issue in another, contemporaneous rulemaking, the

proposed revision of the Renewable Fuel Standard program ("RFS2"). 74 Fed. Reg. 24904 (May

26, 2009). In the preamble to the proposed RFS2, "EPA invites comment on whether the

definition of 'renewable biomass' should be interpreted as including or excluding MSW." Jd at

24922. The preamble goes on to note that "more than 60% by weight ofMSW is biomass that

could be used to make ethanol and other renewable fuels." Jd EPA discusses the policy

consequences of treating MSW as renewable or non-renewable and seeks public input to its

decision. Jd at 24922-23. It is, therefore, inexplicable that EPA would unilaterally and silently

reclassify MSW as fossil fuel in the GHG reporting rule, while at the same time openly seeking

comment on whether to classify MSW as renewable (i.e., non-fossil) fuel under the RFS2.

7
2. The Distinction Between Municipal Solid Waste and Fossil Fuel Is Essential to

Established Determinations That Are Crucial to the Status of Municipal Waste

Combustors Under Other Clean Air Act Programs

The Final Rule cannot truly be intended to reclassify MSW as a "fossil fuel-derived fuel"

or reclassify MWCs as "fossil fuel-fired" because to do so would undermine established CAA

regulations for MWCs and other solid waste incinerators. Most importantly, both the Acid Rain

Program and CAIR exempt "solid waste incineration units" from their requirements. 42 U.S.C. §

7429(h)(4); 40 C.F.R. § 96.104(b)(2). In each case the exemption applies only to units that

annually combust less than 20 percent fossil fuel. E.g., 40 C.F.R. § 96.1 04(b )(2)(ii) (exempting

from the CAIR program NO[x] requirements solid waste incineration units with "an average

annual fuel consumption of non-fossil fuel ... exceeding 80 percent (on a Btu basis)"). IfMSW

were deemed to be fossil fuel then no MWC could ever qualify for the exemption: i.e., the

burning of municipal solid waste would, in and of itself, render MWCs ineligible for the solid

waste exemption, and this cannot be EPA's intention.6

In the unlikely event that EPA actually intended to classify MSW as fossil fuel or

reclassify MWCs as "fossil fuel-fired" and thereby eliminate MSW from the "solid waste

incineration unit" exemption, the action would exceed EPA's authority as it would directly

conflict with unambiguous language of the CAA. In Natural Resources Defense Council v. EPA,

the D.C. Circuit vacated a rule in which EPA had attempted to limit the definition of "solid waste

incineration unit" to only those units that do not "recoverl] thermal energy from the combustion

for a useful purpose." 489 F.3d 1250, 1256 (D.C. Cir. 2007) (citing 40 C.F:R. § 60.2265). Units

6 Indeed, EPA created the CAIR exemption through a rulemaking in which it recognized

the importance of exempting MWCs. See 71 Fed. Reg. 25328, 25333 (Apr. 28,2006). Thus

EPA recently considered this question on the record and reasoned in favor of applying the

statutory solid waste incinerator exemption from the Acid Rain Program to CAIR.

8

2. The Distinction Between Municipal Solid Waste and Fossil Fuel Is Essential to

Established Determinations That Are Crucial to the Status of Municipal Waste

Combustors Under Other Clean Air Act Programs

The Final Rule canot truly be intended to reclassify MSW as a "fossil fuel-derived fuel"

or reclassify MWCs as "fossil fuel-fired" because to do so would undermine established CAA

regulations for MWCs and other solid waste incinerators. Most importantly, both the Acid Rain

Program and CAIR exempt "solid waste incineration units" from their requirements. 42 U.S.C. §

7429(h)(4); 40 C.F.R. § 96.104(b)(2). In each case the exemption applies only to units that

annually combust less than 20 percent fossil fueL. E.g., 40 C.F.R. § 96.1 04(b )(2)(ii) (exempting

from the CAIR program NO(x) requirements solid waste incineration units with "an average

annual fuel consumption of non-fossil fuel. . . exceeding 80 percent (on a Btu basis)"). IfMSW

were deemed to be fossil fuel then no MWC could ever qualify for the exemption: i.e., the

burning of municipal solid waste would, in and of itself, render MWCs ineligible for the solid

waste exemption, and this cannot be EPA's intention.6

In the unlikely event that EPA actually intended to classify MSW as fossil fuel or

reclassify MWCs as "fossil fuel-fired" and thereby eliminate MSW from the "solid waste

incineration unit" exemption, the action would exceed EPA's authority as it would directly

conflct with unambiguous language of the CAA. In Natural Resources Defense Council v. EPA,

the D.C. Circuit vacated a rule in which EPA had attempted to limit the definition of "solid waste

incineration unit" to only those units that do not "recover() thermal energy from the combustion

for a useful purpose." 489 F.3d 1250, 1256 (D.C. Cir. 2007) (citing 40 C.F:R. § 60.2265). Units

6 Indeed, EPA created the CAIR exemption through a rulemaking in which it recognized

the importance of exempting MWCs. See 71 Fed. Reg. 25328, 25333 (Apr. 28,2006). Thus

EPA recently considered this question on the record and reasoned in favor of applying the

statutory solid waste incinerator exemption from the Acid Rain Program to CAIR.

8
that recover the heat for electricity generation or other purposes would thereby be subject to the

rules for boilers instead of the incinerator rules. EPA argued that ambiguity in the statute

allowed it the discretion to refine the definition. ld. at 1258. The statutory definition provides

four express exclusions, which the court found to represent a conscious choice by Congress as to

which units would be boilers and which would be incinerators. ld. at 1260. In vacating and

remanding the rule, the court rejected EPA's interpretation and held that "the statutory definition

of 'solid waste incineration unit' is clear and unambiguous as written" and that EPA lacked the

authority to expand or reduce the list of exclusions. ld. at 1258.

The distinction between MSW and fossil fuels is maintained elsewhere in the CAA

regulatory structure as well. For example, the New Source Performance Standards ("NSPS") for

MWCs provide that the "start-up period," during which the standards do not apply, "commences

when the affected facility begins the continuous burning ofMSW and does not include any

warm-up period when the affected facility is combusting only afossil fuel or other non-MSW

fuel and no MSW is being combusted." 40 C.F.R. § 60.58a(a)(l)(i) (emphasis added). This

distinction between warm-up and start-up periods relies upon a complete definitional separation

between "fossil fuel" and MSW: the two must be non-overlapping categories for this provision

to have any logical meaning. The NSPS regulations clarify the distinction between fossil fuel

and MSW by defining "fossil fuel" as including materials derived from petroleum "for the

purpose of creating useful heat." ld. §§ 60.41, 60.41Da, 60.161.

9

that recover the heat for electricity generation or other purposes would thereby be subject to the

rules for boilers instead of the incinerator rules. EPA argued that ambiguity in the statute

allowed it the discretion to refine the definition. ¡d. at 1258. The statutory definition provides

four express exclusions, which the court found to represent a conscious choice by Congress as to

which units would be boilers and which would be incinerators. ¡d. at 1260. In vacating and

remanding the rule, the court rej ected EPA's interpretation and held that "the statutory definition

of'solid waste incineration unit' is clear and unambiguous as written" and that EPA lacked the

authority to expand or reduce the list of exclusions. ¡d. at 1258.

The distinction between MSW and fossil fuels is maintained elsewhere in the CAA

regulatory structure as well. For example, the New Source Performance Standards ("NSPS") for

MWCs provide that the "start-up period," during which the standards do not apply, "commences

when the affected facility begins the continuous burning ofMSW and does not include any

war-up period when the affected facilty is combusting only afossil fuel or other non-MSW

fuel and no MSW is being combusted." 40 C.F.R. § 60.58a(a)(l)(i) (emphasis added). This

distinction between warm-up and start-up periods relies upon a complete definitional separation

between "fossil fuel" and MSW: the two must be non-overlapping categories for this provision

to have any logical meaning. The NSPS regulations clarify the distinction between fossil fuel

and MSW by defining "fossil fuel" as including materials denved from petroleum "for the

purpose of creating useful heat." ¡d. §§ 60.41, 60.41Da, 60.161.

