U.S. Environmental Protection Agency 

Documentation of OMB Review Under Executive Order 12866 

Title of Action: 

Docket#: FRL#: RIN:

This action was submitted to the Office of Management and Budget (OMB) for review under Executive Order (E.O.) 

12866, titled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Whenever EPA makes publicly available 

a regulatory action that was reviewed under E.O. 12866, section 6(a)(3)(E) of the E.O. directs the Agency to also: 

(1) Make available to the public a copy of the information that was provided to OMB’s Office of Information and 

Regulatory Affairs (OIRA) for review under the E.O., i.e., the text of the draft regulatory action and, if applicable, 

an assessment of the potential costs and benefits, as well as additional information for those actions that are 

determined to be economically significant under the E.O. (Information requirements are described in sections 

6(a)(3)(B) and (C)). 

(2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was 

subsequently issued, using a method that is complete, clear, and simple. 

(3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA.

For this regulatory action, were substantive changes made to information reviewed under E.O. 

12866? [Please check the appropriate answer.]

No. [In the docket, include the information identified in item (1) below.]

Yes. [In the docket, include the information identified in items (1) – (3) below.]

Accordingly, the Agency has included this form and the following information in the public 

docket for this regulatory action: [Please check the appropriate information.]

(1) A copy of the information that was provided to OIRA for review under the E.O. 

(2) Documentation of any substantive changes made to the draft regulatory text that was 

submitted to OIRA when compared with what was subsequently made publicly available.

The documentation is provided on the pages following this form. Changes made at the 

suggestion or recommendation of OIRA, if any, are clearly identified through attribution to 

OIRA. EPA has used one or more of the following methods to note changes: [Select the 

appropriate option(s).]

(a) Redline-Strikeout – A copy of the draft regulatory action submitted, using redlinestrikeout to show the substantive changes that were made.

(b) Hand Markup – A copy of the draft regulatory action submitted, using handwritten notes 

to show the substantive changes that were made.

(c) Note to the file - A document that identifies the substantive changes that were made, 

with page and paragraph references to the draft regulatory action that was submitted.

If you have any questions about this regulatory action or this documentation, please call the 

contact:

Name: Email: Phone: 

Revised 05/05/2010 

Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; NonHazardous Secondary Materials That Are Solid Waste: Final Rule

EPA-HQ-RCRA-2008-0329 2050-AG44

Marc Thomas thomas.marc@epa.gov 703-308-0023
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EO 12866_ 2060-AR15_CISWI-NHSM Reconsideration_Final_051112.4pm 

6560-50-P 

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Parts 60 and 241 

[EPA–HQ–OAR–2003-0119 and EPA-HQ-RCRA 2008-0329; FRL- ] 

RIN 2060-AR15 and 2050-AG44 

Commercial and Industrial Solid Waste Incineration Units: 

Reconsideration and Final Amendments; Non-Hazardous Secondary 

Materials That Are Solid Waste: Final Rule 

AGENCY: Environmental Protection Agency. 

ACTION: Final rule; notice of final action on reconsideration. 

SUMMARY: This action sets forth the EPA’s final decision on the 

issues for which it granted reconsideration in December 2011, 

which pertain to certain aspects of the March 21, 2011, final 

rule entitled “Standards of Performance for New Stationary 

Sources and Emissions Guidelines for Existing Sources: 

Commercial and Industrial Solid Waste Incineration Units” (CISWI 

rule). This action also includes our final decision to deny the 

requests for reconsideration with respect to all issues raised 

in the petitions for reconsideration of the final CISWI rule for 

which we did not grant reconsideration. Among other things, this 

final action establishes effective dates for the standards and 

makes technical corrections to the final rule to clarify 

definitions, references, applicability, and compliance issues. 

In addition, the EPA is issuing final amendments to the 
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regulations that were codified by the Non-Hazardous Secondary 

Materials rule. Originally promulgated on March 21, 2011, the 

Non-Hazardous Secondary Materials rule provides the standards 

and procedures for identifying whether Non-Hazardous Secondary 

Materials are solid waste under the Resource Conservation and 

Recovery Act when used as fuels or ingredients in combustion 

units. The purpose of these amendments is to clarify several 

provisions in order to implement the Non-Hazardous Secondary 

Materials rule as the Agency originally intended. 

DATES: This final rule is effective on [INSERT THE DATE 60 DAYS 

AFTER THE DATE OF PUBLICATION OF THIS FINAL RULE IN THE FEDERAL 

REGISTER]. 

ADDRESSES: The EPA established a single docket under Docket ID 

No. EPA-HQ-OAR-2003-0119 for this action on the commercial and 

industrial solid waste incineration rule. The EPA also 

established a single docket under Docket ID No. EPA-HQ-RCRA2008-0329 for this action on the the Non-Hazardous Secondary 

Materials rule. All documents in the docket are listed in the 

http://www.regulations.gov index. Although listed in the index, 

some information is not publicly available, e.g., confidential 

business information or other information whose disclosure is 

restricted by statute. Certain other material, such as 

copyrighted material, will be publicly available only in hard 
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copy. Publicly available docket materials are available either 

electronically in http://www.regulations.gov or in hard copy at 

the EPA Docket Center, EPA West Building, Room 3334, 1301 

Constitution Ave., NW, Washington, DC. The Public Reading Room 

is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone number for the Public 

Reading Room is (202) 566-1744, and the telephone number for the 

Docket Center is (202) 566-1742. 

FOR FURTHER INFORMATION CONTACT: For further information 

regarding the commercial and industrial solid waste incineration 

reconsideration and final rule, contact Ms. Toni Jones, Fuels 

and Incineration Group, Sector Policies and Programs Division 

(E143–05), Environmental Protection Agency, Research Triangle 

Park, North Carolina 27711; telephone number: (919) 541–0316; 

fax number: (919) 541–3470; email address: jones.toni@epa.gov, 

or Ms. Amy Hambrick, Fuels and Incineration Group, Sector 

Policies and Programs Division (E143–05), Environmental 

Protection Agency, Research Triangle Park, North Carolina 27711; 

telephone number: (919) 541–0964; fax number: (919) 541–3470; 

email address: hambrick.amy@epa.gov. 

For further information regarding the Non-Hazardous 

Secondary Materials final rule, contact Mr. George Faison, 

Program Implementation and Information Division, Office of 
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Resource Conservation and Recovery, 5303P, Environmental 

Protection Agency, Ariel Rios Building, 1200 Pennsylvania 

Avenue, N.W, Washington, D.C. 20460-0002; telephone number: 703-

305-7652; fax number: 703-308-0509; email address: 

faison.george@epa.gov. 

EXECUTIVE SUMMARY: 

Purpose of the Regulatory Action

The EPA is promulgating final rules that establish 

standards for new and existing commercial and industrial solid 

waste incineration units. Section 129 of the Clean Air Act 

(CAA), entitled “Solid Waste Combustion,” requires EPA to 

develop and adopt standards for solid waste incineration units 

pursuant to CAA sections 111 and 129. Section 129(a)(1)(A) of 

the CAA requires EPA to establish performance standards, 

including emissions limitations, for “solid waste incineration 

units” generally and, in particular, for “solid waste 

incineration units combusting commercial or industrial waste.” 

CAA section 129(a)(1)(D). Section 129 of the CAA defines “solid 

waste incineration unit” as “a distinct operating unit of any 

facility which combusts any solid waste material from commercial 

or industrial establishments or the general public.” CAA section 

129(g)(1). Section 129 of the Clean Air Act also provides that 

“solid waste” shall have the meaning established by EPA pursuant 
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to its authority under the Resource Conservation and Recovery 

Act. CAA section 129(g)(6). 

The December 23, 2011, proposed CISWI reconsideration rule 

granted reconsideration on a limited set of issues. This final 

rule makes certain revisions to the final rule issued on March 

21, 2011, based on those reconsideration issues and in response 

to public comment on the proposed CISWI reconsideration rule. 

As explained elsewhere, on May 18, 2011, the EPA issued a 

notice that delayed the effectiveness of the March 21, 2011, 

CISWI rule (the “Delay Notice”). As the result of such action, 

the 2000 CISWI rule remained in effect. The United States 

District of Court from the District of Columbia vacated the 

Delay Notice in January 2012. However, because of the Delay 

Notice, delayed the effectiveness of the CISWI rule from May 

2011 through vacature of that notice in January 2012, the 

revisions to the 2000 CISWI rule that were finalized in the 2011 

CISWI rule were never codified in the CFR. Although the issues 

on reconsideration were limited in the December 2011 CISWI 

reconsideration proposal, we had to include in that proposed 

reconsideration rule all of the regulatory changes that had been 

made since the 2000 rule because the 2011 CISWI rule was not 

codifed in the CFR. Specifically, we included in the December 

23, 2011, proposed reconsideration rule all of the regulatory 
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changes the EPA had made to the 2000 CISWI rule in the 2011 

CISWI rule, as well as the changes to the 2011 CISWI rule that 

the EPA proposed to make on reconsideration. The inclusion of 

such text in this final rule, in no way, alters our limitation 

of the issues for comment for which we granted reconsideration. 

Summary of Major Provisions for the Final Reconsideration 

Rule

In general, the final rule establishes revised numeric 

emission limits for some new and existing commercial and 

industrial solid waste incineration units for certain of the 

nine pollutants listed in section 129(a)(4) of the CAA1

. 

The EPA established standards for four subcategories of 

CISWI units in the 2011 CISWI rule: incinerators; small remote 

incinerators; energy recovery units; and waste-burning kilns. 

The 2011 CISWI rule also included two subcategories of energy 

recovery units. In this final rule, we have further 

subcategorized energy recovery units and subcategorized wasteburning kilns based on design type differences. Thus, the final 

rule includes three subcategories of energy recovery units and 

separate CO limits for two subcategories of waste-burning kilns. 

 

1

 The nine pollutants for which we must issue emission standards under section 

129 are: PM, SO2, HCl, NOX, CO, Pb, Cd, Hg, D/F. CAA section 129(a)(4). 
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We have further revised some of the CISWI limits proposed 

in the reconsideration notice in response to comments and 

incorporated additional data, including new data submitted 

during the comment period. These changes primarily affect the 

energy recovery unit and waste-burning kiln subcategories. 

To ensure compliance with the emission limits, this final 

rule establishes stack testing and continuous monitoring 

requirements. The rule allows sources to use continuous emission 

monitoring systems if an owner or operator chooses to do so. 

Continuous parameters and emissions levels (if used) are 

measured as either a 3-hour block or a 30-day rolling average 

basis, depending on the parameter being measured and the 

subcategory of CISWI. 

Since sources may choose to cease or start combusting solid 

waste at any time due to market conditions or for other reasons, 

the final rule contains provisions that specify the steps 

necessary for sources to switch applicability between this final 

rule and other applicable emission standards issued pursuant to 

CAA section 112. Finally, this rule contains revisions to some 

of the monitoring, recordkeeping and reporting requirements. The 

effective dates for existing sources depends primarily on State 

plan approval, but may be no later than the date 5 years after 

publication of this final rule in the Federal Register. For new 
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sources, the effective date is either [INSERT THE DATE 6 MONTHS 

AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] or 

the date of startup of the source, whichever is later. New 

sources are defined as sources that began construction on or 

after June 4, 2010, or commenced reconstruction or modification 

after [INSERT THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL 

RULE IN THE FEDERAL REGISTER]. 

Costs and Benefits 

The final rule affects 93 existing sources located at 65 

facilities. The EPA projects an additional incinerator and five 

additional small remote incinerators to be subject to this rule 

over the next five years. This final rule affects multiple 

sectors of our economy including small entities. Table 1 of this 

preamble summarizes the costs and benefits associated with this 

final rule. Note however, these are the costs and benefits of 

the final 2011 CISWI rule as amended by today’s final rule, and 

therefore replace the costs and benefits presented in the March 

2011 final rule. A more detailed discussion of the costs and 

benefits of this final rule is provided in Section I.F of this 

preamble. 

Table 1. Summary of the Monetized Benefits, Social Costs and Net 

Benefits for the Final CISWI NSPS and EG In 2015 (Millions of 

2008$)1
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3 percent Discount 

Rate 

7 percent Discount 

Rate 

Total Monetized 

Benefits2 $460 to $1,100 $420 to $1,100 

Total Social 

Costs3 $270 $270 

Net Benefits $190 to $730 $150 to $630 

Non-monetized 

Benefits 

Health effects from exposure to HAP (790 

tons of HCl, 2.6 tons of lead, 1.8 tons of 

cadmium, 740 pounds of mercury, and 93 

grams of dioxins/furans) 

Health effects from exposure to criteria 

pollutants (23,000 tons of CO, 7,300 tons of 

SO2, 7,200 tons of NO2, and secondary 

formation of ozone) 

Ecosystem effects 

Visibility impairment 

1 All estimates are for the implementation year (2015), and are 

rounded to two significant figures. These results reflect the 

lowest cost disposal assumption. 

2

 The total monetized benefits reflect the human health benefits 

associated with reducing exposure to PM2.5 through reductions of 

PM2.5 precursors such as directly emitted particles, SO2, and 

NOx. It is important to note that the monetized benefits 

include many but not all health effects associated with PM2.5

exposure. Monetized benefits are shown as a range from Pope et 

al. (2002) to Laden et al. (2006). These models assume that all 

fine particles, regardless of their chemical composition, are 

equally potent in causing premature mortality because there is 

no clear scientific evidence that would support the development 

of differential effects estimates by particle type. These 

estimates include the energy disbenefits valued at $3.8 million 

(using the 3 percent discount rate), which do not change the 

rounded totals. CO2-related disbenefits were calculated using 

the “social cost of carbon”, which is discussed further in the 

RIA.

3

 The methodology used to estimate social costs for one year in 

the multimarket model using surplus changes results in the same 

social costs for both discount rates. 
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SUPPLEMENTARY INFORMATION: 

Acronyms and Abbreviations. The following acronyms and 

abbreviations are used in this document. 

7-PAH 7 polyaromatic hydrocarbons 

16-PAH 16 polyaromatic hydrocarbons 

ACI activated carbon injection 

AF&PA American Forest & Paper Association 

ANPRM Advanced Notice of Proposed Rulemaking 

ANSI American National Standards Institute 

APA Administrative Procedure Act 

ARIPPA Anthracite Region Independent Power 

 Producers Association 

ASME American Society of Mechanical Engineers 

AST activated sludge treatment 

ASTM American Society for Testing and Materials 

ATCM Air Toxic Control Measure 

BAT best available technology 

Btu British thermal unit 

CAA Clean Air Act 

CARB California Air Resources Board 

CBI Confidential Business Information 

CBO carbon burn-out 

CCA chromated copper arsenate 

Cd cadmium 

C&D construction & demolition 

CDX Central Data Exchange 

CFB circulating fluidized bed 

CEMS continuous emissions monitoring systems 

CERCLA Comprehensive Environmental Response, Compensation, 

and Liability Act 

CFR Code of Federal Regulations 

CISWI Commercial and Industrial Solid Waste Incineration 

CO carbon monoxide 

CO2 carbon dioxide

Catalyst carbon monoxide oxidation catalyst 

Cl2 chlorine gas 

CSA Canadian Standards Association 
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CWA Clean Water Act 

D/F dioxin/furan 

DIFF dry sorbent injection fabric filter 

dscf dry standard cubic foot 

dscm dry standard cubic meter 

DSW Definition of Solid Waste 

EG emission guidelines 

EJ Environmental Justice 

EMPC estimated maximum possible concentration 

EOM extractable organic matter 

EPA U.S. Environmental Protection Agency 

ERT Electronic Reporting Tool 

ERU energy recovery unit 

ESP electrostatic precipitator 

FF fabric filters 

FR Federal Register 

HAP hazardous air pollutants 

HCl hydrogen chloride 

HF hydrogen fluoride 

Hg mercury 

HMI hospital, medical and infectious 

HMIWI Hospital, Medical and Infectious Waste Incineration 

HWC Hazardous Waste Combustor 

ICR Information Collection Request 

ISO International Standards Organization 

LBMS linkageless burner management system 

LML lowest measured level 

Mn manganese 

MACT maximum achievable control technology 

MDL method detection level 

mg/dscm milligrams per dry standard cubic meter 

mmBtu/hr million British thermal units per hour 

MSW Municipal Solid Waste 

MW megawatts 

MWC Municipal Waste Combustor 

NAAQS National Ambient Air Quality Standards 

NAICS North American Industrial Classification System 

NCASI National Council on Air and Stream Improvement 

ND nondetect 
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NESHAP National Emission Standards for Hazardous Air 

Pollutants 

ng/dscm nanograms per dry standard cubic meter 

NHSM non-hazardous secondary material(s) 

NOx nitrogen oxides 

NSPS New Source Performance Standards 

NTTAA National Technology Transfer and Advancement Act 

OAQPS Office of Air Quality Planning and Standards 

O&M operations and maintenance 

OMB Office of Management and Budget 

OP Office of Policy 

OSWI Other Solid Waste Incineration 

PAH polycyclic aromatic hydrocarbons 

Pb lead 

PCBs polychlorinated biphenyls 

PCDD polychlorinated dibenzodioxins 

PCDF polychlorinated dibenzofurans 

PIC product of incomplete combustion 

PM particulate matter 

POM polycyclic organic matter 

ppm parts per million 

ppmv parts per million by volume 

ppmvd parts per million by dry volume 

PRA Paper Reduction Act 

PS Performance Specification 

lb/MMBtu pound per million British thermal units 

QA/QC Quality Assurance/Quality Control 

RCRA Resource Conservation and Recovery Act 

RDL reported detection level 

RFA Regulatory Flexibility Act 

RIA Regulatory Impact Analysis 

RIN Regulatory Information Number 

RTO regenerative thermal oxidizer 

RTR residual risk and technology review 

SBA Small Business Administration 

SCR selective catalytic reduction 

SARU sulfuric acid regeneration unit 

SMCRA Surface Mining Control and Reclamation Act of 1977 

SNCR selective noncatalytic reduction 
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SO2 sulfur dioxide 

SSI Sewage Sludge Incineration 

SSM startup, shutdown, and malfunction 

SVOC Semi-Volatile Organic Compound 

SWDA Solid Waste Disposal Act 

TBtu tera British thermal unit 

TEF Total Equivalency Factor 

TEQ Toxic Equivalency 

TMB Total Mass Basis 

TOX Total Organic Halogens 

tpy tons per year 

TRI Toxics Release Inventory 

TSM Total Selected Metal 

TSR thermal sand reclamation 

TTN Technology Transfer Network 

UCL upper confidence limit 

ug/dscm micrograms per dry standard cubic meter 

UMRA Unfunded Mandates Reform Act 

UL upper limit 

UPL upper prediction limit 

U.S.C. United States Code 

USGS United States Geological Survey 

UTL upper tolerance limit 

VCS Voluntary Consensus Standards 

VOC volatile organic compound 

WWW Worldwide Web 

WWW Worldwide Web 

A. Does this action apply to me?

Categories and entities potentially affected by this action 

are those that operate CISWI units, and those that generate 

potentially affected NHSM. The NSPS and EG, hereinafter referred 

to as “standards,” for CISWI affect the following categories of 

sources: 
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Category NAICS1 

Code 

Examples of Potentially 

Regulated Entities 

Any industrial 

or commercial 

facility using 

a solid waste 

incinerator 

211, 212, 

486 

Oil and Gas Extraction, mining 

(except oil and gas),; Pipeline 

Transportation 

221 Utilities 

321, 322, 

337 

Wood Product Manufacturing, Paper 

Manufacturing, Furniture and Related 

Product Manufacturing 

325, 326 Chemical Manufacturing, Plastics and 

Rubber Products Manufacturing 

327 Nonmetallic Mineral Product 

Manufacturing, 

333, 336 

Machinery Manufacturing, 

Transportation Equipment 

Manufacturing 

423, 44, Merchant Wholesalers, Durable Goods, 

Retail Trade 

Any facility 

or entity 

generating a 

non hazardous 

secondary 

material that 

may be burned 

for fuel or 

destruction2

111 Crop Production 

112 Animal Production 

113 Forestry and Logging 

115 Support Activities for Agriculture 

and Forestry 

211 Oil and Gas Extraction 

212 Mining (except oil and gas) 

221 Utilities 

236 Construction of Buildings 

311 Food Manufacturing 

312 Beverage and Tobacco Product 

Manufacturing 

313 Textile Mills 

316 Leather and Allied Product 

Manufacturing 

321 Wood Product Manufacturing 

322 Paper Manufacturing 

324 Petroleum and Coal Products 

Manufacturing 

325 Chemical Manufacturing 

326 Plastics and Rubber Products 

Manufacturing 

327 NonMetallic Mineral Product 

Manufacturing 
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Category NAICS1 

Code 

Examples of Potentially 

Regulated Entities 

331 Primary Metal Manufacturing 

332 Fabricated Metal Product 

Manufacturing 

333 Machinery Manufacturing 

334 Computer and Electronic Product 

Manufacturing 

336 Transportation Equipment 

Manufacturing 

337 Furniture and Related Product 

Manufacturing 

339 Miscellaneous Manufacturing 

423 Merchant Wholesalers, Durable Goods 

424 Merchant Wholesalers, Nondurable 

Goods 

44-45 

Retail Trade (all categories, 

including non-store retailers, 

vending, and direct sellers) 

486 Pipeline Transportation 

493 Warehousing and Storage 

511 Publishing Industries (except 

internet) 

531 Real Estate 

541 Professional, Scientific, and 

Technical Services 

611 Educational Services 

622 Hospitals 

623 Nursing and Residential Care 

Facilities 

624 Social Assistance 

713930 Boating Clubs with Marinas 

721 Accommodation 

722 Food Services and Drinking Places 

813 

Religious, Grantmaking, Civic, 

Professional, and Similar 

Organizations 

92 Public Administration 

1 North American Industry Classification System. 

2 May be some overlap with the incinerators.
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This table is not intended to be exhaustive, but rather 

provides a guide for readers regarding entities likely to be 

affected by the final action. To determine whether your facility 

would be affected by the final action, you should examine the 

applicability criteria in 40 CFR 60.2010 of subpart CCCC, 40 CFR 

60.2505 of subpart DDDD, and 40 CFR 241. If you have any 

questions regarding the applicability of the final action to a 

particular entity, contact the persons listed in the preceding 

FOR FURTHER INFORMATION CONTACT section. 

B. Where can I get a copy of this document?

The docket number for the action regarding the CISWI NSPS 

(40 CFR part 60, subpart CCCC) and EG (40 CFR part 60, subpart 

DDDD) is Docket ID No. EPA–HQ–OAR–2003–0119. 

Worldwide Web. In addition to being available in the 

docket, an electronic copy of the final action is available on 

the WWW through the TTN Web. Following signature, the EPA posted 

a copy of the final action on the TTN’s policy and guidance page 

for newly proposed or promulgated rules at 

http://www.epa.gov/ttn/oarpg. The TTN provides information and 

technology exchange in various areas of air pollution control. 

C. Judicial Review

Under the Clean Air Act (CAA) section 307(b)(1), judicial 

review of this final rule is available only by filing a petition 
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for review in the U.S. Court of Appeals for the District of 

Columbia Circuit by [INSERT DATE 60 DAYS FROM DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. Under CAA section 

307(d)(7)(B), only an objection to this final rule that was 

raised with reasonable specificity during the period for public 

comment can be raised during judicial review. This section also 

provides a mechanism for us to convene a proceeding for 

reconsideration, ‘‘[i]f the person raising an objection can 

demonstrate to EPA that it was impracticable to raise such 

objection within [the period for public comment] or if the 

grounds for such objection arose after the period for public 

comment (but within the time specified for judicial review) and 

if such objection is of central relevance to the outcome of this 

rule.’’ Any person seeking to make such a demonstration to us 

should submit a Petition for Reconsideration to the Office of 

the Administrator, Environmental Protection Agency, Room 3000, 

Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 

20004, with a copy to the persons listed in the preceding FOR 

FURTHER INFORMATION CONTACT section, and the Associate General 

Counsel for the Air and Radiation Law Office, Office of General 

Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, DC 20004. Note, under CAA 

section 307(b)(2), the requirements established by this final 
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rule may not be challenged separately in any civil or criminal 

proceedings brought by EPA to enforce these requirements. 

Organization of this Document. The following outline is 

provided to aid in locating information in this preamble. 

I. CISWI Reconsideration and Final Rule 

A. Background Information 

1. What is the history of the CISWI standards? 

2. How is the definition of solid waste addressed in the final 

CISWI rule? 

3. What is the relationship between this rule and other 

combustion rules? 

4. Response to the Vacatur of Effective Dates 

B. Summary of This Final Rule 

1. Subcategories of Affected Units and Emission Standards 

2. Fuel Switching Provisions 

3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil 

Treatment Units, Laboratory Analysis Units, and Space Heaters 

4. Affirmative Defense for Malfunction Events 

5. CO Monitoring Requirements 

6. Full-load Stack Test Requirement for CO Coupled With 

Continuous Oxygen Monitoring 

7. Non-detect Methodology Using Three Times the Detection Level 

8. Definitions for Foundry Sand Thermal Reclamation Unit and 

Chemical Recovery Unit 

9. Definition of Contained Gaseous Material 

10. Parametric Monitoring Provisions for Additional Control 

Device Types 

11. Particulate Matter Continuous Monitoring Provisions for 

Large ERUs and Waste-burning Kilns 

12. Revised Definition of Waste-burning Kiln 

13. Revised Definition of Solid Waste 

14. Effective Dates 

C. Summary of Significant Changes Since Proposal 

1. Revision of the Subcategories 

2. Revisions to the Monitoring Requirements 

3. Oxygen Monitoring Requirements 

4. Removal of the Definition of Homogeneous Waste 

5. Non-detect Methodology Using Three Times the Detection Level 

6. Parametric Monitoring for Additional Control Device Types 

7. Particulate Matter Continous Monitoring Provisions for Large 

ERUs and Waste-burning Kilns 
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8. Effective Dates 

9. Definition of Waste-burning Kiln 

D. Technical Corrections and Clarifications 

E. Major Public Comments and Responses 

F. What other actions are we taking? 

G. What are the impacts associated with the amendments? 

1. What are the primary air impacts? 

2. What are the water and solid waste impacts? 

3. What are the energy impacts? 

4. What are the secondary air impacts? 

5. What are the cost and economic impacts? 

6. What are the benefits? 

II. NHSM Final Revisions 

A. Statutory Authority 

B. NHSM Rule History 

C. Introduction – Summary of Regulations Being Finalized 

1. Revised Definitions 

a. Clean Cellulosic Biomass 

b. Contaminants 

c. Established Tire Collection Programs 

d. Resinated Wood 

2. Contaminant Legitimacy Criterion for NHSM Used as Fuels 

3. Categorical Non-Waste Determinations for Specific NHSM Used 

as Fuels 

a. Scrap Tires 

b. Resinated Wood 

c. Coal Refuse 

d. Pulp and Paper Sludge 

4. Rulemaking Petition Process for Other Categorical Non-Waste 

Determinations (40 CFR 241.4(b)) 

5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination 

Petition Process 

6. Revised Introductory Text for 40 CFR 241.3(a) 

D. Comments on the Proposed Rule and Rationale for Final 

Decisions 

1. Revised Definitions 

a. Clean Cellulosic Biomass 

b. Contaminants 

c. Established Tire Collection Programs 

2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels 

a. General Comments on the Revised Contaminant Legitimacy 

Criterion 

b. Grouping of Contaminants 

c. Meaning of Designed to Burn 

d. Contaminant Comparisons Allowed 
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3. Categorical Non-Waste Determinations for Specific NHSM Used 

as Fuels 

a. Scrap Tires 

b. Resinated Wood 

4. Rulemaking Petition Process for Other Categorical Non-Waste 

Determinations 

5. Materials for Which Additional Information was Requested 

a. Pulp and Paper Sludge 

b. Coal Refuse 

c. Manure 

6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination 

Petition Process 

7. Revised Introductory Text for 40 CFR 241.3(a) 

E. Cost and Benefits of the Final Rule 

III. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and 

Executive Order 13563: Improving Regulation and Regulatory 

Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation and Coordination with 

Indian Tribal Governments 

G. Executive Order 13045: Protection of Children from 

Environmental Health Risks and Safety Risks 

H. Executive Order 13211: Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use 

I. National Technology Transfer and Advancement Act 

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. CISWI Reconsideration and Final Rule 

A. Background Information 

1. What is the history of the CISWI standards?

On December 1, 2000, the EPA promulgated NSPS and EG for 

CISWI units (60 FR 75338), hereinafter referred to as the 2000 

CISWI rule. On January 30, 2001, the Sierra Club filed a 
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petition for review in the U.S. Court of Appeals for the 

District of Columbia Circuit (Court) challenging the EPA’s final 

CISWI rule. On August 17, 2001, the EPA granted a Request for 

Reconsideration, pursuant to CAA section 307(d)(7)(B), submitted 

on behalf of the National Wildlife Federation and the Louisiana 

Environmental Action Network, related to the definition of 

“commercial and industrial solid waste incineration unit” and 

“commercial or industrial waste” in the 2000 CISWI rule. In 

granting the petition for reconsideration, the EPA agreed to 

undertake further notice and comment proceedings related to 

these definitions. On September 6, 2001, the Court entered an 

order granting the EPA’s motion for a voluntary remand of the 

CISWI rule, without vacatur. The EPA requested a voluntary 

remand of the final CISWI rule to address concerns related to 

the EPA’s procedures for establishing MACT floors for CISWI 

units in light of the Court’s decision in Cement Kiln Recycling 

Coalition v. EPA, 255 F.3d 855 (DC Cir. 2001)(Cement Kiln). 

Neither the EPA’s granting of the petition for reconsideration, 

nor the Court’s order granting a voluntary remand, stayed, 

vacated or otherwise influenced the effectiveness of the 2000 

CISWI rule. Therefore, the remand order had no effect on the 

effectiveness of the 2000 CISWI rule. 
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On February 17, 2004, the EPA published a proposed rule 

(CISWI Definitions Rule) soliciting comments on the definitions 

of “solid waste,” “commercial and industrial waste,” and 

“commercial and industrial solid waste incineration unit”. On 

September 22, 2005, the EPA published in the Federal Register

the final rule reflecting our decisions with respect to the 

CISWI Definitions Rule. The rule was challenged and, on June 8, 

2007, the Court vacated and remanded the CISWI Definitions Rule. 

In vacating the rule, the Court found that CAA section 129 

unambiguously includes among the incineration units subject to 

its standards, any facility that combusts any solid waste 

material, subject to four statutory exceptions. While the Court 

vacated the CISWI Definitions Rule, the 2000 CISWI rule remained 

in effect. 

On March 21, 2011, the EPA promulgated revised NSPS and EG 

for CISWI units (76 FR 15704)(2011 CISWI rule). That action 

constituted a partial response to the voluntary remand of the 

2000 CISWI rule and to the 2007 vacatur and remand of the CISWI 

Definitions Rule. In addition, the EPA addressed the 5-year 

technology review that is required under CAA section 129(a)(5). 

On the same day, the EPA issued a notice that it intended to 

reconsider certain aspects of the 2011 CISWI rule that warrant 

further opportunity for public comment (76 FR 15266). 
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Following promulgation of the 2011 CISWI rule, the EPA 

received petitions for reconsideration from the following 

organizations (“Petitioners”): Alaska Oil and Gas 

Association/Alaska Miners Association/ConocoPhillips (AOGA), 

American Chemistry Council (ACC), American Foundry Society 

(AFS), American Iron and Steel Institute (AISI) and American 

Coke and Coal Chemicals Institute (ACCCI), Anthracite Region 

Independent Power Producers Association (ARIPPA), American 

Petroleum Institute (API) and National Petrochemical and 

Refiners Association (NPRA), Auto Industry Forum (AIF), Citizens 

Energy Group (CEG), Council of Industrial Boiler Owners (CIBO), 

Earthjustice/Sierra Club, Edison Mission Energy, Hovensa L.L.C. 

and Tesoro Hawaii Corp., Industry Coalition (AF&PA et. al.), 

JELD-WEN Inc., Portland Cement Association (PCA), Renovar Energy 

Corp., and Waste Management Inc. (WM). Copies of these petitions 

are provided in the docket (see Docket ID No. EPA-HQ-OAR-2003-

0119). Petitioners, pursuant to CAA section 307(d)(7)(B), 

requested that the EPA reconsider numerous provisions in the 

2011 CISWI rule. 

On May 18, 2011, the EPA issued a notice to postpone the 

effective dates of the March 21, 2011, final CISWI rule. This 

notice also requested that the public submit additional data and 
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information to the EPA by July 15, 2011, for review and 

consideration in the reconsideration proceedings. 

On December 23, 2011, the EPA published a proposed rule 

soliciting comment on the issues on which EPA was granting 

reconsideration. In March 2011, EPA had publicaly stated its 

intent to reconsider some of these issues. 76 FR 15266. The EPA 

limited comment in the December 23, 2011, proposed rule to the 

specific issues on which it was granting reconsideration which 

included the following: 

 Revising the subcategories and emission limits for ERUs and 

waste-burning kilns to reflect updated inventories and 

additional data. 

 Establishing limitations on fuel switching provisions. 

 Definitions of cyclonic burn barrels, burn-off ovens, soil 

treatment units, laboratory analysis units, and space 

heaters from CISWI subcategories. 

 Providing an affirmative defense for malfunction events. 

 Revisions to the CO monitoring requirements. 

 Establishing a full-load stack test requirement for CO 

coupled with continuous oxygen (trim) monitoring. 

 Establishing a definition of “homogeneous waste.” 

 Responding to comments on the 2011 CISWI rule regarding 

the use of fuel variability in emission limit 

calculations. 

 Responding to comments on the 2011 CISWI rule regarding the 

review of D/F data and non-detect methodology using three 

times the detection level. 

 Responding to comments on the 2011 CISWI rule regarding 

providing an option for sources to use emissions averaging 

to demonstrate compliance. 

 Establishing a definition for foundry sand thermal 

reclamation unit. 
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 Reinstating the definition of contained gaseous material. 

 Revising the definition of chemical recovery unit. 

 Allowing for the use of feed stream analysis or other 

supplemental information to demonstrate compliance. 

 Responding to comments on the 2011 CISWI rule regarding 

providing percent reduction alternative standards. 

 Providing parametric monitoring provisions for additional 

control device types. 

 Revisions to the continuous monitoring provisions for large 

ERUs. 

 Extending effective dates. 

 Technical corrections and clarifications. 

2. How is the definition of solid waste addressed in the final 

CISWI rule? 

The RCRA definition of solid waste is integral in defining 

the CISWI source category. The EPA defines non-hazardous 

secondary materials (NHSM) that are solid waste under RCRA in 

the final “Identification of Non-Hazardous Secondary Materials 

That Are Solid Waste” Rulemaking. In an action parallel to the 

March 21, 2011, final CISWI rule, the EPA promulgated a final 

rule that identifies whether NHSM are or are not solid waste 

when used as fuels or ingredients in combustion units. That 

action, hereinafter referred to as the “2011 NHSM final rule,” 

is relevant to the final CISWI rule because some ERUs and wasteburning kilns combust, in their combustion units, secondary 

materials that are solid waste under the 2011 NHSM final rule. 
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Commercial and industrial units that combust solid waste are 

subject to standards issued pursuant to CAA section 129, rather 

than to standards issued pursuant to CAA section 112 that would 

otherwise be applicable to such units (e.g., units that would be 

boilers, process heaters or cement kilns if they were not 

combusting solid waste). 

3. What is the relationship between this rule and other 

combustion rules?

These amendments address the combustion of solid waste 

materials (as defined by the Administrator under RCRA in the 

NHSM Definition rule) in combustion units at commercial and 

industrial facilities. If an owner or operator of a CISWI unit 

permanently ceases combusting solid waste, the affected unit 

would no longer be subject to the CISWI rule because the unit 

would not be a solid waste incineration unit subject to 

standards under CAA section 129. Standards issued pursuant to 

section 112 of the CAA may apply to CISWI units that cease 

combusting solid waste. For example, CAA section 112 standards 

applicable to boilers and process heaters at major sources and 

boilers at area sources would apply to boilers and process 

heaters that cease combusting solid waste. Boilers and process 

heaters that are located at commercial and industrial facilities 

and that combust solid waste are subject to CISWI as ERUs. The 
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EPA has also finalized the CAA section 112 standards for the 

Portland Cement Manufacturing Industry (75 FR 21136, September 

9, 2010). Cement kilns combusting solid waste are waste-burning 

kilns subject to CISWI, not the otherwise applicable CAA section 

112 standards. 