9
3. Under Existing Definitions and Determinations, Tires and Other Consumer Products Are

Not "Fossil Fuel," and They Should Not Be Designated as "Fossil Fuel-Derived Fuels"

Because of the Potential Harm to the Status of Municipal Waste Combustors Under Other

Clean Air Act Programs

Where the Proposed Rule had defined "fossil fuel" as in the NSPS regulations, as

including petroleum derivatives limited to "the purpose of creating useful heat," the Final Rule

dramatically expands the definition to include "for example, consumer products that are derived

from [fossil fuels] and are combusted." 40 C.F.R. § 98.6; 74 Fed. Reg. at 56387. Table C-l in

the Final Rule also reclassified tires as "fossil fuel-derived fuels." These changes are highly

problematic because they are inconsistent with EPA pronouncements that tires are not fossil fuel,

and because they potentially undermine the definition of MSW as distinct from fossil fuels even

though many materials in MSW are consumer products that ultimately are derived in part from

petroleum.

Although most tires contain some quantity of synthetic rubber, which is partially derived

from petroleum, EPA has determined that tires are not fossil fuel. See, e.g., Letter from K.

Lepic, Technical Advisor, EPA Region 10, to P. Bosserman, ACQD, Oregon DEQ (July 9, 1975)

(Control No. D044) ("While a tire may indeed be manufactured from a petroleum derivative, the

tire is not characterized as a fossil fuel because it was not manufactured for the purpose of

providing useful heat."). This determination accords with common sense and the plain meaning

of fossil fuel, which does not readily accommodate tires. See, e.g., Merriam-Webster's Online

Dictionary, Fossil Fuel- Definition, available at http://www.merriamwebster.com/dictionary/fossil%20fuel ("a fuel (as coal, oil, or natural gas) formed in the earth

from plant or animal remains").

10

3. Under Existing Definitions and Determinations, Tires and Other Consumer Products Are

Not "Fossil FueL," and They Should Not Be Designated as "Fossil Fuel-Derived Fuels"

Because of the Potential Harm to the Status of Municipal Waste Combustors Under Other

Clean Air Act Programs

Where the Proposed Rule had defined "fossil fuel" as in the NSPS regulations, as

including petroleum derivatives limited to "the purpose of creating useful heat," the Final Rule

dramatically expands the definition to include "for example, consumer products that are derived

from (fossil fuels) and are combusted." 40 C.F.R. § 98.6; 74 Fed. Reg. at 56387. Table C-L in

the Final Rule also reclassified tires as "fossil fuel-derived fuels." These changes are highly

problematic because they are inconsistent with EPA pronouncements that tires are not fossil fuel,

and because they potentially undermine the definition of MSW as distinct from fossil fuels even

though many materials in MSW are consumer products that ultimately are derived in part from

petroleum.

Although most tires contain some quantity of synthetic rubber, which is parially derived

from petroleum, EPA has determined that tires are not fossil fueL. See, e.g., Letter from K.

Lepic, Technical Advisor, EPA Region i 0, to P. Bosserman, ACQD, Oregon DEQ (July 9, 1975)

(Control No. D044) ("While a tire may indeed be manufactured from a petroleum denvative, the

tire is not characterized as a fossil fuel because it was not manufactured for the purose of

providing useful heat."). This determination accords with common sense and the plain meaning

of fossil fuel, which does not readily accommodate tires. See, e.g., Merriam-Webster's Online

Dictionary, Fossil Fuel- Definition, available at http://ww.merriamwebster.com/dictionary/fossil%20fuel ("a fuel (as coal, oil, or natural gas) formed in the earth

from plant or animal remains").

10
The CAA and several of its regulations include either tires, rubber or plastic in definitions

of "solid waste," "municipal waste" or MSW. Under the NSPS for solid waste combustion, for

example, "[tjhe term 'municipal waste' means refuse (and refuse-derived fuel) collected from the

general public and from residential, commercial, institutional, and industrial sources consisting

of paper, wood, yard wastes, food wastes,plastics, leather, rubber, and other combustible

materials and non-combustible materials .... " 42 U.S.C. § 7429(g)(S) (emphasis added). The

NSPS rules for solid waste combustors define "municipal solid waste" as "[h [ousehold,

commercial/retail, and institutional wastes includjing] (1) Yard waste; (2) Refuse-derived fuel;

and (3) Motor vehicle maintenance materials limited to vehicle batteries and tires .... " 40

C.F.R. § 60.S1a; id. § 60.51b. In its technical support documents for CAIR, EPA also indicated

that tires and tire-derived fuels are not fossil fuels. Office of Air and Remediation, EPA,

Technical Support Document for the Clean Air Interstate Rule Notice of Final Rulemaking:

Regional and State S02 and NOx Emissions Budgets, EPA-HQ-OAR 2003-00S3 at 23-24, Table

A-3: EIA Database Fuel Codes and Categories (March 200S) (classifying various fuels as either

fossil or non-fossil), available at http://epa.gov/CAIR/pdfs/finaltech06.pdf.

The reclassification of tires, consumer plastics and other combustible solid waste

materials derived in part from petroleum feed stocks potentially undermines the exemption of

"solid waste incineration units" from CAIR and the Acid Rain Program. If tires, for example,

were deemed to be "fossil fuel" based on the small quantity of petroleum-derived constituents in

synthetic rubber, the logical result would be an exceedingly complex line-drawing exercise with

respect to the innumerable other products that also count petroleum derivatives among any of

their constituent materials. The list of petroleum-based compounds used in manufacturing is

long, and includes a wide variety of plastics and synthetic fibers, which would thereby extend the

11

The CAA and several of its regulations include either tires, rubber or plastic in definitions

of "solid waste," "'municipal waste" or MSW. Under the NSPS for solid waste combustion, for

example, "(tJhe term 'municipal waste' means refuse (and refuse-derived fuel) collected from the

general public and from residential, commercial, institutional, and industrial sources consisting

of paper, wood, yard wastes, food wastes, plastics, leather, rubber, and other combustible

materials and non-combustible materials. . . ." 42 U.S.C. § 7429(g)(5) (emphasis added). The

NSPS rules for solid waste combustors define "municipal solid waste" as "(h )ousehold,

commercial/retail, and institutional wastes includ(ing) (l) Yard waste; (2) Refuse-derived fuel;

and (3) Motor vehicle maintenance materials limited to vehicle batteries and tires. . . ." 40

C.F.R. § 60.51a; id § 60.51b. In its technical support documents for CAIR, EPA also indicated

that tires and tire-derived fuels are not fossil fuels. Office of Air and Remediation, EPA,

Technical Support Document for the Clean Air Interstate Rule Notice of Final Rulemaking:

Regional and State S02 and NOx Emissions Budgets, EPA-HQ-OAR 2003-0053 at 23-24, Table

A-3: EIA Database Fuel Codes and Categories (March 2005) (classifying various fuels as either

fossil or non-fossil), available at http://epa.gov/CAIRlpdfs/finaltech06.pdf.

The reclassification of tires, consumer plastics and other combustible solid waste

materials derived in part from petroleum feed stocks potentially undermines the exemption of

"solid waste incineration units" from CAIR and the Acid Rain Program. If tires, for example,

were deemed to be "fossil fuel" based on the small quantity of petroleum-derived constituents in

synthetic rubber, the logical result would be an exceedingly complex line-drawing exercise with

respect to the innumerable other products that also count petroleum derivatives among any of

their constituent materials. The list of petroleum-based compounds used in manufacturing is

long, and includes a wide variety of plastics and synthetic fibers, which would thereby extend the

11
potential reach of "fossil fuel" to include soda bottles, packaging, toys, clothing, appliances, etc.

- in short, "fossil fuel" would include some items in most categories of consumer products. A

large proportion ofMSW could thereby be subject to classification as fossil fuel, such that most,

if not all, MWCs would no longer meet the 80% non-fossil fuel requirement.