4. What is the response to the vacatur of effective dates? 

On January 9, 2012, the United States District Court for 

the District of Columbia Circuit vacated the May 18, 2011, Delay 

Notice, which delayed the effective dates of the 2011 CISWI 

rule. On February 7, 2012, the EPA issued a no action assurance 

letter regarding certain notification deadlines in the March 

2011 CISWI rule. 

The EPA has conducted outreach to each Regional Office 

within the Agency and it has not found any new CISWI units that 

commenced construction since the proposed CISWI rule was 

published on June 10, 2010. The CAA defines a “new source,” in 

part, as any source that commences construction after the 

publication date of proposed CAA section 111 and 129 standards 2

CAA section 129(g)(2). Based on our outreach efforts, we do not 

 

2

 The date for determining whether a source is a “new” source is the 

publication date of the proposed standards. The final rule and 

reconsideration proposal contained a typographical error in 40 CFR 

60.2015(a)(1) that did not specify the June 4, 2010 proposal date. 
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believe there are any CISWI units that are in noncompliance with 

the NSPS contained in the final 2011 CISWI rule. 

B. Summary of This Final Rule

As stated above, the December 23, 2011, proposed rule 

addressed specific issues and provisions the EPA identified for 

reconsideration. This summary of the final rule reflects the 

Agency’s final action in regards to those provisions identified 

for reconsideration and on other discrete matters identified in 

response to comments or data received during the comment period. 

Information on other provisions and issues not proposed for 

reconsideration is contained in the notice and record for the 

2011 CISWI rule. 76 FR 15704 (March 21, 2011). 

1. Subcategories of Affected Units and Emission Standards 

This final rule defines a CISWI unit, in part, as any 

combustion unit at a commercial or industrial facility that is 

used to combust solid waste (as defined under RCRA)(40 CFR 

60.2265 (NSPS) and 60.2875 (EG)). We have established standards 

in this final rule for the following four subcategories of CISWI 

units: incinerators (i.e. units designed to burn discarded waste 

materials for the purpose of disposal); small, remote 

incinerators; energy recovery units (i.e. units that would be 

boilers or process heaters if they did not combust solid waste); 

and waste burning kilns (i.e. units that would be cement kilns 
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if they did not combust solid waste). We further subcategorized 

energy recovery units into three subcategories and waste burning 

kilns into two subcategories for CO emission limits only. 

Changes to the subcategories made since proposal are discussed 

below in Section IV of this preamble: “Summary of Significant 

Changes Since Proposal.” 

The final rule emission limits for new and existing sources 

in the solid-fuel burning ERU subcategory and the waste-burning 

kilns subcategories were revised based on changes to the 

inventories for those subcategories as discussed below in 

Section IV of this preamble: “Summary of Significant Changes 

Since Proposal.” Tables 2 and 3 of this preamble present the 

final emission limits for all subcategories for existing and new 

sources, respectively. 

Table 2. Comparison of Existing Source MACT Floor Limits for 

2000 CISWI Rule and the Final MACT Floor Limits 

Pollutant 

(units)a

Incinerators 

(2000 

CISWI 

limit) 

 CISWI Subcategories

Incinerators ERUs -

Solids

ERUs – 

Liquid/Gas

Wasteburning 

kilns

Small, 

remote 

incinerators

HCl 

(ppmv)

62 29 0.20 

(bioma

ss 

units)

/

21 

(coal 

units)

14b 3.0b 220
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Pollutant 

(units)a

Incinerators 

(2000 

CISWI 

limit) 

 CISWI Subcategories

Incinerators ERUs -

Solids

ERUs – 

Liquid/Gas

Wasteburning 

kilns

Small, 

remote 

incinerators

CO (ppmv) 157 17 260 

(bioma

ss 

units)

/

95 

(coal 

units)

35 110 (long 

kilns) / 

790 

(preheater 

/ 

precalcine

r) 

31

Pb 

(mg/dscm)

0.04 0.015b 0.014b

(bioma

ss 

units) 

/ 

0.013b

(coal 

units)

0.096 0.014b 2.7

Cd 

(mg/dscm)

0.004 0.0026 0.0014

b

(bioma

ss 

units) 

/ 

0.058 

(coal 

units) 

0.023 0.0014b 0.61

Hg 

(mg/dscm)

0.47 0.0054 0.0022 

(bioma

ss 

units) 

/ 

0.0028 

(coal 

units)

0.031b 0.011b 0.0057

PM, 

filterabl

e 

(mg/dscm)

70 34 11 

(bioma

ss 

units) 

/ 60 

(coal 

units)

110 3.2 230
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Pollutant 

(units)a

Incinerators 

(2000 

CISWI 

limit) 

 CISWI Subcategories

Incinerators ERUs -

Solids

ERUs – 

Liquid/Gas

Wasteburning 

kilns

Small, 

remote 

incinerators

Dioxin, 

furans, 

total 

(ng/dscm)

(no 

limit) 

4.6 0.52b

(bioma

ss 

units) 

/ 

0.51b

(coal 

units)

2.9b 0.51b 1,200

Dioxin, 

furans, 

TEQ 

(ng/dscm)

0.41

0.13

0.12 

(bioma

ss 

units) 

/ 

0.075b

(coal 

units)

0.32b 0.075b 57

NOx

(ppmv)

388 53 290 

(bioma

ss 

units)

/

340 

(coal 

units)

76 630 240

SO2

(ppmv)

20 11 7.3 

(bioma

ss 

units)

/

650 

(coal 

units)

720 600 420

a All emission limits are expressed as concentrations corrected to 7 percent 

oxygen. 

b See the memorandum "CISWI Emission Limit Calculations for Existing and New 

Sources for the Reconsideration Final Rule" for details on this calculation. 

Table 3. Comparison of New Source MACT Floor Limits for 2000 

CISWI Rule and the Final MACT Floor Limits 
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Pollutant 

(units)a

Incinerators 

(2000 

limit)

Final CISWI Subcategories

Incinerators ERUs - 

Solids

ERUs – 

Liquid/Gas

Wasteburning 

kilns

Small, 

remote 

incinerators

HCl (ppmv) 62 0.091 0.20c

(biomass 

units)/

21

(coal 

units)

14b 3.0b 200 

CO (ppmv) 157 17 240

(biomass 

units)/

95

(coal 

units)

35 90 (long 

kilns) / 190 

(preheater / 

precalciner)

13 

Pb 

(mg/dscm)

0.04 0.015b 0.014b

(biomass 

units) / 

0.013b

(coal 

units)

0.096 0.014b 0.26

Cd 

(mg/dscm)

0.004 0.0023 0.0014c

(biomass 

units) / 

0.058 

(coal 

units)

0.023 0.0014b 0.61c

Hg 

(mg/dscm)

0.47 0.00084b 0.0022c

(biomass 

units) / 

0.0028 

(coal 

units)

0.00091d 0.0037b 0.0035b

PM, 

filterable 

(mg/dscm)

70 18 5.1 

(biomass 

units) / 

60 (coal 

units)

110 3.2c 230c
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Pollutant 

(units)a

Incinerators 

(2000 

limit)

Final CISWI Subcategories

Incinerators ERUs - 

Solids

ERUs – 

Liquid/Gas

Wasteburning 

kilns

Small, 

remote 

incinerators

Dioxin, 

furans, 

total 

(ng/dscm)

(no 

limit) 

0.58b 0.52b

(biomass 

units) / 

0.51b

(coal 

units)

(no limit) 0.51b 1,200c

Dioxin, 

furans, 

TEQ 

(ng/dscm)

0.41 0.13 0.076b

(biomass 

units) / 

0.075b

(coal 

units)

0.093d 0.075b 31 

NOx (ppmv) 388 23 290c

(biomass 

units)/

340

(coal 

units)

76 200b 78 

SO2 (ppmv) 20 11c 7.3c

(biomass 

units)/

650 

(coal 

units)

720 130 1.2

a All emission limits are measured at 7 percent oxygen. 

b See the memorandum “CISWI Emission Limit Calculations for Existing and New 

Sources for the Reconsideration Final Rule” for details on this calculation. 

c The NSPS limit equals the EG limit. The EG limit was selected as the NSPS 

limit. 

d D/F TEQ and Hg limits for ERUs – liquid/gas were replaced with D/F TEQ 

limits for liquid fuel major source boilers. See “CISWI Emission Limit 

Calculations for Existing and New Sources for the Reconsideration Final Rule" 

for details. 

e See the memorandum "CISWI Emission Limit Calculations for Existing and New 

Sources for the Reconsideration Final Rule" for details on this calculation. 

2. Fuel Switching Provisions 
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 The EPA is finalizing the proposed fuel switching 

provisions that address the situation where CISWI units cease 

combusting solid waste, and where existing commercial and 

industrial combustion units begin combusting solid waste (40 CFR 

60.2330 for existing units and 40 CFR 60.2710 for new units). 

Units that cease combusting solid waste remain subject to CISWI 

for at least 6 months after solid waste is last added to the 

combustion chamber. After 6 months, sources must either comply 

with any applicable section 112 standard or, if they intend to 

combust solid waste in the future, opt to remain subject to 

CISWI and continue to comply with the applicable provisions. 

Combustion units located at commercial or industrial facilities 

that begin combusting solid waste are solid waste incineration 

units on the date they begin combusting solid waste. Existing 

units that begin combusting solid waste within six months of the 

effective date of the CISWI EG must comply with the standards on 

the effective date of those standards. Existing units that begin 

combusting solid waste after the effective date of the CISWI EG 

must comply with those standards at the time the unit begins 

combusting solid waste. 

3. Definitions of Cyclonic Burn Barrels, Burn-off Ovens, Soil 

Treatment Units, Laboratory Analysis Units, and Space Heaters
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 We are finalizing the proposed definitions for cyclonic 

burn barrels, burn-off ovens, soil treatment units, laboratory 

analysis units, and space heaters. The final definitions 

describe the types of units and state that these different types 

of units are not incinerators, small remote incinerators, ERUs, 

or waste burning kilns. The EPA is including these definitions 

in the final rule to differentiate these units from the units 

for which the Agency established standards in the 2011 CISWI 

rule and this final action. 

4. Affirmative Defense for Malfunction Events

 The EPA is finalizing the proposed affirmative defense to 

civil penalties for malfunction events. Sources are required to 

comply with the CISWI standards at all times, and the EPA 

recognizes that even equipment that is properly designed and 

maintained can sometimes fail and that such failure may cause an 

exceedance of the relevant standard. The affirmative defense 

provisions allow sources to avoid civil penalties for 

exceedances caused by a malfunction event if the source 

demonstrates by a preponderance of the evidence that the 

malfunction event meets the definition of malfunction in 40 CFR 

60.2 . In addition, the affirmative defense provisions are 

designed to ensure that steps are taken to correct the 
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malfunction, minimize emissions during the malfunction, and 

prevent future malfunctions. 

5. CO Monitoring Requirements

We are finalizing provisions for calculating the 30-day CO 

rolling average that allow the uncorrected CEMS reading to be 

used during the period of operation from a cold start to bring 

the combustion unit up to minimal normal operating temperature. 

We are also allowing uncorrected CEMS readings to be used in 30-

day average calculations for the period of operation following 

the last waste material being fed to the combustion unit during 

shutdown procedures of the unit. The period of time allowed for 

uncorrected CEMS data during a startup shall be 48 hours or less 

per startup event, and shall be 24 hours or less for each 

shutdown event. Sources must indicate in the CEMS data records 

which CEMS data are obtained during the startup and shutdown 

periods. Since the oxygen correction calculation will affect all 

corrected CEMS data, we have expanded these provisions in the 

final rule to allow for uncorrected CEMS data for any pollutant 

that sources elect to measure continuously with CEMS and 

calculate 30-day rolling averages to demonstrate continuous 

compliance. 

 Additionally, we have finalized removal of continuous CO 

monitoring requirements for new and existing ERU units. We are 
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instead requiring annual CO stack tests and continuous oxygen 

monitoring and we are allowing CO monitoring with CEMS as a 

compliance alternative. We have also removed the continuous CO 

monitoring requirements for new CISWI units in the other 

subcategories, but sources may demonstrate compliance using CO 

CEMS if they so choose. The authority to use uncorrected CEMS 

data during startup and shutdowns discussed above applies to all 

CISWI sources that elect to demonstrate compliance with any 

emission limits with a CEMS instead of performing annual stack 

tests. Changes to the CO and other optional CEMS monitoring 

requirements made since proposal are discussed below in Section 

IV of this preamble: “Summary of Significant Changes Since 

Proposal.” 

6. Full-load Stack Test Requirement for CO Coupled With 

Continuous Oxygen Monitoring 

We are finalizing the full-load stack test and continuous 

oxygen monitoring provisions in today’s action that afford the 

ability for existing sources to use their current oxygen 

analyzer and oxygen trim systems to demonstrate continuous 

compliance. Based on comments received, we have made some 

clarifying changes to these provisions to be clear that existing 

oxygen trim systems and oxygen monitors may be used to 

demonstrate continuous compliance, as well as clarifications on 
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establishing the operating limits for oxygen content. Changes to 

the continuous oxygen monitoring requirements made since 

proposal are discussed below in Section IV of this preamble: 

“Summary of Significant Changes Since Proposal.” 

7. Non-detect Methodology Using Three Times the Detection Level

 Since proposal, the EPA continued its review of sampling 

volumes and detection levels across various emission testing ICR 

efforts on various combustion sources to encompass additional 

pollutants measured using EPA Reference Method 29 (See 

memorandum “Updated data and procedure for handling below 

detection level data in analyzing various pollutant emissions 

databases for MACT and RTR emissions limits” in the CISWI 

docket). As a result of this analysis, we have determined 

recommended values for three times the Reference Detection Level 

(RDL) that may be used as a minimum emission limit value that 

can be accurately measured by most laboratories for cadmium and 

lead.3

 

Furthermore, based on comments on our application of this 

non-detect methodology approach to CO data measured using 

instrument methods, we have made some necessary modifications to 

the span calculation approach used in the proposed rule. Changes 

 

3

 The RDL methodology is consistent with the RDL methodology outlined in the 

December 2011 reconsideration proposal. 76 FR 80463. 
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to the emission limits for cadmium, lead, and the span 

adjustment calculations for CO made since proposal are discussed 

below in Section IV of this preamble: “Summary of Significant 

Changes Since Proposal.” 

8. Definitions for Foundry Sand Thermal Reclamation Unit and 

Chemical Recovery Unit

We are finalizing the proposed definitions of “foundry sand 

thermal reclamation unit” and “chemical recovery unit” to 

clarify that these units are not incinerators, waste-burning 

kilns, ERUs or small, remote incinerators under subparts CCCC or 

DDDD. 

9. Definition of Contained Gaseous Material

 In today’s final rule, we are finalizing the definition for 

“contained gaseous material” found in the 2000 CISWI rule as 

proposed. 

10. Parametric Monitoring Provisions for Additional Control 

Device Types

 In the proposed rule, we requested comment on whether there 

were additional control device types that we should identify 

monitoring parameters for in the rule. We received comments on 

this topic and, in today’s final rule, are including monitoring 

provisions for sorbent injection rate for dry scrubber control 

devices (40 CFR 60.2165 and 40 CR 60.2730). We have also 
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clarified that sources that elect to use optional CEMS to 

monitor continuous compliance for mercury, dioxin/furans, or 

nitrogen oxides may do so as a substitute for parametric 

monitoring of activated carbon injection and selective 

noncatalytic reduction control devices, respectively. Changes to 

the parametric monitoring provisions made since proposal are 

discussed below in Section IV of this preamble: “Summary of 

Significant Changes Since Proposal.” 

11. Particulate Matter Continuous Monitoring Provisions for 

Large ERUs and Waste-burning Kilns

In today’s rule, we are finalizing some revisions to the 

monitoring requirements for ERUs with an annual average heat 

input rate greater than 250 MMBtu/hr and extending the same 

particulate matter continuous monitoring provisions to wasteburning kilns. In the final 2011 CISWI rule, these units were 

required to monitor continuously for PM using a PM CEMS; 

however, the PM CEMS technology may not be sufficient to certify 

accurate monitor performance in the PM concentration range of 

the CISWI ERU and waste-burning kiln limits. Therefore, we are 

requiring continuous parameter monitoring systems for these 

units similar to those being required for major industrial 

boilers and utility boilers. To be consistent with these other 

boiler rules, we have revised all operating parameter averaging 
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for ERU units to be on a 30-day rolling average. Changes to the 

particulate matter continuous monitoring provisions made since 

proposal are discussed below in Section IV of this preamble: 

“Summary of Significant Changes Since Proposal.” 

12. Revised Definition of Waste-burning Kiln

 This final rule includes a definition of waste-burning kiln 

that has been revised since the March 2011 CISWI Rule. This 

definition helps clarify EPA’s intent regarding which types of 

Portland cement kilns are considered subject to CISWI standards 

and which kilns are subject to the Portland cement NESHAP. Since 

proposal, some additional language was added to this definition 

to further clarify our proposed definition. Changes to the 

definition of waste burning kiln made since proposal are 

discussed below in Section IV of this preamble: “Summary of 

Significant Changes Since Proposal.” 

13. Definition of Solid Waste

In the March 21, 2011, final CISWI rule, we removed the 

definition of solid waste that was present in the 2000 CISWI 

Rule in light of the definition of solid waste in the final NHSM 

rule. Because applicability of section 129 hinges on sources 

combusting solid waste, we believe it is appropriate to include 

a definition of that term in the CISWI rule. For that reason, 
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the final rule contains a definition of solid waste that refers 

to the final NHSM rule at 40 CFR 241.2. 

14. Effective Dates

In the final rule, we are revising the effective dates for 

new and existing CISWI units. The effective date for existing 

sources depends primarily on State plan approval, but may be no 

later than the date five years after publication of this final 

rule in the Federal Register. For new sources, the effective 

date is either [DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL 

RULE IN THE FEDERAL REGISTER] or the date of startup of the 

source, whichever is later. New sources are defined as sources 

that began construction on or after June 4, 2010, or commenced 

reconstruction or modification after [DATE 6 MONTHS AFTER 

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]. 

C. Summary of Significant Changes Since Proposal

1. Revision of the Subcategories

Energy Recovery Units

In the final 2011 CISWI Rule, we established separate 

subcategories based on the types of fuels and wastes ERUs were 

designed to burn. Energy Recovery Units (e.g., units that would 

be boilers and process heaters but for that fact that they 

combust solid waste) designed to burn gaseous fuels and liquids 

that are solid waste were included in one primary subcategory, 
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and the other primary subcategory was for units designed to burn 

solid fuels or predominantly non-coal solid materials. In the 

final 2011 CISWI rule, the solid fuel ERU subcategory was 

further divided into separate subcategories for coal and biomass 

units, with separate limits for CO, NOx, and SO2 to account for 

significant differences in unit design for these two types of 

fuels and the impacts the different unit designs have on 

emissions of these pollutants. 