* * *

In sum, as discussed above, reclassifying MSW or tires as "fossil fuel-derived fuels" and

including consumer plastics and other petroleum-derived MSW materials could have the

potential to undermine the exemption of "solid waste incinerator units" from CAIR and the Acid

Rain Program. This would be an extraordinary outcome to arise from these revisions,

unannounced, unexplained and undertaken without notice or the opportunity to comment. ERC

believes for all these reasons that these changes were erroneous and respectfully requests that

EPA correct them by restoring both the proposed definition of "fossil fuel" and the more

appropriate subheading "alternative fuels" to encompass MSW and tires through a technical

correction or direct final rule. Such a technical correction would have no impact on the reported

GHG emissions from MWCs in light of the requirement that MWCs must apportion total CO2

emissions into biogenic and non-biogenic fractions based on ASTM D-6866 analysis. The same

quantities of biogenic and non-biogenic C02 emissions will be reported regardless of how the

fuels are labeled.

12

potential reach of "fossil fuel" to include soda bottles, packaging, toys, clothing, appliances, etc.

- in short, "fossil fuel" would include some items in most categories of consumer products. A

large proportion ofMSW could thereby be subject to classification as fossil fuel, such that most,

if not all, MWCs would no longer meet the 80% non-fossil fuel requirement.

* * *

In sum, as discussed above, reclassifying MSW or tires as "fossil fuel-derived fuels" and

including consumer plastics and other petroleum-derived MSW materials could have the

potential to undermine the exemption of "solid waste incinerator units" from CAIR and the Acid

Rain Program. This would be an extraordinary outcome to arise from these revisions,

unannounced, unexplained and undertaken without notice or the opportunity to comment. ERC

believes for all these reasons that these changes were erroneous and respectfully requests that

EPA correct them by restoring both the proposed definition of "fossil fuel" and the more

appropriate subheading "alternative fuels" to encompass MSW and tires through a technical

correction or direct final rule. Such a technical correction would have no impact on the reported

GHG emissions from MWCs in light of the requirement that MWCs must apportion total COz

emissions into biogenic and non-biogenic fractions based on ASTM D-6866 analysis. The same

quantities of biogenic and non-biogenic COz emissions wil be reported regardless of how the

fuels are labeled.

12
B. EPA's Explanation for Requiring Costly Tier 4 Monitoring at the Low Threshold of

250 Tons MSW/day Has No Logical Basis in the Stated Purposes of the Proposed

Rule, Which Renders the Notice and Comment Process Meaningless for this

Provision

The Proposed Rule would have required all MWCs with a maximum rated input capacity

greater than 250 tons MSW/day to use the Tier 4 calculation methodology. 74 Fed. Reg. at

16634 (proposed 40 C.F.R. § 98.33(b)(5)(ii». ERC submitted comments arguing for the

substitution of a different calculation methodology for MWCs, and arguing against the 250 tons

MSW/day threshold. Two ERC members, Covanta and Waste Management, submitted their

own comments on this and other aspects of the Proposed Rule.7 By imposing Tier 4 on all

MWCs that exceed 250 tons MSW/day, the Rule would require many facilities to install

expensive new monitoring equipment, but would achieve very little improvement in the accuracy

of data reported. Moreover, the proposed requirement would place a disproportionate burden on

a class of facilities that contribute only a very small quantity of GHG emissions. ERC suggested

as an alternative to Tier 4, the use of a modified Tier 2 methodology that would provide data of

comparable accuracy, but instead use the existing Part 60 monitoring equipment and mass

emission rate calculation methodologies consistent with Title V permits, state annual emission

inventory requirements, and all current GHG reporting protocols."

7 The three sets of comments, incorporated by reference, received the following EPA

document control numbers: Covanta Energy Corporation, EPA-HQ-OAR-2008-0508-0548;

ERC, EPA-HQ-OAR-2008-0508-0544; Waste Management, EPA-HQ-OAR-2008-0508-0376.

8 As proposed in comments submitted by ERC and Waste Management, a "modified Tier

2 methodology would utilize multiple stack results over several days as follows:

@ Calculate facility average C02 concentration (%), stack gas flow rate (DSCF/Hour)

and boiler load or steam production (Klbslhour).

@ Calculate a Stack Flow to Load Ratio (SFLR) or DSCF IHr per Klbs/hr steam

production. The SFLR is analogous to the proposed Tier 2 "B" design heat input to

(Continued ... )

13

B. EPA's Explanation for Requiring Costly Tier 4 Monitoring at the Low Threshold of

250 Tons MSW/day Has No Logical Basis in the Stated Purposes ofthe Proposed

Rule, Which Renders the Notice and Comment Process Meaningless for this

Provision

The Proposed Rule would have required all MWCs with a maximum rated input capacity

greater than 250 tons MSW/day to use the Tier 4 calculation methodology. 74 Fed. Reg. at

16634 (proposed 40 C.F.R. § 98.33(b)(5)(ii)). ERC submitted comments arguing for the

substitution of a different calculation methodology for MWCs, and arguing against the 250 tons

MSW/day threshold. Two ERC members, Covanta and Waste Management, submitted their

own comments on this and other aspects of the Proposed Rule.7 By imposing Tier 4 on all

MWCs that exceed 250 tons MSW/day, the Rule would require many facilties to install

expensive new monitoring equipment, but would achieve very little improvement in the accuracy

of data reported. Moreover, the proposed requirement would place a disproportionate burden on

a class of facilties that contribute only a very small quantity ofGHG emissions. ERC suggested

as an alternative to Tier 4, the use of a modified Tier 2 methodology that would provide data of

comparable accuracy, but instead use the existing Part 60 monitoring equipment and mass

emission rate calculation methodologies consistent with Title V permits, state annual emission

inventory requirements, and all current GHG reporting protocols.8

7 The three sets of comments, incorporated by reference, received the following EPA

document control numbers: Covanta Energy Corporation, EPA-HQ-OAR-2008-0508-0548;

ERC, EPA-HQ-OAR-2008-0508-0544; Waste Management, EPA-HQ-OAR-2008-0508-0376.

8 As proposed in comments submitted by ERC and Waste Management, a "modified Tier

2 methodology would utilize multiple stack results over several days as follows:

@ Calculate facilty average COz concentration (%), stack gas flow rate (DSCF/Hour)

and boiler load or steam production (Klbs/hour).

@ Calculate a Stack Flow to Load Ratio (SFLR) or DSCF IHr per Klbs/hr steam

production. The SFLR is analogous to the proposed Tier 2 "B" design heat input to

(Continued ...)

13
ERC noted that the Tier 4 methodology required under the Proposed Rule was similar to

the method initially proposed for the Western Climate Initiative's ("WCI") Mandatory Reporting

Requirements. After considering comments on its proposal, WCI concluded that the burden of

installing new equipment was not justified and changed its proposal to allow MWCs to use Tier

2 calculation methodologies. Likewise, the Department of Energy's ("DOE") 1605(b) Voluntary

Reporting program allows the use of the similar "A-Rated Measurement and Estimation

Method." This includes the use of emission factors based on regularly repeated direct

measurements of C02 emissions, combined with measured source activity data, such as the

amount of waste processed or steam produced. WCI also concluded that such methods would

produce accurate data.

ERC noted that the projected costs for one of its members to install the equipment

necessary to meet the Tier 4 monitoring requirement would amount to an estimated $4.5

million," but that it expected the annual emissions calculated and reported with the use of the

new Tier 4 equipment would not be significantly more accurate than those it would report using

Tier 2 or a modified Tier 2 methodology. According to EPA's Inventory of us. Greenhouse

Gas Emissions and Sinks: 1990-2007, MWCs account for only 0.34% of C02e emissions from

all Energy Related Activities. Within the Stationary Fuel Combustion Source category, MWCs

(Continued ... )

steam ratio used in Equation C-2b, but could be considered more representative since

it is based on actual test data.

@I Obtain biogenic/non-biogenic CO2 fractions using ASTM Methods D 7459 and D

6866-06a from integrated gas samples collected during stack testing.

@! Use CO2 concentration, total steam production and SFLR to calculate MWC unit and

facility wide annual CO2 emissions.

9 In discussions with EPA subsequent to the publication of the Final Rule, representatives

of ERC member Covanta added that the costs of installing the equipment required for Tier 4 at

Covanta's facilities have been estimated at $6 million.