Because the public was not afforded an opportunity to 

comment on the revision to the ERU subcategory, we identified 

this as a reconsideration issue in the March 21, 2011, notice of 

intent to reconsider certain aspects of the 2011 CISWI Rule. 

Certain petitions for reconsideration supported the further 

subcategorization of the solid-fuel ERU subcategory and 

suggested that all nine emission limits should be divided 

between coal and biomass ERUs, instead of only having different 

limits for CO, NOx and SO2. 

We granted reconsideration of our subcategorization 

approach for ERUs and proposed to establish different emission 

limits for PM, Cd, Pb, and D/F between coal and biomass units, 

in addition to establishing different limits for CO, NOx, and 
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SO2. We also solicited comment on whether we should also 

subcategorize solid-fuel ERUs for HCl and Hg. 

Based on comments and information received during the 

comment period, we have determined that it is appropriate to 

subcategorize solid fuel ERUs for all nine CAA section 129 

pollutants. We recognize that there are significant design and 

operational differences between biomass and coal ERU units that 

impact the generation of all nine regulated pollutants, and, for 

this reason, we are establishing separate emission standards for 

all nine pollutants from coal and biomass ERUs in this final 

rule. 

In addition, since issuing the proposed reconsideration 

CISWI rule, we have received data which allowed us to update our 

inventory of ERUs. The inventory adjustments we made more 

accurately reflect the definition of solid waste. Based on the 

new data, we removed three units from the final rule inventory 

of biomass ERUs that were identified as being non-waste burning 

units and re-analyzed the emission limits for the solid-biomass 

ERU subcategory. We also received additional CO emissions data 

and re-analyzed the performance of the best-performing ERU in 

the solid-coal ERU subcategory. The emission limits in this 

final rule reflect the new inventory and emission data received; 

however, we have used the same methodology as in the 2011 CISWI 
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rule and December 23, 2011, reconsideration proposal for 

establishing the emission limits. 

Waste-burning Kilns

Prior to the reconsideration proposal, the EPA performed an 

analysis of the materials being combusted in the entire 

inventory of Portland cement kilns in light of the final NHSM 

rule (See memorandum “Revised Floors without Kilns that Would 

have been CISWI Kilns Had the Solid Waste Definition Applied” in 

the CISWI docket). As a result of this analysis, we added 11 

kilns to our inventory of waste-burning kilns. In addition to 

this, we further reviewed the Portland cement emissions test 

records and identified some additional test data for kilns that 

were added to the CISWI inventory following the March 21, 2011, 

final rule publication. This newly-identified data was extracted 

and compiled into the CISWI database, and then the MACT floor 

emission limits were re-calculated in the December 23, 2011, 

proposed rule to reflect the updated inventory and additional 

data. Following proposal, we were also notified of one 

additional waste-burning kiln. We added this kiln to our 

inventory, bringing the total waste-burning kiln inventory to 24 

kilns. We recalculated the standards in this final rule to 

include all 24 waste burning kilns. 
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As with the new ERU standards, we have used the same 

methodology to establish today’s emission limits as we used for 

the final 2011 CISWI rule. We have also retained the emissions 

concentration basis for the standards. However, Table 4 of this 

preamble presents the emission limits for PM, NOx, SO2, and Hg 

on a production basis for comparison. 

Table 4. Waste-burning Kiln Emission Limits Expressed in 

Production Basis 

Pollutant (units) Existing kilnsa New kilnsa

Hg (lb/MM ton 

clinker) 

58 21 

PM (lb/ton clinker) 0.018 0.018 

NOx (lb/ton clinker) 6.7 2.1 

SO2 (lb/ton clinker) 8.9 1.9 

a. Approximate. 

2. Revisions to the Monitoring Requirements

After the March 21, 2001, final rule, petitioners 

identified computational issues for correcting CO concentration 

measurements to 7 percent oxygen for periods when the oxygen 

content of the flue gas approaches the ambient air oxygen 

content during startup and shutdown periods for sources that 

demonstrate compliance with the CO limit using CEMS. The 

equation for the 7 percent oxygen correction is X ppm CO*(20.9 – 

7)/(20.9 - %O2 of flue gas stream). As seen by this equation, as 

the flue gas stream oxygen content gets closer to 20.9, the 

value of X is multiplied by an ever increasing factor. For 
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example, when the stack gas oxygen content is 4 percent, the 

factor is 0.82. If the stack gas oxygen content is 20 percent, 

the factor increases to 15.4. Therefore, a flue gas CO 

concentration reading of 100 ppm would be corrected to 82 ppm 

for a stack gas at 4 percent oxygen content, but would become a 

1,540 ppm corrected concentration for a stack gas at 20 percent 

oxygen content. In the extreme, at a 20.8 percent stack gas 

concentration (i.e., approximating ambient air oxygen content), 

the same 100 ppm measurement would be corrected to 13,900 ppm. 

Petitioners noted that oxygen contents relatively close to 

ambient air often are maintained during combustion unit startup 

and shutdown in order to safely operate the combustion unit. 

Therefore, CO readings during these periods would be multiplied 

by an uncharacteristically high correction factor, and the 

resulting corrected CO concentrations inflated due to the 7 

percent oxygen correction. Petitioners and commenters presented 

data that show these corrected data points would have the 

potential to drive the 30-day rolling average values beyond the 

emission limit for the affected units. 

Petitioners suggested various approaches to remedy this 

situation, with one being to not require the 7 percent oxygen 

correction requirement during unit startup and shutdown for 

sources that demonstrate compliance with the CO limit using 
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CEMS. In other words, the CEMS data as reported at stack gas 

concentration without oxygen correction would be included in the 

rolling average calculations for periods when the combustion 

unit is either being started up or shutdown instead of applying 

the oxygen correction to that data before it is included in the 

calculation of the 30 day rolling average. During all other 

operating periods, the CEMS data would be corrected to a 7 

percent oxygen concentration prior to calculating the rolling 

average. Stated otherwise, the data obtained during startup and 

shutdown, which will not include the 7 percent oxygen 

correction, will be added to the oxygen corrected data collected 

during all other periods to calculate the 30 day average that is 

used to determine continuous compliance with the applicable CO 

limit for sources that demonstrate compliance using CEMS. 

Prior to issuing the reconsideration proposal, we received 

data for one unit in one subcategory (coal ERUs) that indicated 

startups usually occur over a 4-hour period, and shutdowns occur 

over a 1 hour period. Therefore, we proposed provisions for 

calculating the 30-day CO rolling average that would allow the 

source to use CEMS data that does not include the oxygen 

correction to be used during the first 4 hours of operation from 

a cold start and the 1 hour of operation following the last 

waste material being fed to the combustion unit during shutdown 
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procedures of the unit. Since proposal, however, we received 

comments on this provision, primarily pointing out that longer 

periods are required to protect combustion equipment from rapid 

temperature swings, which could cause damage to the fireboxes or 

kiln surfaces. Commenters also contended that the limited 

information concerning the startup and shutdown periods during 

which the oxygen correction would not be required did not 

reflect the needs for all combustor types or control device 

configurations. We have revised the shutdown and startup period 

of operation to be more generally applicable to CISWI units and 

we determined that the startup period should include the times 

prior to the source reaching the minimal operating temperature, 

but in no case longer than 48 hours. For shutdown, we 

determined as at proposal that shutdown begins after the last 

waste has been fed to the combustor prior to shutdown, but we 

have revised the final rule to indicate that the shutdown period 

may not exceed 24 hours. We have, therefore, specified in the 

final rule an upper limit of 48 hours for startup periods to use 

uncorrected CEMS data and 24 hours for shutdown periods to use 

uncorrected CEMS data in the final rule. As at proposal, sources 

must indicate in the CEMS data records which CEMS data are 

uncorrected because they were obtained during the startup and 

shutdown period. We are also requiring in the final rule that 
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sources establish a minimum operating temperature for the unit 

during the initial performance test, through an engineering 

assessment, or based on manufacturer specifications the minimum 

operating temperature at which point sources would be required 

to begin applying the oxygen correction to the emissions data 

after startup. Sources will be required to keep records of this 

temperature and take temperature readings that correspond to the 

startup period and report that information along with the CEMS 

calculations for the 30 day rolling average. 

The oxygen correction issue described above for CO CEMS 

data collected during startup and shutdown applies equally to 

other pollutants measured with a CEMS that is corrected to 7 

percent oxygen. The final CISWI rule allows sources to 

demonstrate compliance with any of the standards using CEMS, 

and, for this reason, we have expanded authorization to use 

uncorrected CEMS data during periods of startup and shutdown to 

all pollutants for which a source demonstrates compliance with 

CEMS. In the final rule, the 7 percent oxygen correction is not 

required during startup and shutdowns discussed above applies to 

any CISWI sources that elect to demonstrate continuous 

compliance with any of the emission limits with a CEMS instead 

of performing stack tests. 

3. Oxygen Monitoring Requirements
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At proposal, we included provisions and definitions in an 

attempt to ensure that sources would be able to use existing 

oxygen monitoring systems to meet the continuous oxygen 

monitoring requirements. However, commenters identified 

potential issues with our proposed provisions and definitions. 

To address these commenters’ concerns, we have revised the 

provisions in 40 CFR 60.2165 and 40 CFR 60.2730 to clarify the 

methodology for establishing and monitoring the oxygen level. 

Furthermore, the definition of “oxygen analyzer system” has been 

revised to clarify the appropriate locations and nomenclature of 

possible existing monitoring systems so that their use to meet 

these requirements is fully enabled. 

4. Removal of the Definition of Homogeneous Waste

The EPA included in the final 2011 CISWI Rule a definition 

of homogenous waste and a process for evaluating claims that a 

particular waste stream is homogenous. The definition was added 

to the 2011 CISWI rule in response to comment. Because the 

determination of homogeneity of a waste stream is relevant to 

applicability of CAA section 129 to qualifying small power 

producers and qualifying cogeneration facilities, we determined 

it was reasonable to include a definition of “homogenous waste” 

and a process by which sources could obtain a determination that 

a waste stream is homogenous from the EPA. 
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In the 2011 CISWI Rule, the EPA stated that a determination 

concerning whether a waste is homogeneous is made on a case-bycase basis. The EPA added provisions to the CISWI final rule 

that requires source owners or operators seeking the exemption 

from the definition of solid waste incineration unit contained 

in CAA section 112(g)(1)(B) to submit a request for a 

homogeneous waste determination to the EPA. The rule required 

the request to include information describing the materials to 

be combusted and why they believe the waste is homogeneous. The 

2011 CISWI rule also indicated that the determination of what 

constitutes a homogeneous waste is not delegable to the state or 

local agencies. In the December 23, 2011, reconsideration 

proposal, we proposed the definition of “homogeneous waste” and 

the provisions for making homogeneous waste determinations that 

were included in the 2011 CISWI rule. 

Commenters generally did not agree with the proposed 

definition, arguing that the definition introduced ambiguities 

and stipulations that would prevent classification of many 

materials (including fossil fuels) as being “homogeneous.” We 

reevaluated the definition in light of the comments and 

determined that the definition was unduly restrictive; however, 

we also determined that commenters proposed alternative 

definitions were equally problematic. We further recognized that 
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due to the variability of waste and the fact specific nature of 

these determinations that a definition of homogenous waste was 

neither necessary nor preferable. Therefore, the final rule does 

not include a definition of “homogeneous waste”. We are 

retaining, however, the requirement that qualifying small power 

producers and qualifying cogeneration facilities that combust 

solid waste obtain a determination from the EPA such waste is 

homogenous. (40 CFR 60.2020 and 40 CFR 60.2555). 

5. Non-detect Methodology Using Three Times the Detection Level

Prior to reconsideration proposal, the EPA conducted a 

review of sampling volumes and detection levels across various 

emission testing ICR efforts on various combustion sources (See 

memorandum “Updated data and procedure for handling below 

detection level data in analyzing various pollutant emissions 

databases for MACT and RTR emissions limits” in the CISWI 

docket). As a result of this analysis, we determined recommended 

values for three times the RDL (3xRDL) that may be used as a 

minimum emission limit value that can be accurately measured by 

most laboratories. These recommended values were then compared 

with calculated emission limits and, if the calculated limit was 

less than the recommended 3xRDL, the 3xRDL value was selected as 

the limit. Since the December 23, 2011 reconsideration proposal 

was published, we have continued our review and determined 3xRDL 
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values for additional metals measured using EPA Reference Method 

29. These include recommended values for Cd and Pb, and we have 

applied this methodology to those emission limits in addition to 

the D/F and Hg limits that were re-evaluated in the 

reconsideration proposal. As discussed in the reconsideration 

proposal, the premise for this approach is the same as described 

in the final 2011 CISWI rule, but using a broader data set to 

establish the 3xRDL value. We have not changed the methodology 

of the emission limit calculation or tabulation of the three 

times the detection limit value that was used in the final 2011 

CISWI rule. 

Since reconsideration proposal, some commenters have noted 

that the EPA Method 5 minimum catch values were below levels 

established in similar studies on this reference method. In 

light of these comments, we have reconsidered the 1 mg minimum 

catch value used in the reconsideration proposal and are now 

using a 2 mg minimum catch in establishing the final rule 

emission limits. Our review and determination of the 2 mg 

minimum catch are discussed in “EPA Memo from Ray Merrill on PM 

RDL” in the CISWI docket. 

In a similar fashion, the CO span adjustment methodology 

has been further refined in consideration of comments on the 

approach used to adjust CO instrumental test methods readings in 
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reconsideration proposal. The methodology for adjusting CO 

emission test run data to reflect the limitations from the 

instrument span used at testing is described in the “CISWI 

Emission Limit Calculations for Existing and New Sources for the 

Reconsideration Final Rule" memorandum in the CISWI docket. 

6. Parametric Monitoring for Additional Control Device Types

In the December 23, 2011, reconsideration proposal, we 

stated that we believed the control devices with monitoring 

provisions expressly identified in the rules should encompass 

most types of control devices that we anticipate the various 

types of CISWI units will use to meet the emission limits. 

However, recognizing that a source might want to employ another 

type of control that is not addressed, we provided provisions 

for sources to petition for specific operating limits for 

alternative control devices to be established during a 

performance test. These provisions also allow specific operating 

limits to be established for CISWI units without any air 

pollution control devices, such as for units that employ 

material balance operating limits in conjunction with periodic 

stack testing to demonstrate continuous compliance. 

We also determined that dry sorbent injection (or dry 

scrubbers) may be one type of additional control device that 

CISWI units may widely use to control acid gases. Commenters 
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agreed with our statement and encouraged the EPA to identify 

operating parameters for dry scrubbing systems in the final 

rule. We have done so, by both defining “dry scrubber” in the 

rule, and specifying that the sorbent injection rate must be 

monitored and maintained at or above the operating rate 

established during the hydrogen chloride performance test (40 

CFR 60.2165 and 40 CFR 60.2730). 

Also regarding monitoring, we determined after proposal 

that we had not clarified in the rule that sources opting to use 

CEMS to measure NOX, Hg or D/F were not required to monitor 

activated carbon injection rates (for Hg and D/F CEMS-equipped 

units) or SNCR parameter monitoring (for NOX CEMS-equipped 

units). Our intent had been to not require applicable control 

device parameter monitoring if a CEMS was in use for the 

pollutant being controlled by the device. Control device 

parameter monitoring is an acceptable and established method for 

determining continuous compliance, and it is appropriate to 

require such monitoring when coupled with period stack testing. 

However, direct, continuous emission measurements with a CEMS 

are sufficient for determining compliance for CISWI units, 

without requiring parametric monitoring. In cases where CEMS 

data are available to directly measure regulated pollutants, 

operating parameter data would be duplicative. 
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7. Particulate Matter Continuous Monitoring Provisions for Large 

ERUs and Waste-burning Kilns

 In today’s rule, we are finalizing the proposed monitoring 

requirements for ERUs with an annual average heat input rate 

greater than 250 MMBtu/hr. As we stated in the proposal, recent 

EPA experience with the utility boiler source category has led 

the EPA to allow PM CEMS as an alternative, rather than a 

requirement. The PM CEMS technology may not be sufficient to 

certify accurate monitor performance in the PM concentration 

range of the CISWI ERU limits. In related ongoing work on the 

Portland cement source category, we realize that similar 

concerns regarding PM CEMS are applicable. Therefore, we are 

also removing PM CEMS (PS-11) requirements for waste-burning 

kilns, and instead, requiring continuous parameter monitoring 

systems for these units similar to those being required for 

major industrial boilers and utility boilers. To be consistent 

with these other rules, we have incorporated 30-day rolling 

averages to be measured with PM CPMS. 

8. Effective Dates

At reconsideration proposal, we proposed to extend the 

effective dates for existing units in the incinerator, ERU, and 

waste-burning kiln subcategories. We are finalizing the revision 

of the effective dates for those three subcategories and, based 
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on comments received during the comment period, we are also 

extending the effective date for units in the small remote 

incinerator subcategory. Comments on extending the effective 

date for small remote incinerators and our responses to these 

comments are found in the “Summary of Comments and Responses to 

the CISWI Reconsideration” document in the CISWI docket. 

The effective date for existing CISWI sources subject to 

standards in this final rule is 5 years after the date of 

publication of this final rule or 3 years after the state plan 

is approved, whichever happens earlier. This date is being 

finalized in order to provide facilities sufficient time to 

install controls or to make other compliance-related decisions. 

For new sources, the EPA is finalizing the proposed change of 

the effective date to 6 months after the date of publication of 

the final reconsideration rule or at startup, whichever is 

later. 

9. Definition of Waste-burning Kiln

 In the December 23, 2011 reconsideration proposal, we 

proposed revisions to the definition of “waste-burning kiln” to 

indicate that the term “does not include a kiln that is feeding 

non-hazardous secondary ingredients exclusively into the cold 

end of the kiln.” In proposing this language, the EPA intended 

to codify principles set out in a previous action granting and 
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denying reconsideration of the NESHAP for Portland cement kilns. 

See 76 FR 28318, 28322 (May 17, 2011); see also Memorandum 

“Revised Floors Without Kilns That Would Have Been CISWI Kilns 

Had the Solid Waste Definition Applied” (EPA, April 25, 2011) 

(which memorandum is summarized in the May 17 Federal Register 

notice). The May 17 notice and April 25 memorandum state in 

essence that combustion does not occur in any region of a cement 

kiln except the hot end, and that cement kiln dust added to the 

hot end of a cement kiln also is not combusted since it is 

inorganic and essentially inert. 

The language used at proposal captured some but not all of 

these principles, since it refered only to the “cold end” of a 

cement kiln, as pointed out by a number of commenters. The EPA 

is revising the definition in the final rule to accurately 

reflect the May 17 preamble and April 25 Memorandum discussion 

of when combustion occurs in a cement kiln. In addition, we are 

adding the fact that combustion in a cement kiln does also take 

place in the combustion zone of a precalciner or riser duct 

burner. 

 One further clarification is appropriate. The May 17 

preamble contains one reference to legitimacy criteria for 

determining when a secondary material is being recycled. 76 FR 

at 28322/1-2. The threshold issue for determining if a unit is 
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subject to section 129 is whether it “combusts” solid waste 

material (see section 129 (g)(1)). For cement kilns, this 

determination does not turn on legitimacy of recycling, but 

rather on the nature of the cement kiln process. Consequently, 

if combustion of solid waste is not occurring, a unit is not a 

CISWI, irrespective of whether or not legitimate recycling is 

occurring. 

D. Technical Corrections and Clarifications

 We are also including some technical corrections and 

clarifications in the final rule, as outlined below: 

 Operating parameter limits during performance testing – 

While we believe it is intrinsic that established operating 

parameter limits do not apply during subsequent performance 

testing, we are providing language in the NSPS and emission 

guidelines to clarify that they are waived during 

performance testing (40 CFR 60.2145(c) and 40 CFR 

60.2710(c)). 

 Bypass stacks on waste-burning kilns – While not included 

in the final rule text, we are clarifying here that the 

definition of “bypass stack” in today’s final rule does not 

have the same meaning as an “alkali bypass” used by some 

waste-burning kilns that manufacture Portland cement. 

 Clarifying that, consistent with CAA section 129(f)(1), 

June 4, 2010 is the appropriate new source applicability 

date in 40 CFR 60.2015(a)(1). 

 Revising the title of Table 2 to subpart DDDD to clarify 

that these emission limits apply to incinerators which are 

currently subject to CISWI emission limits promulgated in 

the 2000 CISWI rule. 

 Clarifying that petitions for specific operating limits for 

control devices not listed in this subpart must be 

submitted to the Administrator at least 60 days before the 
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performance test is scheduled to begin(40 CFR 60.2115 and 

40 CFR 60.2680). 

 Providing definitions of “30-day rolling average” and 

“responsible official” to clarify what is meant by these 

terms. 

 Adding text to the provisions for particulate matter 

monitoring provisions for ERUs to clarify that the 250 

MMBtu/hr threshold is based upon the average annual heat 

input rate, consistent with how this threshold is applied 

in the industrial boiler NESHAP. 

 Revising the affirmative defense text to clarify that these 

provisions apply to violations of standards, and to further 

clarify the reporting timeline and requirements for sources 

seeking to assert an affirmative defense (40 CFR 60.2120 

and 40 CFR 60.2685). 

 Revising the recordkeeping provisions in 40 CFR 60.2175(v) 

and 40 CFR 60.2740(u) to reflect the categorical non-waste 

determination provisions of 40 CFR 241.4. 

 Revised the electronic reporting provisions in 40 CFR 

60.2235 and 40 CFR 60.2795 to clarify the timing and 

mechanism for submitting these reports and to be consistent 

with the electronic reporting language in more recent 

rulemakings. 

E. Major Public Comments and Responses

 We have included some of the major comment topics and our 

responses below in the preamble. All other comments and 

responses are provided in the “Reconsideration Response to 

Public Comments Document” in the CISWI docket. 

Solid-fuel ERU Subcategorization

Comment: Several commenters support the proposed separate coal 

and biomass standards for D/Fs, CO, NOx , SO2, PM, Cd, and Pb. 

However, these commenters further urge the EPA to establish 
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separate standards for HCl and Hg for coal and biomass. 

Commenters state that the EPA’s recognition that design and 

operational differences between combustors designed to combust 

coal and those designed to combust biomass is evidence to 

support subcategorizing emission limits for all pollutants. One 

commenter discussed differences in biomass and coal fuel rank, 

and the significant boiler design differences in furnace height 

and volume that exist between units designed to combust 

different fuel ranks of coal-fired boiler furnaces. As an 

example, one commenter noted that a low-rank coal (high slagging 

lignite) furnace can be 1.65 times the plan area, and 1.45 times 

the furnace height, of a similar capacity furnace combusting a 

high rank coal (medium volatile bituminous). The commenter 

stated that this large difference is even among varying grades 

of coal, with biomass units being fuels of even lower rank than 

lignite. Therefore, according to the commenter, furnace area and 

height (and hence, volume) are significantly different between 

energy recovery units designed to combust coal and those 

designed for biomass combustion. The commenter highlighted an 

analysis of their existing boilers to see the feasibility of 

substituting biomass for coal. The commenter’s results indicated 

that, due to fundamental design attributes of their coal-fired 

units, they could only co-fire up to 20 percent biomass in the 
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units. The commenter explained that this limitation was due to 

design issues pertaining to the unit being designed for coal, 

such as superheater tube spacing, number and location of soot 

blowers, fouling characteristics of biomass ash, and the impact 

the high moisture levels of biomass fuels have on fan capacity. 

The commenter stated that these findings further support that 

coal and biomass are not interchangeable within ERUs, and 

therefore supports subcategorizing emission limits between the 

two types of unit. The commenter also contended that the EPA 

acknowledged significant design differences and their impacts on 

Hg emissions during development of the Utility MACT Final Rule. 

The commenter urges the EPA to take a similar approach in CISWI. 

One commenter agreed with differentiation between coal-fired and 

biomass ERUs, but supported keeping solid-fuel ERUs together for 

purposed of HCl and Hg emission limits. Another commenter argued 

that all of the EPA’s subcategories are unlawful and arbitrary, 

noting that their reasons for this belief were given in their 

comments on the 2010 proposal. 

Response: As stated above, the EPA is finalizing separate limits 

for all nine pollutants for biomass and coal ERUs. Several 

commenters identified additional details regarding differences 

in design between energy recovery units designed to combust 

biomass and those designed to combust coal exist. One commenter 
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brings up very valid points on differences in furnace sizing, 

indicating that biomass boilers have significantly larger 

volumes than comparable capacity coal units. Furthermore, we 

agree with the commenter concerning differences in moisture 

content between biomass and coal-fired units. We reviewed data 

in the CISWI database, and see that the stack gas moisture 

content of coal-fired energy recovery units is around 11.6 

percent, and is about 19.2 percent for the biomass energy 

recovery units. We have considered these technical arguments, 

among other technical differences we have previously considered 

in our decision to subcategorize energy recovery units, and how 

these design differences impact pollutant emission 

characteristics of the ERU. As a result, we have determined that 

subcategorizing all nine pollutant emission limits between coal 

and biomass solid-fuel ERUs is appropriate for the final CISWI 

rule. 

 One commenter supported the differentiation between coal 

and biomass, but in keeping HCl and Hg limits together. However, 

for the reasons given above, we have determined that all nine 

pollutants should be subcategorized. We note that comments on 

subcategorization that were submitted on the 2010 proposal have 

already been responded to. 

Homogeneous Waste Definition
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Comment: Several commenters contend that the proposed definition 

of “homogeneous waste” is too strict and inflexible. Commenters 

argue that traditional fuel, such as coal, would not even meet 

the definition since traditional fuels typically have some 

degree of variability of composition. 

Commenters further argue that the result of the proposed 

definition of “homogeneous waste” is contrary to Congress’ 

intent. Commenters assert that “homogeneous” should mean that 

all the materials are generated from the same type of production 

process and is material specific. Several commenters also oppose 

the additional conditions on mixtures of homogeneous wastes as 

having to be conditioned or processed. Some commenters also 

believe that multiple different homogenous wastes may be 

combusted at the same time, meaning a facility can combust 

railroad ties, traditional coal, treated seed and resonated wood 

at the same time and still qualify as burning “homogeneous 

waste.” 

Response: As stated above, we are removing the proposed 

definition of homogenous waste and we are not including a 

revised definition in the final rule for the reasons discussed 

above in Section IV of this preamble. “Summary of Significant 

Changes Since Proposal”. 
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 We do not believe the commenters’ suggested definitions are 

appropriate or workable and could have the unintended result of 

making almost any waste stream or combination of waste streams 

homogenous. We also believe commenters have failed to provide 

sufficient support for their claims that their proposed 

definitions are consistent with the statutory intent. We believe 

that case-by-case determinations are the appropriate approach 

given the inherent variability of waste streams. 

 While we are removing the definition of homogenous waste 

from the final rule, we are retaining the requirement for 

sources to obtain a homogenous waste determination in order to 

qualify for the exemption for qualifying small energy producers 

and qualifying cogeneration facilities. We are also retaining 

the recordkeeping provisions to ensure that sources adequately 

provide and maintain evidence that they qualify for the 

exemption. 

Contained Gaseous Material

Comment: Commenters support the EPA retaining the 2000 CISWI 

rule’s definition of “contained gaseous material.” Some 

commenters believe that the EPA should expressly include the 

definition of “contained gaseous material” in the amendatory 

text to confirm that the definition is back in the CISWI rule. 
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Response: As proposed, we are retaining the definition of 

“contained gaseous material” found in the 2000 CISWI Rule in 

today’s final rule. We disagree with commenters that state the 

definition was not in the proposed rule. The basis of the 

amendatory text remains the 2000 CISWI rule - not the 2011 CISWI 

rule - because the 2011 CISWI rule has not yet been codified in 

the Code of Federal Regulations. Therefore, by not including the 

amendatory instruction to delete the definition in the 2000 

rule, we have retained the definition as contained in the 2000 

CISWI rule. 

Oxygen Correction During Startup and Shutdown

Comment: Commenters generally support allowing the use of 

uncorrected CEMS data during startup and shutdown. Several 

commenters are concerned that the four‐hour startup and a onehour shutdown period (derived from a single coal fired unit) are 

not sufficient for all the CISWI unit types and technologies. 

Other commenters believe there should be no time limitations on 

shutdown and startups. One commenter, however, believes the 

proposed time limit is appropriate. Some commenters recommend 

using the Boiler MACT rule approach using load to define when 

the O2 corrections do not apply. 

Commenters also urge the EPA to eliminate the O2 correction 

for all CEM-measured emission limits, not just CO, during 
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startup and shutdown periods. Commenters also support making 

this allowance available to all types of CISWI unit, not only 

ERUs. 

Response: In today’s final rule, we are retaining the 

provision that allows sources to use uncorrected CO CEMS data 

during periods of startup and shutdown. Based on comments and 

the technical justifications for allowing the use of uncorrected 

CEMS data identified during the comment period, we are expanding 

this provision to any pollutant for which continuous compliance 

is being determined using CEMS as explained above in “Section 

IV: Summary of Significant Changes Since Proposal.” 

F. What other actions are we taking?

In this final action, we are denying requests for 

reconsideration on all issues contained in the petitioners’ 

requests for reconsideration that we did not include in the 

December 23, 2011, proposed rule. The issues for which we are 

denying reconsideration failed to meet the standard for 

reconsideration under CAA section 307(d)(7)(B) and we determined 

that reconsideration was not otherwise appropriate. 

Specifically, on these issues, the petitioner has failed to show 

the following: That it was impracticable to raise their 

objections during the comment period; or that the grounds for 
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their objections arose after the close of the comment period; 

and/or that their concern is of central relevance to the outcome 

of the rules. We have concluded that no clarifications to the 

underlying rules are warranted for the 19 remaining petitioners’ 

issues for the reasons set forth in the memorandum titled 

“Denied CISWI Petition Issues” found in the CISWI docket. The 

following issues are addressed in that memorandum. 

 Work practice standards should be used for 

startup/shutdowns and malfunctions. 

 Exempt or revise limits for units combusting de minimis 

amounts of waste. 

 Clarify applicability of CISWI standards to marine vessel 

units or units located on the outer continental shelf. 

 Clarify applicability to temporary or portable units. 

 Reduce performance testing requirements to be more 

consistent with requirements of other rules. 

 Provide allowance for varying operating parameter limits 

with varying operating load. 

 Reconsider elimination of provisions that allow missing 

CEMS data. 

 Revise or remove maximum and minimum operating load and 

other control device parameters. 

 Do not include emissions data for combination boiler units. 

 CISWI does not satisfy CAA 112(c)(6) requirements for POM 

and PCB. 

 MACT floor statistical approach concerns. 

 MACT floor must reflect the average, the UPL is not the 

same as the average emission level. 

 MACT floor pollutant-by-pollutant approach concerns. 

 Non-detect methodology is unlawful. 

 Beyond-the-floor analysis is unlawful and arbitrary. 
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 Compliance cost and wildlife concerns for small remote 

incinerators. 

 “Refinery gas” definition should be included in the CISWI 

rule. 

 Startup and shutdown periods should be expanded to include 

non-steady state periods. 

 Clarify that construction and demolition wood is not a 

solid waste. 

G. What are the impacts associated with the amendments?

1. What are the primary air impacts?

We have estimated the potential emissions reductions from 

existing sources that may be achieved through implementation of 

the emission limits. However, we realize that some CISWI owners 

and operators are likely to determine that alternatives to waste 

incineration are viable, such as further waste segregation or 

sending the waste to a landfill or MWC, if available. In fact, 

sources operating incinerators, where energy recovery is not a 

goal, may find it cost-effective to discontinue use of their 

CISWI unit altogether. Therefore, we have estimated emissions 

reductions attributable to existing sources complying with the 

limits, as well as those reductions that would occur if the 

facilities with incinerators and small, remote incinerators 

decide to discontinue the use of their CISWI unit and use 

alternative waste disposal options. 

For units combusting wastes for energy production, such as 

ERUs and waste-burning kilns, the decision to combust or not to 
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combust waste will depend on several factors. One factor is the 

cost to replace the energy provided by the waste material with a 

traditional fuel, such as natural gas. Another factor would be 

whether the owner or operator is purchasing the waste or 

obtaining it at no cost from other generators, or if they are 

generating the waste on-site and will have to dispose of the 

materials in another fashion, such as landfills. Lastly, these 

units would have to compare the control requirements needed to 

meet the CISWI emission limits with those needed if they stop 

burning solid waste and are then subject to a NESHAP instead. As 

mentioned before, we have attempted to align the monitoring 

requirements for similar non-waste-burning sources as closely as 

possible in an effort to make them consistent and to help 

sources make the cross-walk between waste and non-waste 

regulatory requirements as simple as possible. 

The emissions reductions that would be achieved under this 

final rule using the definition of solid waste under RCRA and 

the proposed CISWI emission limits are presented in Table 5 of 

this preamble. 

Table 5. Emissions Reductions for MACT Compliance and 

Alternative Disposal Options for Existing CISWI Using the 

Emission Limits 
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Pollutant 

Reductions 

achieved through 

meeting MACT 

(ton/yr) 

Reductions achieved 

assuming incinerators and 

small, remote 

incinerators use 

alternative disposal 

(ton/yr)a

HCl 781.3 793.4 

CO 22,667 22,632 

Pb 2.60 2.61 

Cd 1.783 1.784 

Hg 0.365 0.369 

PM (filterable) 2,398 2,402 

dioxin, furans 0.00010 0.000103 

NOx 7,127 7,234 

SO2 7,287 7,338 

Total 40,265 40,403 

a The estimated emission reduction does not account for any 

secondary impacts associated with alternate disposal of diverted 

ERU fuel. 

The EPA expects that many existing CISWI owners and 

operators may find that alternate disposal options are 

preferable to complying with the standards for the incinerator 

and small, remote incinerator subcategories. Our experience with 

regulations for MWC, HMIWI and, in fact, CISWI, has shown that 

negative growth in the source category historically occurs upon 

implementation of CAA section 129 standards. Since CISWI rules 

were promulgated in 2000 and have been in effect for existing 

sources since 2005, many existing units have closed. At 

promulgation in 2000, the EPA estimated 122 units in the CISWI 

population. In comparison, the incinerator subcategory in this 

rule, which contains any such units subject to the 2000 CISWI 
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rule, has 28 units. The EPA is not aware of any construction of 

new units since 2000, so we do not believe there are any units 

that are currently subject to the 2000 CISWI NSPS. The revised 

CISWI rule is more stringent, so we expect this trend to 

continue. However, the EPA does recognize that some facilities 

may opt to replace aging incinerator units with new units where 

it is cost-effective or alternative disposal options are not 

feasible, as may be the case with some incinerators, or in very 

remote locations. We estimate that there could be one new 

incineration unit within the next 5 years following this final 

rule, and possibly five new small remote incinerators within 

that time. In these cases, we have developed model CISWI unit 

emissions reduction estimates for these subcategories using the 

current existing unit baseline, based on average emission 

concentration values and sizes from our current inventory and 

the new source emission limits. Table 6 of this preamble 

presents the model plant emissions reductions that are expected 

for new sources. 

Table 6. Emissions Reductions on a Model Plant Basis 

Pollutant 

Emission reduction for CISWI Subcategory Model 

Units (tpy unless otherwise noted) 

Incinerator 

Small, remote 

incinerator 

HCl 2.62 0.0 

CO 0.0 6.12 

Pb 0.59 0.10 
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Pollutant 

Emission reduction for CISWI Subcategory Model 

Units (tpy unless otherwise noted) 

Incinerator 

Small, remote 

incinerator 

Cd 0.15 0.018 

Hg 0.0027 0.00032 

PM 

(filterable) 

106 13.7 

D/F (total 

mass)a

0.0012 0.0 

NOx 11.6 4.00 

SO2 5.5 4.09 

Total 127 28.1 

a D/F estimates are given in lb/yr. 

We do not anticipate that any new energy recovery or wasteburning kiln units will be constructed and will instead use 

alternative waste disposal methods or alternative fuels that 

will not subject them to the CISWI rule. For example, whole 

tires obtained from approved tire management programs and tirederived fuel from which the metal has been removed is not 

considered solid waste under the definition of solid waste. 