14

ERC noted that the Tier 4 methodology required under the Proposed Rule was similar to

the method initially proposed for the Western Climate Initiative's ("WCI") Mandatory Reporting

Requirements. After considering comments on its proposal, WCI concluded that the burden of

installng new equipment was not justified and changed its proposal to allow MWCs to use Tier

2 calculation methodologies. Likewise, the Department of Energy's ("DOE") l605(b) Voluntary

Reporting program allows the use of the similar "A-Rated Measurement and Estimation

Method." This includes the use of emission factors based on regularly repeated direct

measurements of COz emissions, combined with measured source activity data, such as the

amount of waste processed or steam produced. WCI also concluded that such methods would

produce accurate data.

ERC noted that the projected costs for one of its members to install the equipment

necessary to meet the Tier 4 monitoring requirement would amount to an estimated $4.5

milion,9 but that it expected the annual emissions calculated and reported with the use of the

new Tier 4 equipment would not be significantly more accurate than those it would report using

Tier 2 or a modified Tier 2 methodology. According to EPA's Inventory of us. Greenhouse

Gas Emissions and Sinks: 1990-2007, MWCs account for only 0.34% of COze emissions from

all Energy Related Activities. Within the Stationary Fuel Combustion Source category, MWCs

(Continued ...)

steam ratio used in Equation C-2b, but could be considered more representative since

it is based on actual test data.

@¡ Obtain biogenic/non-biogenic COz fractions using ASTM Methods D 7459 and D

6866-6a from integrated gas samples collected during stack testing.

@! Use COz concentration, total steam production and SFLR to calculate MWC unit and

facilty wide annual COz emissions.

9 In discussions with EPA subsequent to the publication of the Final Rule, representatives

of ERC member Covanta added that the costs of installng the equipment required for Tier 4 at

Covanta's facilties have been estimated at $6 milion.

14
contribute 0.55% of CO2 emissions. The burden that the Proposed Rule would impose on

MWCs was therefore disproportionate both in terms of any gains in accuracy and in terms of its

contribution to GHG emissions. The largest potential variable in annual MWC CO2 emissions is

not total C02 (carbon content in solid waste varies very little year to year, see, e.g., EPA, Method

19, available at www.e~gov/ttnemcO lIarchpromlm-19 .illLf) but instead the relative proportions

of biogenic and non-biogenic CO2. These proportions will be determined based on quarterly

sampling and ASTM D-6866 analysis.

ERC objected in particular to the Proposed Rule's use of250 tons MSW/day maximum

rated input capacity as a criterion for compulsory use of Tier 4 methodology because it is

inequitable relative to the significantly higher threshold that applies to other stationary

combustion sources (primarily coal-, oil- and natural gas-fired units) for which the Tier 4

threshold is 250 mmBtu/hr maximum rated heat input capacity. By way of comparison, an oilfired unit rated at 250 mmBtu!hr could emit 18,275 kg C02/hrlO and be allowed to use Tier 2

methodology, whereas an MWC rated at just over 250 tons MSW/day would emit only 3,331 kg

C02/hr,11 and yet be required to use Tier 4 methodology. As this example illustrates, under the

Final Rule, MWCs are uniquely subjected to a much lower Tier 4 threshold than other sources:

relative to a fossil fuel-fired boiler at 250 mmBtu/hr,an MWC at 250 tons MSW/day would have

40% of the heat input capacity and 18-25% of the CO2 emissicns.v' but the Final Rule would

10250 mmBtu/hr x 73.1 kg CO2/mmBtu = 18,275 kg CO2/hr.

11250 tons/day = 104 mmBtu/hr at 5000 Btu/lb (national average): 104 mmBtu/hr x 90.6

kg C02/mmBtu = 9,442 kg C02/hr x 0.35 (approximate average proportion of CO2 that is nonbiogenic) = 3,331 kg C02/hr.

12The 250 tons MSW/day threshold for MWCs is effectively 104 mmBtu/hr whereas the

limit for all other sources is 250 mmBtu/hr: so the MWC limit is approximately 40% of the

general limit. The CO2 emissions for facilities at these levels are approximately 18,725 kg

(Continued ... )

15

contribute 0.55% of COz emissions. The burden that the Proposed Rule would impose on

MWCs was therefore disproportionate both in terms of any gains in accuracy and in terms of its

contribution to GHG emissions. The largest potential variable in annual MWC COz emissions is

not total COz (carbon content in solid waste varies very little year to year, see, e.g., EPA, Method

19, available at ww.ep.gov/ttnemc01/archpromlm-19.llf) but instead the relative proportions

of biogenic and non-biogenic COz. These proportions wil be determined based on quarterly

sampling and ASTM D-6866 analysis.

ERC objected in particular to the Proposed Rule's use of250 tons MSW/day maximum

rated input capacity as a criterion for compulsory use of Tier 4 methodology because it is

inequitable relative to the significantly higher threshold that applies to other stationary

combustion sources (primarily coal-, oil- and natural gas-fired units) for which the Tier 4

threshold is 250 mmBtulhr maximum rated heat input capacity. By way of comparison, an oilfired unit rated at 250 mmBtu/ could emit 18,275 kg COz/hrlO and be allowed to use Tier 2

methodology, whereas an MWC rated at just over 250 tons MSW/day would emit only 3,331 kg

COZ/hr,11 and yet be required to use Tier 4 methodology. As this example ilustrates, under the

Final Rule, MWCs are uniquely subjected to a much lower Tier 4 threshold than other sources:

relative to a fossil fuel-fired boiler at 250 mmBtulhr,an MWC at 250 tons MSW/day would have

40% of the heat input capacity and 18-25% of the COz emissions,lz but the Final Rule would

10250 mmBtulhr x 73.1 kg COz/mmBtu = 18,275 kg COz/hr.

11250 tons/day = 104 mmBtulhr at 5000 Btullb (national average): 104 mmBtulhr x 90.6

kg COz/mmBtu = 9,442 kg COz/hr x 0.35 (approximate average proportion ofCOz that is nonbiogenic) = 3,331 kg COz/h.

lz The 250 tons MSW/day threshold for MWCs is effectively 104 mmBtulhr whereas the

limit for all other sources is 250 mmBtulhr: so the MWC limit is approximately 40% of the

general limit. The COz emissions for facilties at these levels are approximately 18,725 kg

(Continued ...)

15
treat the two thresholds as equivalent when determining the regulatory burden that each facility

should bear. In light of the disparity, ERC proposed that if EPA were to retain a Tier 4

requirement for MWCs, the applicable threshold should be based on CO2 emissions equivalent to

the 250 mmBtu/hr threshold that applies to other sources in the Stationary Combustion Source

category. In its comments, ERC proposed that a natural gas-fired unit would provide an

appropriate benchmark: 13,255 kg non-biogenic CO2/hr.l3 This alternative would equalize the

regulatory burden relative to the emissions-monitoring purposes of the GHG Reporting Rule.

When it issued the Final Rule and published its responses to comments, EPA excerpted

the principal arguments advanced by ERC and its members, but did not engage them. Instead,

EPA retained the requirements and thresholds as originally proposed and offered the following

justification: "EPA believes that it is appropriate to require the use of [Tier 4 equipment] on the

largest MSW combustion sources." Mandatory Greenhouse Gas Reporting Rule: EPA's

Response to Public Comments, Subpart C - General Stationary Fuel Combustion Sources, at 106

(response to Comment EPA-HQ-OAR-2008-0508-0376.1, excerpt 6) (emphasis added); see also

id. at 165 ("EPA believes that it is appropriate ... ") (emphasis added); id. at 167 ("EPA believes

that it is appropriate ... ") (emphasis added). Other than reiterating its belief in the

appropriateness of its proposal, EPA explained its decision as follows: "Both the 250 mmBtu/hr

and 250 tons MSW/day are size determinations for considering large sources in other EPA

(Continued ... )

CO2/hr for an oil-fired boiler and 3,331 kg CO2/hr for an MWC: the MWC emissions are

approximately 18%. Other types of boilers have lower CO2 emissions than oil: e.g., natural gas

at 250 mmBtu/hr would be 13,255 kg CO2/hr. The MWC figure of3,331 is 25% of 13,255.

13 Expressed in terms of non-biogenic C02 emissions, the generally applicable 250

mmBtu/h threshold is approximately four times the current MWC threshold of250 tons

MSW/day.