Consequently, new cement kiln owners will assess their 

regulatory requirements under CISWI for burning whole tires or 

tire-derived fuel that does not have metals removed against the 

costs associated with removing the metal or obtaining tires from 

an approved source and complying with the applicable NESHAP 

instead of the CISWI rule. Our research suggests that metal 

removal is routinely practiced and that several state waste tire 
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management programs are already in place, and would most likely 

be a viable option for new kiln owners so that they would not be 

subject to the CISWI regulations. Indeed, we expect that all 

existing cement kilns that are classified as being waste-burning 

solely due to whole tires will, by the effective date for the 

CISWI standards, find a way to obtain their tires through an 

approved tire management plan. Likewise, new sources could 

engineer their process to minimize waste generation in the first 

place, or to separate wastes so that the materials sent to a 

combustion unit would not meet the definition of solid waste to 

begin with. For waste that is generated, our cost analyses have 

found that alternative waste disposal is generally available and 

less expensive. 

2. What are the water and solid waste impacts?

In our analysis, we have selected the lowest cost 

alternative (i.e., compliance or alternative disposal) for each 

facility. We anticipate affected sources will need to apply 

additional controls to meet the emission limits. These controls 

may use water, such as wet scrubbers, which would need to be 

treated. We estimate an annual requirement of 71 billion gallons 

per year of additional water would be required as a result of 

operating additional controls or increased sorbent use. 
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Likewise, the addition of PM controls or improvements to 

controls already in place will increase the amount of 

particulate collected that will require disposal. Furthermore, 

ACI may be used by some sources, which will result in additional 

solid waste needing disposal. The annual amounts of solid waste 

that would require disposal are anticipated to be approximately 

29,484 tpy from PM capture and 18,734 tpy from ACI. 

Perhaps the largest impact on solid waste would come from 

owners and operators who decide to discontinue the use of their 

CISWI unit and instead send waste to the landfill or MWC for 

disposal. Based on tipping fees and availability, we would 

expect most, if not all, of this diverted waste to be sent to a 

local landfill. As we discuss above, it may be that a good 

portion of the incinerators would determine that alternative 

disposal is a better choice than compliance with the standards. 

We estimate that approximately 110,417 tpy of waste would be 

diverted to a landfill. 

For new CISWI units, we estimate an annual requirement of 

9,102 million gallons per year of additional water would be 

required as a result of operating additional controls. The 

annual amounts of solid waste that would require disposal are 

anticipated to be approximately 10,850 tpy from PM capture and 

14,088 tpy from ACI. 
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3. What are the energy impacts?

The energy impacts associated with meeting the emission 

limits would consist primarily of additional electricity needs 

to run added or improved air pollution control devices. For 

example, increased scrubber pump horsepower may cause slight 

increases in electricity consumption and sorbent injection 

controls would likewise require electricity to power pumps and 

motors. In our analysis, we have selected the lowest cost 

alternative (i.e., compliance or alternative disposal) for each 

facility. By our estimate, we anticipate that an additional 

218,869 MW-hours per year would be required for the additional 

and improved control devices. 

As discussed earlier, there could be instances where owners 

and operators of ERUs and waste-burning kilns decide to cease 

burning waste materials. In these cases, the energy provided by 

the burning of waste would need to be replaced with a 

traditional fuel, such as natural gas. Assuming an estimate that 

50 percent of the energy input to ERUs and kilns are from waste 

materials, an estimate of the energy that would be replaced with 

a traditional fuel if all existing units stopped burning waste 

materials, is approximately 56 TBtu/yr. 

For new CISWI units, we anticipate that 511 MW-hours per 

year would be required for additional and improved control 
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devices. Since we do not anticipate any new energy recovery or 

waste-burning kiln units to be constructed, there would be no 

additional estimate for energy that would be replaced with a 

traditional fuel. 

4. What are the secondary air impacts?

For CISWI units adding controls to meet the emission 

limits, we anticipate minor secondary air impacts. The 

combustion of fuel needed to generate additional electricity and 

to operate RTO controls would yield slight increases in 

emissions, including NOx, CO, PM and SO2 and an increase in CO2

emissions. Since NOx and SO2 are covered by capped emissions 

trading programs, and methodological limitations prevent us from 

quantifying the change in CO and PM, we do not estimate an 

increase in secondary air impacts for this rule from additional 

electricity demand. 

We believe it likely that the incinerators may elect to 

discontinue the use of their CISWI unit and send the waste to 

the landfill or other disposal means. As we discussed in the 

solid waste impacts above, this could result in approximately 

110,417 tpy of waste going to landfills. By using the EPA’s 

Landfill Gas Estimation Model, we estimate that, over the 20-

year expected life of a CISWI unit, the resulting methane 
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generated by a landfill receiving the waste would be about 

96,300 tons. If this landfill gas were combusted in a flare, 

assuming typical flare emission factors and landfill gas 

chlorine, Hg, and sulfur concentrations, the following emissions 

would be expected: 20 tons of PM; 8 tons of HCl; 16 tons of SO2; 

890 tons of CO; 46 tons of NOx; and 1.4 lbs of Hg. 

Similar to existing units, we anticipate minor secondary 

air impacts for new CISWI units adding controls as discussed 

above. 

5. What are the cost and economic impacts?

We have estimated compliance costs for all existing units 

to add the necessary controls and monitoring equipment, and to 

implement the inspections, recordkeeping and reporting 

requirements to comply with the final CISWI standards. We have 

also analyzed the costs of alternative disposal for the 

subcategories that may have alternative options to burning 

waste, specifically for the incinerators and the small, remote 

incinerators that may have an alternative to incineration. In 

our analysis, we have selected the lowest cost alternative 

(i.e., compliance or alternative disposal) for each facility. 

Based on this analysis, we anticipate an overall total capital 
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investment of $811 million with an associated total annual cost 

of $272 million ($2008). 

Under the rule, the EPA’s economic model suggests the 

average national market-level variables (prices, productionlevels, consumption, international trade) will not change 

significantly (e.g., are less than 0.02 percent). 

The EPA performed a screening analysis for impacts on small 

entities by comparing compliance costs to sales/revenues (e.g., 

sales and revenue tests). The EPA’s analysis found the tests 

were below 3 percent for six of the nine small entities included 

in the screening analysis. 

In addition to estimating this rule’s social costs and 

benefits, the EPA has estimated the employment impacts of the 

final rule. We expect that the rule’s direct impact on 

employment will be small. We have not quantified the rule’s 

indirect or induced impacts. For further explanation and 

discussion of our analysis, see the introductory memo and 

Chapter 4 of the RIA. 

For new CISWI units, we have estimated compliance costs for 

units coming online in the next 5 years. This analysis is based 

on the assumption that one new incinerator will come online over 

5 years and one new small, remote incinerator will come online 

each year over the next 5 years. Additionally, it was assumed 
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that each model unit will add the necessary controls, monitoring 

equipment, inspections, recordkeeping, and reporting 

requirements to comply with NSPS limits. Based on our analysis, 

we anticipate an overall total capital investment of $7.6 

million over 5 years with an associated total annual cost (for 

2015) of $2.3 million. 

6. What are the benefits?

We estimate the monetized benefits of this regulatory action 

to be $460 million to $1,100 million (2008$), 3 percent discount 

rate) in the implementation year (2015). The monetized benefits 

of the regulatory action at a 7 percent discount rate are $420 

million to $1,100 million (2008$). These estimates reflect 

energy disbenefits valued at $3.8 million. Using alternate 

relationships between PM2.5 and premature mortality supplied by 

experts, higher and lower benefits estimates are plausible, but 

most of the expert-based estimates fall between these two 

estimates.4 A summary of the monetized benefits estimates at 

discount rates of 3 percent and 7 percent is in Table 7 of this 

preamble. 

 

4

 Roman, et al., 2008. Expert Judgment Assessment of the Mortality Impact of 

Changes in Ambient Fine Particulate Matter in the U.S. Environ. Sci. 

Technol., 42, 7, 2268 – 2274. 
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Table 7. Summary of the Monetized Benefits Estimates For the 

CISWI NSPS and EG in 2015 (Millions of 2008$)a,b

Pollutant 

Estimated Emission 

Reductions 

(tpy) 

Total Monetized 

Benefits 

(3% Discount 

Rate) 

Total Monetized 

Benefits 

(7% Discount 

Rate) 

PM2.5 915 $210 to $510 $190 to $460 

PM2.5 Precursors 

SO2 7,338 $220 to $530 $200 to $480 

NOx 7,234 $35 to $86 $32 to $78 

Total $460 to $1,100 $420 to $1,000 

a All estimates are for the implementation year (2015) and are rounded to two 

significant figures so numbers may not sum across rows. All fine particles 

are assumed to have equivalent health effects, but the benefit-per-ton 

estimates vary between precursors because each ton of precursor reduced has a 

different propensity to form PM2.5. Benefits from reducing HAP are not 

included. These estimates do not include the energy disbenefits valued at 

$3.8 million, but the rounded totals do not change. CO2-related disbenefits 

were calculated using the social cost of carbon, which is discussed further 

in the RIA. 

These benefits estimates represent the total monetized 

human health benefits for populations exposed to less PM2.5 in 

2015 from controls installed to reduce air pollutants in order 

to meet these standards. To estimate human health benefits of 

this rule, the EPA used benefit-per-ton factors to quantify the 

changes in PM2.5-related health impacts and monetized benefits 

based on changes in SO2 and NOx emissions. These estimates are 

calculated as the sum of the monetized value of avoided 

premature mortality and morbidity associated with reducing a ton 

of PM2.5 and PM2.5 precursor emissions. To estimate human health 

benefits derived from reducing PM2.5 and PM2.5 precursor 
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emissions, we used the general approach and methodology laid out 

in Fann, Fulcher, and Hubbell (2009).5

 

To generate the benefit-per-ton estimates, we used a model 

to convert emissions of direct PM2.5 and PM2.5 precursors into 

changes in ambient PM2.5 levels and another model to estimate 

the changes in human health associated with that change in air 

quality. Finally, the monetized health benefits were divided by 

the emission reductions to create the benefit-per-ton estimates. 

These models assume that all fine particles, regardless of 

their chemical composition, are equally potent in causing 

premature mortality because the scientific evidence is not yet 

sufficient to support the development of differential effects 

estimates by particle type. Directly emitted PM2.5, SO2, and NOx

are the primary precursors affected by this rule. Even though we 

assume that all fine particles have equivalent health effects, 

the benefit-per-ton estimates vary between precursors depending 

on the location and magnitude of their impact on PM2.5 levels, 

which drive population exposure. For example, SO2 has a lower 

benefit-per-ton estimate than direct PM2.5 because it does not 

form as much PM2.5, thus, the exposure would be lower, and the 

monetized health benefits would be lower. 

 

5

 Fann, N., C.M. Fulcher, B.J. Hubbell. 2009. “The influence of location, 

source, and emission type in estimates of the human health benefits of 

reducing a ton of air pollution.” Air Qual Atmos Health (2009) 2:169–176. 
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It is important to note that the magnitude of the PM2.5 

benefits is largely driven by the concentration response 

function for premature mortality. Experts have advised the EPA 

to consider a variety of assumptions, including estimates based 

on both empirical (epidemiological) studies and judgments 

elicited from scientific experts, to characterize the 

uncertainty in the relationship between PM2.5 concentrations and 

premature mortality. For this rule, we cite two key empirical 

studies, the American Cancer Society cohort study6 and the 

extended Six Cities cohort study.7

 In the RIA for this rule, 

which is available in the docket, we also include benefits 

estimates derived from expert judgments and other assumptions. 

The EPA strives to use the best available science to 

support our benefits analyses. We recognize that interpretation 

of the science regarding air pollution and health is dynamic and 

evolving. After reviewing the scientific literature and recent 

scientific advice, we have determined that the no-threshold 

model is the most appropriate model for assessing the mortality 

benefits associated with reducing PM2.5 exposure. Consistent 

 

6

 Pope, et al., 2002. “Lung Cancer, Cardiopulmonary Mortality, and Long-term 

Exposure to Fine Particulate Air Pollution.” Journal of the American Medical 

Association 287:1132-1141 

7

 Laden, et al., 2006. “Reduction in Fine Particulate Air Pollution and 

Mortality.” American Journal of Respiratory and Critical Care Medicine. 173: 

667-672 
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with this recent advice, we are replacing the previous threshold 

sensitivity analysis with a new “LML” assessment. While a LML 

assessment provides some insight into the level of uncertainty 

in the estimated PM mortality benefits, the EPA does not view 

the LML as a threshold and continues to quantify PM-related 

mortality impacts using a full range of modeled air quality 

concentrations. 

Most of the estimated PM-related benefits in this rule 

would accrue to populations exposed to higher levels of PM2.5.

Using the Pope, et al., (2002) study, 85 percent of the 

population is exposed at or above the LML of 7.5 μg/m3. Using 

the Laden, et al., (2006) study, 40 percent of the population is 

exposed above the LML of 10 μg/m3. It is important to emphasize 

that we have high confidence in PM2.5-related effects down to 

the lowest LML of the major cohort studies. This fact is 

important, because as we estimate PM-related mortality among 

populations exposed to levels of PM2.5 that are successively 

lower, our confidence in the results diminishes. However, our 

analysis shows that the great majority of the impacts occur at 

higher exposures. 

Every benefit analysis examining the potential effects of a 

change in environmental protection requirements is limited, to 
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some extent, by data gaps, model capabilities (such as 

geographic coverage) and uncertainties in the underlying 

scientific and economic studies used to configure the benefit 

and cost models. Despite these uncertainties, we believe the 

benefit analysis for this rule provides a reasonable indication 

of the expected health benefits of the rulemaking under a set of 

reasonable assumptions. This analysis does not include the type 

of detailed uncertainty assessment found in the 2006 PM2.5 NAAQS 

RIA because we lack the necessary air quality input and 

monitoring data to run the benefits model. In addition, we have 

not conducted any air quality modeling for this rule. The 2006 

PM2.5 NAAQS benefits analysis8 provides an indication of the 

sensitivity of our results to various assumptions. 

It should be emphasized that the monetized benefits 

estimates provided above do not include benefits from several 

important benefit categories, including reducing other air 

pollutants, ecosystem effects, and visibility impairment. The 

benefits from reducing HAP have not been monetized in this 

analysis, including reducing 23,000 tons of CO, 790 tons of HCl, 

2.6 tons of Pb, 1.8 tons of Cd, 740 pounds of Hg, and 93 grams 

of total D/F each year. Although we do not have sufficient 

 

8

 U.S. Environmental Protection Agency, 2006. Final Regulatory Impact 

Analysis: PM2.5 NAAQS. Prepared by Office of Air and Radiation. October. 

Available on the Internet at http://www.epa.gov/ttn/ecas/ria.html
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information or modeling available to provide monetized estimates 

for this rulemaking, we include a qualitative assessment of the 

health effects of these air pollutants in the RIA for this rule, 

which is available in the docket. 

In addition, the monetized benefits estimates provided in 

Table 6 of this preamble do not reflect the disbenefits 

associated with increased electricity and fuel consumption to 

operate the control devices. We estimate that the increases in 

emissions of CO2 would have disbenefits valued at $3.8 million 

at a 3 percent discount rate. Carbon Dioxide-related disbenefits 

were calculated using the “social cost of carbon”, which is 

discussed further in the RIA. However, these disbenefits do not 

change the rounded total monetized benefits. In the RIA, we also 

provide the monetized CO2 disbenefits using discount rates of 5 

percent (average), 2.5 percent (average), and 3 percent (95th 

percentile). 

For more information on the benefits analysis, please refer 

to the RIA for this rulemaking, which is available in the 

docket. 

II. NHSM Final Revisions

A. Statutory Authority
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The EPA is promulgating these regulations under the 

authority of sections 2002(a)(1) and 1004(27) of the Resource 

Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. 

6912(a)(1) and 6903(27). Section 129(a)(1)(D) of the CAA ((42 

U.S.C. 7429) directs the EPA to establish standards for CISWIs, 

which burn solid waste. Section 129(g)(6) of the CAA provides 

that the term “solid waste” is to be established by the EPA 

under RCRA. Section 2002(a)(1) of RCRA authorizes the Agency to 

promulgate regulations as are necessary to carry out its 

functions under the Act. The statutory definition of “solid 

waste” is provided in RCRA section 1004(27). 

B. NHSM Rule History

The Agency first solicited comments on how the RCRA 

definition of solid waste should apply to non-hazardous 

secondary materials (NHSMs) used as fuels or ingredients in 

combustion units in an Advanced Notice of Proposed Rulemaking 

(ANPRM), which was published in the Federal Register on January 

2, 2009 (74 FR 41). We then published a NHSM proposed rule on 

June 4, 2010 (75 FR 31844), which the EPA issued in final form 

on March 21, 2011 (76 FR 15456). The March 2011 NHSM final rule 

codified the standards and procedures for identifying which nonhazardous secondary materials are “solid waste” when used as 

fuels or ingredients in combustion units. 
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In October 2011, the Agency announced it would be 

initiating new rulemaking proceedings to revise certain aspects 

of the NHSM rule.9

 On December 23, 2011, we then published a 

proposed rule, which addressed specific targeted amendments and 

clarifications to the part 241 regulations (76 FR 80452). These 

proposed revisions and clarifications were limited to certain 

issues on which the Agency had received new information, as well 

as targeted revisions that the Agency believed were appropriate 

in order to allow implementation of the rule as the EPA 

originally intended.10 As stated throughout the preamble to the 

proposed rule, the Agency was not reopening the entire NHSM rule 

for reconsideration and would not respond to comments directed 

toward rule provisions that were not specifically identified in 

this proposal.11 Therefore, any comments that were submitted 

 

9

 See October 11, 2011 Letter from Administrator Lisa P. Jackson 

to Senator Olympia Snowe. A copy of this letter has been placed 

in the docket for today’s rule (EPA-HQ-RCRA-2008-1873). 

10 For more information regarding the intent of the December 23, 

2011 proposed rule, see 76 FR 80469. For more information 

regarding the scope of the proposed rule, see 76 FR 80470-80474.

11 For example, see 76 FR 80470: “The EPA is soliciting comment 

only on these targeted changes and is not reopening any other 

issues in the final NHSM rule. Comments that go beyond the scope 

of this narrow RCRA rulemaking will not be addressed by the 

Agency when it finalizes today’s proposed rule.” See also 76 FR 

80474 “As noted above, the intent of this proposal is to 

identify certain specific aspects of the rule which EPA is 

reconsidering and on which it is soliciting public comment. The 

Agency is not reopening the entire rule for reconsideration and 

will not respond to comments directed toward rule provisions 
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outside the scope of the proposal, or for which the EPA did not 

solicit comment, are not addressed in this final rule, or in the 

Response to Comments document that has been prepared for this 

final rule. 

C. Introduction—Summary of Regulations Being Finalized

 In today’s rule, the EPA is finalizing certain amendments 

and clarifications to the 40 CFR part 241 regulations on which 

we have received new information, as well as specific targeted 

revisions that are appropriate in order to allow implementation 

of the rule as the EPA originally intended. The regulations 

being issued today are summarized below. The intent of this 

summary is to give a brief overview of the revised part 241 

regulations. More detailed discussions, including the Agency’s 

responses to comments received on the proposed rule and its 

rationale for decisions being made in this final action, are 

included in Section II.D of this preamble. In addition, in an 

effort to aid the regulated community, the EPA is including in 

the docket for today’s rule an informational redline/strikeout 

version that identifies the specific changes to the regulatory 

 

that are not specifically identified in this proposal.” and 76 

FR 80482 “The Agency is not considering any change to the selfimplementing, mandatory nature of the §241.3 standards for 

individual facilities and will not respond to any comments on 

this topic.”. 
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text, as compared to the March 2011 final rule.12 

1. Revised Definitions

 In today’s rule, the EPA is finalizing revisions to the 

three definitions discussed in the proposed rule: (1) “clean 

cellulosic biomass,” (2) “contaminants,” and (3) “established 

tire collection programs.” In addition, based on comments 

received on the proposed rule, the Agency is also finalizing a 

revised definition of “resinated wood.” These revised 

definitions will be codified in 40 CFR 241.2. 

a. Clean Cellulosic Biomass

In today’s action, the EPA is issuing a revised definition 

of “clean cellulosic biomass” that: (1) makes clear that the 

list of biomass materials are examples within the definition and 

is not intended to be an exhaustive list; and (2) provides a 

more comprehensive list of clean cellulosic biomass to guide the 

regulated community. These revisions do not change the Agency’s 

intent under the March 2011 final rule, but identify additional 

materials that are “clean cellulosic biomass,” and, thus, are 

traditional fuels under these regulations. A discussion of 

relevant comments regarding the definition of clean cellulosic 

biomass, as well as our rationale for making these 

 

12 This document has been entitled, “NHSM 2012 Final Rule 

Regulation Changes” and his placed in Docket No: EPA-HQ-RCRA2008-0329. 
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determinations, can be found in Section II.D.1.a of this 

preamble. 

b. Contaminants

In today’s action, the EPA is issuing a final definition of 

“contaminants” to clarify what constituents will be considered 

contaminants for the purposes of the contaminant legitimacy 

criterion. Revisions include: (1) the replacement of a reference 

to “any constituent that will result in emissions” with a 

specific list of constituents to be considered as contaminants 

based on their status as a precursor to air emissions; (2) the 

removal from the definition of specific CAA section 112(b) and 

129(a)(4) pollutants that are not expected to be found in any 

NHSM or are adequately covered elsewhere in the definition; and 

(3) the removal of the phrase “including those constituents that 

could generate products of incomplete combustion” from the 

definition. A discussion of relevant comments regarding the 

contaminants definition, as well as our rationale for making 

these determinations, can be found in Section II.D.1.b of this 

preamble. 

C. Established Tire Collection Programs

In today’s action, the EPA is finalizing a revised 

definition of “established tire collection program” in order to 

account for “off-specification” (including factory scrap) tires 
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that are contractually arranged to be collected, managed, and 

transported between a tire manufacturer (including retailers or 

other parties involved in the distribution and sale of new 

tires) and a combustor, which is analogous to how scrap tires 

removed from vehicles are managed. The off-specification tires 

are not removed from vehicles13 and are handled under contractual 

arrangements which ensure they are not discarded. A description 

of how the changes to the definition accommodate the management 

of off-specification tires can be found in Section II.D.1.c of 

this preamble. In addition to the proposed changes, we are 

revising the definition to specifically include tires that were 

not abandoned and were received from the general public at tire 

collection program events. A discussion of relevant comments 

regarding the definition, as well as our rationale for making 

this determination, can be found in Section II.D.1.c of this 

preamble. 

d. Resinated Wood

In today’s action, the EPA is issuing a revised definition 

of “resinated wood” that includes additional materials in order 

to be more representative of the universe of resinated wood 

residuals that are currently used as fuels throughout the wood 

 

13 “Removal from vehicles” had been a component of the 

definition. 
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product manufacturing process. Revisions include: (1) replacing 

the phrase “containing resin adhesives” with the phrase, 

“containing binders and adhesives,” and (2) specifically 

including “off-specification resinated wood products that do not 

meet a manufacturing quality or standard” within this 

definition. A discussion of relevant comments regarding the 

resinated wood definition, as well as our rationale for making 

this determination, can be found in Section II.D.3.b of this 

preamble. 

2. Contaminant Legitimacy Criterion for NHSM Used as Fuels

In today’s action, the EPA is issuing in final form a 

revised contaminant legitimacy criterion for NHSMs used as fuels 

to provide additional details on how contaminant comparisons 

between NHSMs and traditional fuels may be made. Revisions 

include: (1) the ability to compare groups of contaminants where 

technically reasonable; (2) the clarification that “designed to 

burn” means can burn or does burn, and not necessarily permitted 

to burn; (3) the ability to use traditional fuel data from 

national surveys and other sources beyond a facility’s current 

fuel supplier; and (4) the ability to use ranges of traditional 

fuel contaminant levels when making contaminant comparisons, 

provided the variability of NHSM contaminant levels is also 

considered. A discussion of relevant comments regarding the 
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contaminant legitimacy criterion for NHSMs used as fuels, as 

well as our rational for making these determinations, can be 

found in Section II.D.2 of this preamble. 

3. Categorical Non-Waste Determinations for Specific NHSM Used 

as Fuels

In today’s final rule, the Agency is codifying 

determinations that certain NHSMs are non-wastes when used as 

fuels. Based on all available information, the EPA has 

determined that the following NHSMs are categorically not a 

solid waste when burned as a fuel in combustion units: (1) scrap 

tires that are not discarded and are managed under the oversight 

of established tire collection programs, including tires removed 

from vehicles and off-specification tires; (2) resinated wood; 

(3) coal refuse that has been recovered from legacy piles and 

processed in the same manner as currently-generated coal refuse; 

and (4) dewatered pulp and paper sludges that are not discarded 

and are generated and burned on-site by pulp and paper mills 

that burn a significant portion of such materials where such 

dewatered residuals are managed in a manner that preserves the 

meaningful heating value of the materials. 

a. Scrap Tires

In today’s action, the Agency is listing scrap tires that 

are not discarded and are managed under the oversight of 
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established tire collection programs, including tires removed 

from vehicles and off-specification tires (including factory 

scraps), to the categorical list of non-waste fuels (see 40 CFR 

241.4(a)(1)) as proposed. Based on this categorical non-waste 

determination, facilities burning the scrap tires that qualify 

for the provision will not need to demonstrate that this NHSM 

meets the legitimacy criteria on a site-by-site basis. Further, 

the addition to the new categorical non-waste provision at 40 

CFR 241.4(a)(1) eliminated the need for the previous scrap tire 

provision at 40 CFR 241.3(b)(2)(i),14 which has been removed and 

reserved in today’s final rule. A discussion of relevant 

comments regarding the scrap tire provision, as well as our 

rationale for making this determination, can be found in Section 

II.D.3.a of this preamble. 

b. Resinated Wood

 In today’s action, the Agency is listing resinated wood as 

a non-waste fuel in 40 CFR 241.4(a)(2), as proposed. The EPA has 

 

14 The scrap tire provision in the 2011 NHSM final rule is now 

removed and the section reserved in today’s final rule: “(b) The 

following non-hazardous secondary materials are not solid wastes 

when combusted: 

 (2) The following non-hazardous secondary materials that have 

not been discarded and meet the legitimacy criteria specified in 

paragraph (d)(1) of this section when used in a combustion unit 

(by the generator or outside the control of the generator): 

(i) Scrap tires used in a combustion unit that are removed from 

vehicles and managed under the oversight of established tire 

collection programs.”
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evaluated resinated wood and, based on all available 

information, including consideration of the legitimacy criteria, 

as well as other relevant factors, has determined that resinated 

wood is not a solid waste when used as a fuel. Based on this 

categorical non-waste determination, facilities burning 

resinated wood residuals as a fuel will not need to demonstrate 

that this NHSM meets the legitimacy criteria on a site-by-site 

basis. Further, the addition of this categorical non-waste 

determination (40 CFR 241.4(a)(2)) eliminated the need for the 

previous resinated wood provision at 40 CFR 241.3(b)(2)(ii),15

which has been removed and reserved in today’s final rule. A 

discussion of relevant comments regarding the categorical nonwaste determination for resinated wood, as well as our rationale 

for making this determination, can be found in Section II.D.3.b 

of this preamble. 

c. Coal Refuse

In today’s action, the Agency has determined that coal 

 

15 The resinated wood provision in the 2011 NHSM final rule is 

now removed and the section reserved in today’s final rule: “(b) 

The following non-hazardous secondary materials are not solid 

wastes when combusted: 

 (2) The following non-hazardous secondary materials that have 

not been discarded and meet the legitimacy criteria specified in 

paragraph (d)(1) of this section when used in a combustion unit 

(by the generator or outside the control of the generator): 

(ii) Resinated wood used in a combustion unit.” 
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refuse that has been recovered from legacy piles and processed 

in the same manner as currently-generated coal refuse, is a nonwaste fuel in 40 CFR 241.4(a)(3). This determination is based on 

the fact that: (1)legacy coal refuse processed in the same 

manner as currently-generated coal refuse meets the definition 

of processing (as codified in 40 CFR 241.2) and (2)the EPA’s 

assessment that such materials meet the legitimacy criteria for 

fuels (as codified in 40 CFR 241.3(d)(1)) when compared to 

currently-generated coal refuse, which the Agency considers to 

be within the definition of a traditional fuel (as codified in 

40 CFR 241.2). Based on this categorical non-waste 

determination, facilities burning these materials as a fuel will 

not need to demonstrate that this NHSM meets the legitimacy 

criteria on a site-by-site basis. A discussion of relevant 

comments regarding the categorical non-waste determination for 

coal refuse that is recovered from legacy piles and processed, 

as well as our rationale for making this determination, can be 

found in Section II.D.5.b of this preamble. 

d. Pulp and Paper Sludge

In today’s action, the EPA has determined that dewatered 

pulp and paper sludges that are not discarded and are generated 

and burned on-site by pulp and paper mills that burn a 

significant portion of such materials where such dewatered 
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residuals are managed in a manner that preserves the meaningful 

heating value of the materials are non-waste fuels in 40 CFR 

241.4(a)(4). This determination for pulp and paper sludge as a 

categorical non-waste represents the Agency’s finding, after 

balancing the regulatory legitimacy criteria with other relevant 

factors, that the burning of this material, as described in the 

categorical listing is for energy recovery and not discard. 

Based on this categorical non-waste determination, facilities 

meeting the description of this determination and burning these 

materials as a fuel will not need to demonstrate that this NHSM 

meets the legitimacy criteria on a site-by-site basis. A 

discussion of relevant comments regarding the categorical nonwaste determination for pulp and paper sludges, as well as our 

rationale for making this determination, can be found in Section 

II.D.5.a of this preamble. 

4. Rulemaking Petition Process for Other Categorical Non-Waste 

Determinations (40 CFR 241.4(b))

In today’s final rule, the Agency is finalizing a 

rulemaking petition process that provides persons with an 

opportunity to submit a rulemaking petition to the 

Administrator, seeking a categorical determination for 

additional NHSMs to be listed in 40 CFR 241.4(a) as non-waste 

fuels. The process for submitting a rulemaking petition to the 
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Agency, as well as the factors a successful application must 

include, is listed in 40 CFR 241.4(b). A discussion of relevant 

comments regarding the petition process for the 

categoricallistings, as well as our rationale for the 

categorical rulemaking petition process, can be found in Section 

II.D.4 of this preamble. 

5. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination 

Petition Process

In today’s final rule, the Agency is streamlining the nonwaste determination provisions under 40 CFR 241.3(c). The public 

participation process was streamlined to accommodate petitions 

that apply to multiple combustors. In particular, the 

regulations were adjusted to indicate that the appropriate 

office in the EPA headquarters may handle petitions that cross 

multiple regions. Furthermore, if a determination is made that 

the NHSM is a non-waste, the decision will be retroactive and 

apply on the date the petition was submitted. A discussion of 

relevant comments regarding the streamlining of the 40 CFR 

241.3(c) non-waste determination petition process, as well as 

our rationale for the streamlining changes made to the non-waste 

determination process, can be found in Section II.D.6 of this 

preamble. 

6. Revised Introductory Text for 40 CFR 241.3(a)
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In today’s final rule, the Agency has decided not to revise 

the introductory text of 40 CFR 241.3(a). In its December 2011 

proposed rule, the EPA considered revising this introductory 

text to state that non-hazardous secondary materials are 

“presumed to be” solid wastes, rather than “are” solid wastes. 

While the proposed change was not expected to be a substantive 

change to the rule, but merely a reflection of the record at the 

time, it did engender some confusion among commenters. Based on 

the comments received, we have decided not to issue revised 

introductory text 40 CFR 241.3(a) and, thus, this section will 

continue to read as codified in the March 2011 NHSM final rule. 

A discussion of relevant comments regarding the introductory 

text of 40 CFR 241.3(a), as well as our rationale for this 

decision, can be found in Section II.D.7 of this preamble. 

D. Comments on the Proposed Rule and Rationale for Final 

Decisions

In this section, the EPA addresses major comments the 

Agency received regarding the targeted revisions that were 

proposed to certain part 241 provisions in the December 23, 2011 

proposal. In discussing the comments received on the proposal, 

we also provide the rationale for making the revisions that are 

finalized in today’s action. As previously discussed, the Agency 
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specifically stated that it would not address comments that go 

beyond the scope of this narrow RCRA rulemaking. 

1. Revised Definitions

a. Clean Cellulosic Biomass

The proposed rule suggested revising the March 2011 

definition of “clean cellulosic biomass” to list additional 

examples of biomass materials that are appropriately included 

within this definition. These fuels are not secondary materials 

or solid wastes unless discarded. Clean biomass is “biomass that 

does not contain contaminants at concentrations not normally 

associated with virgin biomass materials” (codified in 40 CFR 

241.2). 

This regulatory revision would not change the Agency’s 

intent under the March 2011 final rule, but would identify 

additional materials that are “clean cellulosic biomass,” and, 

thus, would be a traditional fuel under these regulations. While 

the list of clean biomass materials is only illustrative and not 

exhaustive, it is now more comprehensive than the list that 

appeared in the definition included in the 2011 NHSM final rule. 

One of the materials within the definition is clean 

construction and demolition (C&D) wood. In light of some 

confusion in comments regarding C&D wood, the EPA is clarifying 

the meaning of the term in the definition of “clean cellulosic 
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biomass.” C&D wood actually may be placed into different 

categories, depending upon its origin. In accordance with the 

traditional fuels definition in section 241.2, clean 

construction and demolition (C&D) wood could be combusted as a 

traditional fuel if it does not contain contaminants at 

concentrations not normally associated with virgin wood. 

However, the final NHSM rule also addressed C&D wood that 

may contain contaminated material.16 There is no need to repeat 

these discussions here, except to clarify what the final rule 

means. In general, contaminated C&D wood that has been processed 

(e.g., sorted) to remove contaminants, such as lead-painted 

wood, treated wood containing contaminants, such as arsenic and 

chromium, metals and other non-wood materials, prior to burning 

likely meets the processing and legitimacy criteria for 

contaminants, and thus can be combusted as a non-waste fuel (see 

further discussion in response to comments below). 

Comment: One commenter noted that the EPA's specific inclusion 

of "untreated wood pallets" implicitly accepts that small 

amounts of non-wood material inherent to the pallets, such as 

screws or plastic fasteners, do not render those materials solid 

waste under the rule, and de minimis amounts of non-biomass 

 

16 See 76 FR 15485. 
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material would not require these types of materials to be burned 

in incinerators under the CISWI rule. 

 Another commenter requested that the EPA reconsider use of 

the word “untreated” when referring to wood pallets. The 

commenter argues that the EPA does not define the word 

“untreated” and its use could create confusion. Rather, the 

commenter recommends that “untreated” be replaced with the word 

“clean,” which is an adjective used in the definition to 

distinguish other materials (e.g., “clean construction and 

demolition wood”). 

Response: Wood pallets are refurbished or recycled for other 

uses by pallet recyclers. When the useful life of the pallet is 

finished, the recyclers typically remove the small amount of 

non-wood material inherent to pallets that would inhibit 

combustion, such as screws or plastic fasteners. The pallets are 

then ready for use as fuel, and the non-wood material would not 

impact whether the material can be burned in combustion units 

that meet the CAA section 112 emission standards. The Agency is 

not aware of instances where the pallets are used as fuel 

directly by the original users, and non-wood material is left 

remaining in the pallet. Such pallets would not be considered 

clean cellulosic biomass under the rule. 
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With respect to the other comment, the EPA does not agree, 

that the term “untreated” wood pallet be replaced with the term 

“clean” wood pallet. The term “clean” is defined in the 

traditional fuels definition as described above, and applies to 

all the materials listed in the definition of clean cellulosic 

biomass, which includes untreated wood pallets. It would be 

redundant to define “clean” biomass as including “clean” wood 

pallets. The point is that some wood pallets may contain treated 

wood, such as chromated copper arsenate (CCA) treated wood, and 

inclusion of the term “untreated” with wood pallet would help 

emphasize that such treated wood would not be considered “clean” 

under the definition of clean cellulosic biomass. 

Comment: Several commenters indicated that the definition of 

clean cellulosic biomass remains ambiguous because it continues 

to include the caveat that: “Clean biomass is biomass that does 

not contain contaminants at concentrations not normally 

associated with virgin biomass materials.” Thus, notwithstanding 

the EPA’s attempt at expanding the definition of clean 

cellulosic biomass, the commenters believed that this sentence 

should be removed because it perpetuates uncertainty. It is not 

clear what comparisons are permissible and what concentration 

levels are appropriate. 
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The commenters also indicated that this sentence 

perpetuates the EPA’s erroneous interpretation of its authority 

under RCRA. A material does not become a waste when burned for 

energy recovery just because it may contain contaminants -- 

prior to combustion -- not normally associated with virgin 

biomass. It becomes a waste only if it is combusted for the 

purpose of disposal, rather than for energy recovery. 

Response: The Agency disagrees with the commenter that defining 

the term “clean” leads to ambiguity in identifying which 

materials are clean cellulosic biomass. On the contrary, 

defining the term “clean” is meant to ensure that contaminated 

cellulosic material being burned, such as lead-painted wood or 

arsenic treated wood, does not introduce contaminants (as 

defined in 40 CFR 241.2) not normally associated with virgin 

biomass materials. 