16

treat the two thresholds as equivalent when determining the regulatory burden that each facility

should bear. In light of the disparity, ERC proposed that if EPA were to retain a Tier 4

requirement for MWCs, the applicable threshold should be based on COz emissions equivalent to

the 250 mmBtulhr threshold that applies to other sources in the Stationary Combustion Source

category. In its comments, ERC proposed that a natural gas-fired unit would provide an

appropriate benchmark: 13,255 kg non-biogenic COz/hr.13 This alternative would equalize the

regulatory burden relative to the emissions-monitoring purposes of the GHG Reporting Rule.

When it issued the Final Rule and published its responses to comments, EPA excerpted

the principal arguments advanced by ERC and its members, but did not engage them. Instead,

EPA retained the requirements and thresholds as originally proposed and offered the following

justification: "EPA believes that it is appropnate to require the use of (Tier 4 equipment) on the

largest MSW combustion sources." Mandatory Greenhouse Gas Reporting Rule: EPA's

Response to Public Comments, Subpar C - General Stationary Fuel Combustion Sources, at 106

(response to Comment EPA-HQ-OAR-2008-0508-0376.1, excerpt 6) (emphasis added); see also

id at 165 ("EPA believes that it is appropriate. . .") (emphasis added); id. at 167 ("EPA believes

that it is appropriate. . .") (emphasis added). Other than reiterating its belief in the

appropriateness of its proposal, EPA explained its decision as follows: "Both the 250 mmBtulhr

and 250 tons MSW/day are size determinations for considering large sources in other EPA

(Continued... )

COz/hr for an oil-fired boiler and 3,331 kg COz/hr for an MWC: the MWC emissions are

approximately 18%. Other types of boilers have lower COz emissions than oil: e.g., natural gas

at 250 mmtu would be 13,255 kg COz/hr. The MWC figure of3,331 is 25% of 13,255.

13 Expressed in terms of non-biogenic COz emissions, the generally applicable 250

mmBtulh threshold is approximately four times the curent MWC threshold of250 tons

MSW/day.

16
programs. These size determinations were not considered to be directly comparable, but rather

to reflect consistency with other EPA programs, particularly where the challenge of monitoring

is substantially different, as it is for MSW versus more homogenous fossil fuels." Id. at 148

(response to Comment EPA-HQ-OAR-2008-0508-0544.l, excerpt 4) (emphasis added) (internal

citations omitted). 14

ERC disagrees with EPA's conclusion that the 250 tons MSW/day threshold maintains

consistency with other EPA programs. It is true that EPA selected this figure from an existing

program (referring specifically to 40 C.F.R. Part 60, Subparts Ea, Eb, Cb: the NSPS for large

MWCs), but EPA has not explained how the 250 tons MSW /day threshold is relevant to

monitoring ofGHG emissions. This omission in EPA's rationale is striking as the GHG

monitoring requirements of the Reporting Rule far exceed the monitoring requirements of the

NSPS program that EPA cited as the basis for the threshold.

To opt instead for either a "Tier 2-like" methodology or a threshold equivalent to the

actual non-biogenic CO2 emissions equal to the 250 mmBtu/hr threshold for fossil fuel-fired

units would be consistent with numerous programs and principles that EPA endorses, as

discussed below. Moreover, at times EPA itself has indicated its agreement that the 250 tons

MSW/day threshold is inequitable and unnecessary for the accuracy of data reported. ERC

argued in its comments on the Proposed Rule for the general replacement of Tier 4 with a

modified Tier 2 methodology. However, if EPA is to maintain a general Tier 4 requirement for

stationary fuel combustion sources, this petition requests that EPA adopt an alternative that is

equitable and consistent with the purpose of the GHG Reporting Rule: to delete the alternative

14 EPA had noted in the technical support document for General Stationary Fuel

Combustion Sources that 40 C.F.R. Part 60 employs 250 tons MSW/day as the threshold for an

MWC to be considered a "large MWC."

17

programs. These size determinations were not considered to be directly comparable, but rather

to reflect consistency with other EPA programs, particularly where the challenge of monitonng

is substantially different, as it is for MSW versus more homogenous fossil fuels." ¡d. at 148

(response to Comment EPA-HQ-OAR-2008-0508-0544.1, excerpt 4) (emphasis added) (internal

citations omitted). 

14

ERC disagrees with EPA's conclusion that the 250 tons MSW/day threshold maintains

consistency with other EPA programs. It is true that EPA selected this figure from an existing

program (referring specifically to 40 C.F.R. Part 60, Subparts Ea, Eb, Cb: the NSPS for large

MWCs), but EPA has not explained how the 250 tons MSW /day threshold is relevant to

monitoring ofGHG emissions. This omission in EPA's rationale is striking as the GHG

monitoring requirements of the Reporting Rule far exceed the monitoring requirements of the

NSPS program that EPA cited as the basis for the threshold.

To opt instead for either a "Tier 2-like" methodology or a threshold equivalent to the

actual non-biogenic COz emissions equal to the 250 mmBtulhr threshold for fossil fuel-fired

units would be consistent with numerous programs and principles that EPA endorses, as

discussed below. Moreover, at times EPA itself has indicated its agreement that the 250 tons

MSW/day threshold is inequitable and unnecessary for the accuracy of data reported. ERC

argued in its comments on the Proposed Rule for the general replacement of Tier 4 with a

modified Tier 2 methodology. However, if EP A is to maintain a general Tier 4 requirement for

stationar fuel combustion sources, this petition requests that EPA adopt an alternative that is

equitable and consistent with the purose of the GHG Reporting Rule: to delete the alternative

14 EPA had noted in the technical support document for General Stationary Fuel

Combustion Sources that 40 C.F.R. Part 60 employs 250 tons MSW/day as the threshold for an

MWC to be considered a "large MWC."

17
threshold of250 tons MSW/day and instead harmonize the Tier 4 threshold for MWCs with

those that apply to the other sources in its class, based on the equivalent non-biogenic C02

emissions.

1. The Rationale of "Consistency with Other EPA Programs" Is Unpersuasive Because It

Does Not Support the Broad Requirement of Costly Tier 4 Monitoring for Municipal

Waste Combustors, but Instead Favors the Adoption of Tier 2 or a "Tier 2-like"

Methodology

If consistency is EPA's goal for its GHG monitoring provisions, it would first be

appropriate for EPA to maintain consistency with the comparable provisions of other GHG

reporting programs - indeed, EPA has embraced this priority. E.g., Preamble to Proposed Rule,

74 Fed. Reg. at 16475 (rejecting an emissions calculation methodology in part because it would

"be inconsistent with several other GHG reporting programs"). As discussed above, in their

GHG reporting programs, both DOE and WCI accept Tier 2-like methodologies for MWCs,

using the emissions monitoring equipment that they are already required to have installed and

operated in accordance with strict quality assurance requirements. These programs require

facilities to use Tier 4 monitoring equipment if they are otherwise required to have the

equipment, so the alternative presented here accords with the more practical and cost-effective

approaches taken by DOE and WCI.

The specific program with which EPA has said it seeks to be consistent - that is, the

program in which 250 tons MSW/day is an important threshold - is the NSPS for MWCs. 40

C.F.R. § 60.50 et seq. The NSPS requires MWCs with a capacity greater than 250 tons

MSW/day to install continuous emissions monitoring equipment generally referred to as "Part 60

18

threshold of250 tons MSW/day and instead haronize the Tier 4 threshold for MWCs with

those that apply to the other sources in its class, based on the equivalent non-biogenic COz

emissions.

1. The Rationale of "Consistency with Other EPA Programs" Is Unpersuasive Because It

Does Not Support the Broad Requirement of Costly Tier 4 Monitoring for Municipal

Waste Combustors, but Instead Favors the Adoption of Tier 2 or a "Tier 2-like"

Methodology

If consistency is EPA's goal for its GHG monitoring provisions, it would first be

appropriate for EPA to maintain consistency with the comparable provisions of other GHG

reporting programs - indeed, EPA has embraced this priority. E.g., Preamble to Proposed Rule,

74 Fed. Reg. at 16475 (rejecting an emissions calculation methodology in part because it would

"be inconsistent with several other GHG reporting programs"). As discussed above, in their

GHG reporting programs, both DOE and WCI accept Tier 2-like methodologies for MWCs,

using the emissions monitoring equipment that they are already required to have installed and

operated in accordance with strict quality assurance requirements. These programs require

facilities to use Tier 4 monitoring equipment if they are otherwise required to have the

equipment, so the alternative presented here accords with the more practical and cost-effective

approaches taken by DOE and WC1.

The specific program with which EPA has said it seeks to be consistent - that is, the

program in which 250 tons MSW/day is an important threshold - is the NSPS for MWCs. 40

C.F.R. § 60.50 et seq. The NSPS requires MWCs with a capacity greater than 250 tons

MSW/day to install continuous emissions monitoring equipment generally referred to as "Part 60

18
CEMS." See 40 C.F.R. §§ 60.51a, 60.58a.15 In the Final Rule, EPA adopts this threshold to

require an entirely different type of continuous emissions monitoring equipment. 16 EPA then

concludes that this requirement achieves consistency. To the contrary, however, consistency

with the NSPS is better served by allowing those facilities that are already subject to NSPS

CEMS requirements to use their existing NSPS monitoring equipment. This would achieve true

consistency with the NSPS: i.e., applying the NSPS criteria as the NSPS program itself applies

them.

Moreover, it would also be more "consistent" for EPA to subject MWCs to the same

threshold for Tier 4 that it applies to all other Stationary Fuel Combustion Sources. Indeed, in

the preamble to the Final Rule, EPA states that "[ajll units rated at 250 mmBtulhr or less are

allowed to use the Tier 2 calculation methodologies." Preamble to Final Rule, 74 Fed. Reg. at

56292. But this statement is wrong as regards MWCs because the 250 tons MSW/day threshold

is lower than 250 mmBtulhr.

2. The Threshold of250 Tons MSW/day Would Impose Costs on Municipal Waste

Combustors That Are Grossly Disproportionate Both to Their Share of Emissions and to

Any Gains in the Accuracy of Reported Data

In the preambles to the Proposed and Final Rules, EPA noted that it sought to balance the

burden and costs of the reporting methods it requires against the accuracy of the resulting data.

E.g., Preamble to Proposed Rule, 74 Fed. Reg. at 16463 ("EPA would like information on the

15 The requirements that Part 60 already imposes on MWCs include the use of CEMS

using O2 for diluent correction and to conduct annual stack tests using EPA Methods 1-29.

16 The imposition of Tier 4 methodology at facilities that currently use Part 60 CEMS

would require the installation of stack flow monitors, C02 analyzers and flue gas moisture

monitors, as well as changes to data processing systems.

19

CEMS." See 40 C.F.R. §§ 60.51a, 60.58a.15 In the Final Rule, EPA adopts this threshold to

require an entirely diferent type of continuous emissions monitoring equipment. 16 EPA then

concludes that this requirement achieves consistency. To the contrary, however, consistency

with the NSPS is better served by allowing those facilities that are already subject to NSPS

CEMS requirements to use their existing NSPS monitoring equipment. This would achieve true

consistency with the NSPS: i.e., applying the NSPS criteria as the NSPS program itself applies

them.

Moreover, it would also be more "consistent" for EPA to subject MWCs to the same

threshold for Tier 4 that it applies to all other Stationary Fuel Combustion Sources. Indeed, in

the preamble to the Final Rule, EPA states that "(a)ll units rated at 250 mmBtulhr or less are

allowed to use the Tier 2 calculation methodologies." Preamble to Final Rule, 74 Fed. Reg. at

56292. But this statement is wrong as regards MWCs because the 250 tons MSW/day threshold

is lower than 250 mmBtul.

2. The Threshold of250 Tons MSW/day Would Impose Costs on Municipal Waste

Combustors That Are Grossly Disproportionate Both to Their Share of Emissions and to

Any Gains in the Accuracy of Reported Data

In the preambles to the Proposed and Final Rules, EPA noted that it sought to balance the

burden and costs of the reporting methods it requires against the accuracy of the resulting data.

E.g., Preamble to Proposed Rule, 74 Fed. Reg. at 16463 ("EPA would like information on the

15 The requirements that Part 60 already imposes on MWCs include the use of CEMS

using O2 for diluent correction and to conduct annual stack tests using EPA Methods 1-29.

16 The imposition of Tier 4 methodology at facilities that currently use Part 60 CEMS

would require the installation of stack flow monitors, COz analyzers and flue gas moisture

monitors, as well as changes to data processing systems.

19
technical feasibility, costs, and relative improvement in accuracy of direct measurement at

facilities."); Preamble to Final Rule, 74 Fed. Reg. at 56280 ("EPA remains convinced that this

approach strikes an appropriate balance between data accuracy and cost."). Similarly, in

determining the emissions thresholds for coverage by the rule, EPA has repeatedly advanced as a

primary rationale its attempt to balance the regulatory burden against the quantity of emissions

reported. E.g., Preamble to Proposed Rule, 74 Fed. Reg. at 16467 ("The proposed thresholds

maximized the rule coverage with 85 percent of U.S. emissions reported by approximately

13,000 reporters, while keeping reporting burden to a minimum and excluding small emitters.").

EPA's treatment of MWCs, however, clearly violates its stated priority of imposing a regulatory

burden that is justified by the quality and quantity of the resulting data. The 250 tons MSW Iday

threshold for requiring Tier 4 methodology has the effect of imposing a disproportionately high

cost on MWCs to monitor a miniscule portion of the emissions, with no appreciable

improvement in accuracy.

According to EPA's Inventory of us. Greenhouse Gas Emissions and Sinks: 1990-2007,

MWCs represent approximately 0.55% of the emissions in the Stationary Fuel Combustion

sector, but the 250 tons MSW/day threshold would impose installation costs on a single ERC

member, Waste Management, that amount to 43% of EPA's estimated total first year capital

costs for all stationary fuel combustion sources nationwide.V If these estimates are accurate, the

250 tons MSW/day threshold has the effect of imposing on these facilities a cost per unit of

17 Waste Management's estimated costs would be $4.5 million for installation in 15

facilities, 43% of EPA's estimate of $10.5 million in total capital costs for all stationary

combustion sources combined.

20

technical feasibility, costs, and relative improvement in accuracy of direct measurement at

facilities."); Preamble to Final Rule, 74 Fed. Reg. at 56280 ("EPA remains convinced that this

approach strikes an appropriate balance between data accuracy and cost."). Similarly, in

determining the emissions thresholds for coverage by the rule, EPA has repeatedly advanced as a

primary rationale its attempt to balance the regulatory burden against the quantity of emissions

reported. E.g., Preamble to Proposed Rule, 74 Fed. Reg. at 16467 ("The proposed thresholds

maximized the rule coverage with 85 percent of U.S. emissions reported by approximately

13,000 reporters, while keeping reporting burden to a minimum and excluding small emitters.").

EPA's treatment of MWCs, however, clearly violates its stated priority of imposing a regulatory

burden that is justified by the quality and quantity of the resulting data. The 250 tons MSW/day

threshold for requinng Tier 4 methodology has the effect of imposing a disproportionately high

cost on MWCs to monitor a miniscule portion of the emissions, with no appreciable

improvement in accuracy.

According to EPA's Inventory of us. Greenhouse Gas Emissions and Sinks: 1990-2007,

MWCs represent approximately 0.55% of the emissions in the Stationar Fuel Combustion

sector, but the 250 tons MSW/day threshold would impose installation costs on a single ERC

member, Waste Management, that amount to 43% of EPA's estimated total first year capital

costs for all stationary fuel combustion sources nationwide.17 If these estimates are accurate, the

250 tons MSW/day threshold has the effect of imposing on these facilties a cost per unit of

17 Waste Management's estimated costs would be $4.5 milion for installation in 15

facilities, 43% of EPA's estimate of $1 0.5 milion in total capital costs for all stationary

combustion sources combined.

20
GHG emissions monitored of nearly 80 times the average for this sector." The $4.5 million in

projected costs to Waste Management are also 11% of all capital outlays that EPA estimates

would result from the entire GHG reporting program ($39.6 million), whereas Waste

Management's facilities represent less than 0.16% of the 10,152 facilities EPA estimates will be

subject to the rule - a similarly disproportionate burden. 19

As ERC and its members explained in their comments, the burden will not significantly

improve the accuracy of the data reported, a conclusion that other GHG reporting programs have

also reached in their eventual selection of Tier 2-type monitoring methodologies. EPA also

claims that the relatively heterogeneous nature ofMSW (as compared, presumably, to coal, oil or

natural gas) is a partial justification for requiring the use of Tier 4 methodology, but this claim

fails as a rationale for Tier 4 because it does not take into account the nature of the calculations

that MWCs are required to perform to generate their emissions reports. Although MSW is

indeed a heterogeneous fuel when viewed on an hour-to-hour or day-to-day basis, such short

term variability effectively vanishes in the calculation of annual emissions. The greatest factor

affecting annual C02 emissions is the amount of MSW combusted (or steam generated, which is

a surrogate for MSW combustion) and the relative proportions of biogenic and non-biogenic

components, rather than instantaneous CO2 variations. Because MWCs are required to employ

ASTM D-6866 analysis to apportion their biogenic and non-biogenic emissions, the crucial

factor in determining the emissions that will be reported is the sampling that this analysis

requires, rather than the monitoring of total C02 emissions. Moreover, much of the variability in

1843% of the total cost expended for the monitoring of 0.55% of the emissions equates to

78 times EPA's estimated average expense per unit of emissions monitored.

19 11% of the total cost expended for the monitoring of 0.16% ofthe facilities equates to

69 times EPA's estimated average expense per facility.

21

GHG emissions monitored of nearly 80 times the average for this sector.18 The $4.5 millon in

projected costs to Waste Management are also 11 % of all capital outlays that EPA estimates

would result from the entire GHG reporting program ($39.6 millon), whereas Waste

Management's facilties represent less than 0.16% of the 10,152 facilities EPA estimates wil be

subject to the rule - a similarly disproportionate burden. 

19

As ERC and its members explained in their comments, the burden wil not significantly

improve the accuracy of the data reported, a conclusion that other GHG reporting programs have

also reached in their eventual selection of Tier 2-type monitoring methodologies. EPA also

claims that the relatively heterogeneous nature ofMSW (as compared, presumably, to coal, oil or

natural gas) is a partial justification for requiring the use of Tier 4 methodology, but this claim

fails as a rationale for Tier 4 because it does not take into account the nature of the calculations

that MWCs are required to perform to generate their emissions reports. Although MSW is

indeed a heterogeneous fuel when viewed on an hour-to-hour or day-to-day basis, such short

term variability effectively vanishes in the calculation of annual emissions. The greatest factor

affecting anual COz emissions is the amount of MSW combusted (or steam generated, which is

a surrogate for MSW combustion) and the relative proportions of biogenic and non-biogenic

components, rather than instantaneous COz variations. Because MWCs are required to employ

ASTM D-6866 analysis to apportion their biogenic and non-biogenic emissions, the crucial

factor in determining the emissions that wil be reported is the sampling that this analysis

requires, rather than the monitoring of total COz emissions. Moreover, much of the variabilty in

1843% of 

the total cost expended for the monitoring of 0.55% of the emissions equates to

78 times EPA's estimated average expense per unit of emissions monitored.

19 11% of 

the total cost expended for the monitoring of 0.16% ofthe facilities equates to

69 times EPA's estimated average expense per facility.

21
MSW is in the moisture content of the fuel, rather than its carbon content. Modern MWCs

equipped with heat recovery and steam generators must have a constant heat input into the

furnace to maintain desired steam generation and electrical generating output. Combustion of

the carbon in MSW is the primary source of heat required for steam generation and consequently

the carbon combusted must be kept at a consistent rate to maintain consistent heat and steam

production. Both of these quantities, total MSW combusted and steam produced, are directly

measurable without the use of additional monitoring equipment. In any reporting period,

however, it is the calculated proportions of biogenic and non-biogenic components that will

primarily determine the biogenic and non-biogenic CO2 emissions that a facility reports.

To understand why the allocation of biogenic and non-biogenic portions is centrally

important to evaluating the regulatory burden to MWCs, it is instructive to compare the Final

Rule's treatment of biogenic C02 emissions from biomass fuel facilities with its treatment of

MWCs. The Final Rule allows biomass fuel facilities of any size to use Tier 1 methodology, the

least burdensome alternative. 40 C.F.R. § 98.33(b)(l)(iii); 74 Fed. Reg. at 56400. In sharp

contrast, for MWCs, the approximately 60% ofMSW that is biomass has thus far brought the

diametrically opposite response from EPA: due to the mix of biogenic with non-biogenic CO2

emissions, EPA has elected to impose on MWCs the most stringent Tier 4 threshold to be found

anywhere in its GHG reporting program.

Finally, if EPA were principally concerned about the heterogeneity ofMSW as a fuel, it

could require the monitoring of any short term variability in CO2 emissions with the installation

of Part 60-certified CO2 CEMS, without the need for the expensive new stack gas flow meters

and data substitution requirements that Tier 4 entails. Thus the additional Tier 4 monitoring

equipment, which EPA has thus far maintained as a requirement to be imposed with unique

22

MSW is in the moisture content of the fuel, rather than its carbon content. Modern MWCs

equipped with heat recovery and steam generators must have a constant heat input into the

furnace to maintain desired steam generation and electrical generating output. Combustion of

the carbon in MSW is the primary source of heat required for steam generation and consequently

the carbon combusted must be kept at a consistent rate to maintain consistent heat and steam

production. Both of these quantities, total MSW combusted and steam produced, are directly

measurable without the use of additional monitoring equipment. In any reporting period,

however, it is the calculated proportions of biogenic and non-biogenic components that wil

primarily determine the biogenic and non-biogenic COz emissions that a facilty reports.

To understand why the allocation of biogenic and non-biogenic portions is centrally

important to evaluating the regulatory burden to MWCs, it is instructive to compare the Final

Rule's treatment of biogenic COz emissions from biomass fuel facilities with its treatment of

MWCs. The Final Rule allows biomass fuel facilities of any size to use Tier 1 methodology, the

least burdensome alternative. 40 C.F.R. § 98.33(b)(l)(iii); 74 Fed. Reg. at 56400. In shar

contrast, for MWCs, the approximately 60% ofMSW that is biomass has thus far brought the

diametrically opposite response from EPA: due to the mix of biogenic with non-biogenic COz

emissions, EPA has elected to impose on MWCs the most stringent Tier 4 threshold to be found

anywhere in its GHG reporting program.

Finally, if EPA were principally concerned about the heterogeneity ofMSW as a fuel, it

could require the monitoring of any short term variabilty in COz emissions with the installation

of Part 60-certified COz CEMS, without the need for the expensive new stack gas flow meters

and data substitution requirements that Tier 4 entails. Thus the additional Tier 4 monitonng

equipment, which EPA has thus far maintained as a requirement to be imposed with unique

22
stringency on MWCs, merely represents a steep cost for MWCs that has no practical justification

in the purposes of the Final Rule.

3. EPA Has Itself Indicated That the 250 Tons Per Day Threshold for Requiring Tier 4

Methodology Is Not Warranted

The responses to comments that EPA published along with the Final Rule contain

conflicting accounts of EPA's assessment of the appropriateness of both the stringent 250 tons

MSW/day threshold for MWCs as well as the need to impose Tier 4 requirements beyond those

units that currently have the necessary equipment installed. First, to Comment EPA-HQ-OAR2008-0508-0376.1, excerpt 1, EPA responds that it "believes that it is appropriate to require the

use ojCEMS on the largest MSW combustion sources which already have C02 concentration

monitors and stack gas flow rate monitors in place." Mandatory Greenhouse Gas Reporting

Rule: EPA's Response to Public Comments, Subpart C - General Stationary Fuel Combustion

Sources, at 171 (emphasis added). This is precisely the approach taken by the WCI in its GHG

reporting program, and which industry has consistently maintained would be appropriate in

EPA's mandatory program. Second, to Comment EPA-HQ-OAR-2008-0508-0376.1, excerpt 8,

EPA responds that it "appreciates your comment and has increased the 250 ton MSWlday

threshold to 500 ton MSWlday." Mandatory Greenhouse Gas Reporting Rule: EPA's Response

to Public Comments, Subpart C - General Stationary Fuel Combustion Sources, at 304

(emphasis added). EPA thereby acknowledges the inappropriateness of the 250-ton threshold, as

industry has consistently argued in its comments.

* * *

23

stringency on MWCs, merely represents a steep cost for MWCs that has no practical justification

in the purposes of the Final Rule.

3. EPA Has Itself Indicated That the 250 Tons Per Day Threshold for Requiring Tier 4

Methodology Is Not Warranted

The responses to comments that EPA published along with the Final Rule contain

conflcting accounts of EPA's assessment of the appropriateness of both the stringent 250 tons

MSW/day threshold for MWCs as well as the need to impose Tier 4 requirements beyond those

units that currently have the necessary equipment installed. First, to Comment EPA-HQ-OAR2008-0508-0376.1, excerpt 1, EPA responds that it "believes that it is appropriate to require the

use ofCEMS on the largest MSW combustion sources which already have C02 concentration

monitors and stack gas flow rate monitors in place." Mandatory Greenhouse Gas Reporting

Rule: EPA's Response to Public Comments, Subpart C - General Stationary Fuel Combustion

Sources, at 171 (emphasis added). This is precisely the approach taken by the WCI in its GHG

reporting program, and which industry has consistently maintained would be appropriate in

EPA's mandatory program. Second, to Comment EPA-HQ-OAR-2008-0508-0376.1, excerpt 8,

EPA responds that it "appreciates your comment and has increased the 250 ton MSW/day

threshold to 500 ton MSW/day." Mandatory Greenhouse Gas Reporting Rule: EPA's Response

to Public Comments, Subpart C - General Stationary Fuel Combustion Sources, at 304

(emphasis added). EPA thereby acknowledges the inappropriateness of the 250-ton threshold, as

industry has consistently argued in its comments.

* * *

23
In sum, the Final Rule's requirement that all MWCs with a capacity of at least 250 tons

MSW/day use the Tier 4 methodology imposes a disproportionate regulatory burden on MWCs

that lacks a reasonable justification, and thereby qualifies as an arbitrary and capricious agency

action. EPA has explained its decision in terms of consistency with other programs, but in so

doing it has selected only one program (i.e., NSPS) among many, and applying a peculiar form

of "consistency" by which it imposes substantial requirements beyond what the NSPS program

itself requires. The mere use of a criterion employed in one program as the basis for imposing a

different, more onerous requirement in another program cannot persuasively be styled as a

meaningful form of "consistency."

Further, EPA appears to have overlooked various other ways in which a straightforward,

less burdensome alternative would be equally or more consistent with both NSPS and other

aspects of both current and emerging GHG regulatory schemes. Specifically, the alternative of

deleting the 250 tons MSW/day provision and requiring only large MWCs already equipped with

all necessary monitoring equipment to use Tier 4 would be consistent with: 1) the WCI and DOE

reporting methodologies; 2) the monitoring equipment required of MWCs under the NSPS; and

3) the Final Rule's requirements for all other Stationary Fuel Combustion Sources. Moreover,

this less burdensome solution would also accord with EPA's priority that the GHG reporting

program strike an appropriately cost-effective balance between regulatory burden and results,

avoiding the inequitable result of imposing on a single ERC member -- Waste Management --

43% of EPA's estimated capital costs for all stationary combustion sources combined, or 11% of

the Final Rule's total capital costs to measure less than 0.16% of the total emissions.

24

In sum, the Final Rule's requirement that all MWCs with a capacity of at least 250 tons

MSW/day use the Tier 4 methodology imposes a disproportionate regulatory burden on MWCs

that lacks a reasonable justification, and thereby qualifies as an arbitrary and capricious agency

action. EPA has explained its decision in terms of consistency with other programs, but in so

doing it has selected only one program (i.e., NSPS) among many, and applying a peculiar form

of "consistency" by which it imposes substantial requirements beyond what the NSPS program

itself requires. The mere use of a criterion employed in one program as the basis for imposing a

different, more onerous rèquirement in another program canot persuasively be styled as a

meaningful form of "consistency."

Further, EPA appears to have overlooked various other ways in which a straightforward,

less burdensome alternative would be equally or more consistent with both NSPS and other

aspects of both current and emerging GHG regulatory schemes. Specifically, the alternative of

deleting the 250 tons MSW/day provision and requiring only large MWCs already equipped with

all necessary monitoring equipment to use Tier 4 would be consistent with: l) the WCI and DOE

reporting methodologies; 2) the monitoring equipment required of MWCs under the NSPS; and

3) the Final Rule's requirements for all other Stationary Fuel Combustion Sources. Moreover,

this less burdensome solution would also accord with EPA's priority that the GHG reporting

program strike an appropnately cost-effective balance between regulatory burden and results,

avoiding the inequitable result of imposing on a single ERC member -- Waste Management --

43% of EPA's estimated capital costs for all stationary combustion sources combined, or 11 % of

the Final Rule's total capital costs to measure less than 0.16% of the total emissions.

24
IV. RELIEF REQUESTED

Pursuant to Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), ERC

hereby requests that EPA reconsider the portions of the Final Rule, Mandatory Reporting of

Greenhouse Gases, as discussed above, and make the changes indicated as follows:

~ at 40 C.F.R. Part 98, Subpart C, Table C-l, restore the Proposed Rule's designation of

MSW and tires as "alternative fuels" (i.e., reverse the unanticipated change to "fossil

fuel-derived fuels (solid)");

@ at 40 C.F.R. § 98.6, restore the Proposed Rule's definition of "fossil fuel" to "Fossil

fuel means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel

derived from such materials for the purpose of creating useful heat," eliminating the

unanticipated inclusion of "consumer products that are derived from such materials

and are combusted";

~ at 40 C.F.R. § 98.6, remove the definition of "fossil fuel-fired," which EPA did not

propose; and

~ at 40 C.F.R. § 98.33(b)(4)(ii), eliminate the 250 tons MSW/day threshold for

mandatory use of Tier 4 methodology for MWCs, and instead require Tier 4 only for

those facilities that already have the appropriate Tier 4 CEMS equipment installed, or

require the use of a modified Tier 2 methodology, as described above.

25

iv. RELIEF REQUESTED

Pursuant to Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), ERC

hereby requests that EPA reconsider the portions of the Final Rule, Mandatory Reporting of

Greenhouse Gases, as discussed above, and make the changes indicated as follows:

~ at 40 C.F.R. Part 98, Subpar C, Table C-L, restore the Proposed Rule's designation of

MSW and tires as "alternative fuels" (i.e., reverse the unanticipated change to "fossil

fuel-denved fuels (solid)");

@ at 40 C.F.R. § 98.6, restore the Proposed Rule's definition of "fossil fuel" to "Fossil

fuel means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel

denved from such materials for the purose of creating useful heat," eliminating the

unanticipated inclusion of "'consumer products that are denved from such materials

and are combusted";

~ at 40 C.F.R. § 98.6, remove the definition of "fossil fuel-fired," which EPA did not

propose; and

~ at 40 C.F.R. § 98.33(b)(4)(ii), eliminate the 250 tons MSW/day threshold for

mandatory use of Tier 4 methodology for MWCs, and instead require Tier 4 only for

those facilties that already have the appropnate Tier 4 CEMS equipment installed, or

require the use of a modified Tier 2 methodology, as described above.

25
Respectfully submitted,

Davi M. Friedland

Beveridge & Diamond, P.C.

1350 I Street, N.W., Suite 700

Washington, D.C. 20005-3311

(202) 789-6047

Counsel for the Petitioner

Energy Recovery Council

Dated: December 28, 2009

26

Respectfully submitted,

Æ.r(Q

Davi M. Fnedland

Beveridge & Diamond, P.C.

1350 I Street, N.W., Suite 700

Washington, D.C. 20005-3311

(202) 789-6047

Counsel for the Petitioner

Energy Recovery Council

Dated: December 28, 2009

26