The Agency wishes to emphasize, however, that 

determinations that the cellulosic biomass used as a fuel or 

ingredient is clean, do not presuppose any testing of 

contaminant levels. Persons can use expert or process knowledge 

of the material to justify decisions regarding presence of 

contaminants. 

With respect to the comment that burning of contaminated 

material does not make it a waste, the Agency has not reopened 
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this issue for this rule and stands by its responses in the 

rulemaking record for the March 2011 final rule. 

Comment: One commenter provided the example of whether treated 

seeds that contain additives are considered contaminants in 

virgin biomass. These additives may not be found in virgin 

seeds, but are not harmful at the concentrations found in the 

seeds. The commenter questioned whether any concentration above 

“natural” (concentration levels found in virgin material), 

especially when combusted as fuel, would be prohibited and 

require additional waste regulation. 

Response: Seeds may be treated with pesticides and hormones to 

aid in germination. Such chemicals do not generally include 

contaminants as defined in section 241.2; therefore, such 

treated seeds would generally be considered clean cellulosic 

biomass. 

Comment: Several commenters indicated that, as part of the EPA’s 

changes in the definition of clean cellulosic biomass, it is 

proposing to consider treated or painted wood the same as 

“virgin” wood if it has lower than de minimis levels of 

contamination. While adoption of numerical values in the rule 

would require additional provisions for measurements and would 

require additional notice, the commenter believes that such 

clarity is important for successful implementation of the rule. 
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Such limits would be applied to “clean” C&D material, for 

instance, among other potential fuel types. The term de minimis 

is not defined numerically in the proposed rule and the 

commenters argue that without a specific numerical de minimis 

limit, sources would not have a clear understanding of whether 

they fall under the CISWI or hazardous waste incinerator rules. 

The commenter recommended that the EPA define and allow for 

public comment on the levels associated with the term de 

minimis, and base the de minimis levels on contaminant levels 

found in typical “virgin” wood. 

Response: Regarding the addition of a definition for de minimis 

amounts of contaminants remaining in processed wood, the Agency 

does not believe it appropriate to identify specific 

concentration levels. Rather, the Agency interprets de minimis 

as that term is commonly understood-- insignificant or 

negligible amounts of contamination (e.g., small wood sliver 

containing lead paint). 

As indicated above, there also appears to be confusion 

among commenters regarding two different categories of C&D wood 

- - “clean C&D wood” that is a traditional fuel, and C&D wood 

that has been processed to remove contaminants. Under the 2011 

NHSM final rule, C&D wood that has been processed (e.g., sorted) 

to remove contaminants, such as lead-painted wood, treated wood 
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containing contaminants, such as arsenic and chromium, metals 

and other non-wood materials, prior to burning likely meets the 

processing and legitimacy criteria for contaminants, and thus 

can be combusted as a non-waste fuel, but would not be 

considered “clean C&D wood.” Such C&D wood may contain de 

minimis amounts of contaminants and other materials provided it 

meets the legitimacy criteria for contaminant levels. To meet 

the contaminant legitimacy criterion, concentration levels of 

contaminants in the processed C&D wood must be comparable to or 

less than the levels in the traditional fuel the unit was 

designed to burn, whether wood or another traditional fuel (see 

section II.D.2 for a discussion on contaminant comparisons). In 

contrast, “clean C&D wood” is a traditional fuel that does not 

require processing and meets the definition of “clean” (i.e., 

C&D wood that does not contain contaminants at concentrations 

not normally associated with virgin biomass (wood)). Thus, de 

minimis amounts of contaminants and other material appropriate 

for processed C&D wood would not be appropriate for clean wood 

that is a traditional fuel. 

Comment: Onecommenter argued that States should have discretion 

about how to determine appropriate fuel quality, but it should 

be no less stringent than limits set by the EPA. There should be 
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a distinction between de minimis levels of contamination in C&D 

wood and a fuel quality standard. 

Response: We do not necessarily disagree with the commenter. 

That is, as discussed in the final rule, part 241 does not 

preempt a state’s statutory or regulatory standards, and states 

are free to establish fuel quality standards for C&D wood. 

However, we would also note that as solid waste is defined by 

the EPA under RCRA, such state standards would not necessarily 

impact the status of the material as it relates to which 

combustion units are subject to CAA section 129 (56 FR 15546). 

b. Contaminants

The December 2011 rule proposed to clarify what 

constituents will be considered contaminants by making the 

definition of “contaminants” more specific. However, the 

proposal maintained the fundamental approach—and was intended to 

cover the same constituents—as the March 2011 final rule. 

 The March 2011 final rule and the December 2011 proposed 

rule identified the same three ways a chemical can be labeled a 

contaminant. First, it may be one of the 187 HAP currently 

listed in CAA section 112(b); second, it may be one of the nine 

pollutants listed under CAA section 129(a)(4); and third, it may 

be one of a handful of chemicals whose combustion will result in 
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the formation of listed CAA section 112(b) and section 129(a)(4) 

pollutants (e.g., sulfur that will result in SO2). 

The definition proposed in December provided clarification 

by listing the constituents that belong to the third group.17

Specifically, the proposed revision replaced a potentially 

ambiguous reference to “any constituent that will result in 

emissions” with the four specific elements the Agency intended 

to be considered as contaminants (chlorine, fluorine, nitrogen, 

and sulfur) based on their status as a precursor to air 

emissions. In all four cases, the CAA pollutant itself (e.g., 

sulfur dioxide) is not likely to be present in the NHSM prior to 

combustion, and the only way to measure constituents prior to 

combustion “that will result in emissions” of that pollutant is 

to measure a known precursor (e.g., sulfur) instead. For each of 

the four precursor elements listed as contaminants in the 

proposal, the expected fate for the precursor during combustion 

is formation of the aforementioned pollutant, and the precursor 

makes no substantive contribution to the material’s value as a 

fuel. For these reasons, the Agency proposed to specifically 

identify chlorine, fluorine, nitrogen, and sulfur as 

 

17 Eleven metal elements directly identified in CAA section 

112(b) were also listed in the proposed definition to provide 

the regulated community with a complete list of elements that 

are considered “contaminants” under the rule. 
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contaminants in place of hydrogen chloride (HCl), hydrogen 

fluoride (HF), nitrogen oxides (NOx), and sulfur dioxide (SO2). 

By limiting the list of precursors considered contaminants to 

these four elements, the revised definition also made clear that 

the Agency did not intend to include other elements present in 

contaminants (such as hydrogen and carbon) as contaminants 

themselves. 

 The December 2011 proposed rule also removed from the 

definition of contaminants those pollutants in CAA sections 

112(b) and 129(a)(4) that we do not expect to find in any NHSM. 

Specifically: 

 Chlorine gas (Cl2), HCl, HF, NOx , SO2 and were removed from 

the definition because they are unlikely to be found in 

NHSMs prior to combustion and had been replaced by the 

elements chlorine, fluorine, nitrogen, and sulfur as 

discussed above; 

 Fine mineral fibers were removed because they are releases 

from the manufacturing and processing (not combustion) of 

non-combustible rock, glass, or slag into mineral fibers; 

 Particulate matter and coke oven emissions were removed 

because they are products of combustion unlikely to exist 

in NHSMs prior to combustion; 

 Cresol isomers m-cresol, o-cresol, and p-cresol were 

removed because the listed pollutant cresols/cresylic acid 

includes these three isomers; 

 Xylene isomers m-xylene, o-xylene, and p-xylene were 

removed because the listed pollutant xylenes includes these 

three isomers; and 

 Diazomethane, white phosphorus, and titanium tetrachloride 

were removed because their high reactivity makes their 

presence in NHSMs very unlikely. 
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In addition, two phrases present in the March 2011 final 

rule “contaminants” definition were not included in the December 

2011 proposed rule definition. First, the phrase concerning 

constituents “that will result in emissions of the air 

pollutants” was removed since the regulated community had 

expressed confusion that in determining whether or not a NHSM 

meets the contaminant legitimacy criterion, emissions from the 

combustion unit were to be evaluated. The EPA disagreed and 

directed readers to the language in sections 241.3(d)(1)(iii) 

and 241.3(d)(2)(iv). These sections state that contaminant 

comparisons are based on the presence of contaminants in the 

NHSM (or products made from NHSMs in the case of ingredients), 

not the resulting emissions. The proposed revision also inserted 

the phrase “prior to combustion” into the contaminants 

definition to further emphasize that the NHSMs, not the 

emissions that result from NHSMs, are to be evaluated when 

conducting contaminant comparisons. The rationale for evaluating 

the NHSM, and not emissions, can be found in the record for the 

March 2011 final rule.18 The proposal merely added language to 

ensure the rule is consistent with the Agency’s intent. 

The second phrase proposed to be removed from the March 

2011 final rule definition was a reference to “those 

 

18 For example, see 76 FR 15524-15525. 
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constituents that could generate products of incomplete 

combustion,” also referred to as PICs. This reference was 

removed from the definition because it was duplicative and 

potentially misleading. Specifically, this phrase was not 

necessary because all PICs that the Agency considers air 

pollutants—including dioxins, dibenzofurans, PCBs, and PAHs—are 

listed in CAA sections 112(b) or 129(a)(4) and are thus already 

included in the “contaminants” definition. More importantly, the 

phrase was potentially misleading because PIC formation depends 

heavily on combustion conditions, such as air/fuel ratio and 

mixing. These conditions are controlled to limit emissions, and 

neither these conditions nor emissions are the subject of this 

rule. The NSHM itself is the subject of this rule. Thus, the 

removal of both phrases clarified—but did not alter—the 

constituents subject to the contaminant legitimacy criterion. 

The EPA believes that comments have not changed the basis 

for listing specific precursors to air emissions as 

contaminants, nor have they changed the basis for either 

excluding specific constituents from the definition or removing 

the references to “that will result in emissions of the air 

pollutants” and “constituents that could generate products of 

incomplete combustion” from the definition. Thus, the EPA is 
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adopting the reasoning from the proposal and revising the 

definition of contaminants to incorporate these concepts. 

The EPA has decided, however, to make several modifications 

to the regulatory language of the December 2011 proposed rule 

based on comments received and information in the rulemaking 

record. First, in the final definition issued today, precursors 

will only be considered contaminants for NHSMs used as fuels; 

precursors will not be considered contaminants for NHSMs used as 

ingredients. Furthermore, precursors will not be considered 

contaminants if they do not form their corresponding pollutants. 

Also, opacity has been removed from the contaminants definition. 

Finally, the phrase “prior to combustion” has not been inserted 

into the contaminants definition, as had been proposed. 

Contaminants in NHSMs used as fuel in combustion units must 

still be evaluated prior to combustion, and persons must still 

evaluate the NHSM itself (not emissions), but the Agency has 

determined that the topic of when to evaluate contaminants is 

more appropriate to address in the legitimacy criteria than in 

the contaminants definition. 

Additional reasoning for keeping the rule provisions as 

proposed, and for any modifications to the proposed language, 

are described in the following responses to comments. 
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Comment: Several commenters stated that the definition of 

contaminants should focus on contaminants released as combusted 

emissions. One commenter argued that contaminants should be 

compared between emitted contaminants and emission standards. A 

second commenter reiterated previous comments that contaminant 

levels should be related to the air emissions and not the 

content of the material. For support, commenters cited that the 

EPA reversed its position in the proposal by using possible air 

emissions as the basis for establishing what contaminants need 

to be compared. 

Response: The EPA has previously stated that contaminant levels 

before and after combustion can be important indicators of 

legitimacy, and it maintains the position from the March 2011 

final rule that non-waste fuels must be similar in composition 

to traditional fuels prior to combustion.19 Because combustion 

and emission control processes can destroy or remove 

contaminants, a comparison of emissions profiles alone only 

tells one how well the combustion unit is operating, not whether 

the NHSM is being used as a legitimate non-waste commodity 

fuel.20 

 

19 See 76 FR 15525. 

20 Id. 
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The EPA disagrees with the comment that the Agency reversed 

its position on the consideration of emissions in the proposal 

by including precursors to air emissions as contaminants. The 

Agency notes that a difference exists between comparing 

“emissions” and comparing “contaminants that will result in 

emissions,” the exact language used in the March 2011 final 

rule. The EPA has clarified what it intended by “contaminants 

that will result in emissions” in today’s final action. This 

clarification involves the listing of specific precursors known 

to result in emissions of air pollutants when combusted; it also 

involves the removal of specific pollutants known not to be 

present in NHSMs. 

Comment: Two commenters expressed concern that the proposed 

definition of contaminants conflicted with the contaminant 

legitimacy criterion for NHSMs used as ingredients in combustion 

units. Commenters stated that both the definition of 

contaminants, as proposed, and the existing contaminant 

legitimacy criterion for ingredients were clear when read 

separately, but were contradictory when taken together. The 

commenters encouraged the EPA to clarify the regulatory text. 

Specifically, the commenters noted that for ingredients, 

contaminants could not be evaluated prior to combustion and then 
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used to compare products produced using NHSMs to products 

produced using traditional materials. 

Response: The EPA has decided not to include language from the 

December 2011 proposed rule in the definition of contaminants 

that emphasized when NHSM contaminant levels are to be evaluated 

(i.e., before or after combustion). While the proposed 

additional language made clear that NHSMs used as a fuel were to 

be evaluated for contaminants “prior to combustion,” the Agency 

agrees with the two commenters who argued that the proposed 

language conflicts with the contaminant legitimacy criterion for 

ingredients. The contaminant criterion for ingredients requires 

comparisons to be made between products produced with and 

without NHSMs, but until the products exist, they cannot be 

compared. 

As such, the Agency has decided not to adopt the proposed 

additional language addressing when contaminants are to be 

evaluated in the definition of contaminants. The Agency proposed 

similar language in the December 2011 rule addressing this topic 

in the contaminant legitimacy criterion, and the Agency is 

adopting that language in today’s final rule. The Agency has 

determined that the legitimacy criteria themselves (40 CFR 

241.3(d)(1)(iii) for fuels and 40 CFR 241.3(d)(2)(iv) for 

ingredients) are more appropriate places to address this topic. 
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The EPA has also decided to add language to the definition 

of contaminants clarifying that the specification of particular 

precursors to air emissions (i.e., chlorine, fluorine, nitrogen, 

and sulfur) as contaminants does not apply to the contaminant 

legitimacy criterion for ingredients. As identified by the 

commenters, the contaminant criterion for ingredients requires 

comparisons to be made between products produced with and 

without NHSMs. Products can only be compared after combustion 

has occurred, at which point there will be no benefit to 

measuring levels of precursors. 

The Agency also notes that it does not envision a situation 

where NHSMs containing chlorine, fluorine, nitrogen, or sulfur 

would be used as ingredients in such a way that would emit 

higher levels of HCl, HF, NOx, or SO2 than would be emitted 

using traditional ingredients without the material being 

considered a solid waste. In all cases, ingredients must provide 

a valuable contribution to the product being produced, and that 

product must itself be valuable, in order to not be considered a 

solid waste. For an ingredient to provide value, the Agency 

expects the ingredient to remain in a product rather than be 

destroyed or released via emissions. This is a key reason why 

the contaminant legitimacy criterion for ingredients focuses on 

products (i.e., toxics along for the ride) rather than 
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emissions. Furthermore, the legitimacy criteria for ingredients 

cannot be used to avoid the legitimacy criteria for fuels if the 

material is being used for both purposes. 

Comment: Several commenters questioned the rationale for 

including precursors to air emissions as “contaminants” under 

the proposed revised definition. Some indicated that the concept 

is far removed from the true meaning of “discard,” with one 

comment stating that the EPA has no legal, rational, or 

scientific basis for considering the presence of sulfur or 

nitrogen in NHSMs as evidence of intent to discard sulfur 

dioxide or nitrogen oxide during combustion. To support this 

argument, the commenter first noted that the EPA has no record 

basis for assuming that the intent of the combustor is to 

discard the constituent, rather than to generate energy. Second, 

the commenter noted that whether or not a boiler has emissions 

of regulated air pollutants, such as sulfur dioxide or nitrogen 

oxides when it combusts a precursor will depend, not on an 

intent to discard these pollutants, but on boiler operation and 

design. 

Two commenters also stated that the preamble discussion on 

precursors demonstrates how far removed the EPA’s rational for 

this rulemaking is from the concept of discard. They noted that 

the EPA is requiring combustors to document and keep records 
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regarding the fact that carbon monoxide is not present in NHSMs, 

and, under CISWI, would identify the NHSM as waste if this 

documentation is not maintained. The commenters failed to see 

how this has anything to do with a determination that a material 

is a waste under RCRA. 

Response: The EPA disagrees with these comments. Precursors to 

emissions of identified air pollutants are important and 

appropriate to address as contaminants in NHSMs prior to 

combustion. It is also necessary to tailor the definition of 

contaminants to the realities of the combustion process, during 

which precursors present in NHSMs used a fuel—many of which are 

solid or liquid—are transformed into air pollutants. 

However, the Agency agrees with those commenters who argued 

that the revised definition, as proposed, may be too broad with 

regard to precursors that may not form air pollutants in all 

cases. For example, if the combustion of nitrogen does not form 

nitrogen oxides in a particular situation, the Agency did not 

intend in its December 2011 proposed rule to consider nitrogen 

as a contaminant in that particular situation.21 The EPA noted in 

 

21 See March 16, 2012 Response from James R. Berlow, Director, 

Program Implementation and Information Division, EPA’s Office of 

Resource Conservation and Recovery to Fadi K. Mourad, DTE Energy 

Services, Inc. A copy of this response letter has been placed in 

the docket for today’s rulemaking and is also available at 

http://www.epa.gov/epawaste/nonhaz/define/index.htm. 
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the proposed rule that chlorine, fluorine, nitrogen, and sulfur 

will form pollutants of concern in most circumstances, but the 

Agency does acknowledge that specific technologies and practices 

may prevent these transformations from happening in the first 

instance, particularly with regard to nitrogen (one example 

being the use of Low NOx burners with Over-Fire Air). Thus, the 

contaminants definition issued in today’s final rule does not 

consider constituents that are normally precursors to CAA 

section 112(b) or 129(a)(4) pollutants to be contaminants if a 

specific technology or practice prevents them from forming their 

corresponding pollutants. 

The definition codified in 40 CFR 241.2 only includes 

chlorine, fluorine, nitrogen, and sulfur as contaminants in 

cases where “combustion will result in the formation of hydrogen 

chloride (HCl), hydrogen fluoride (HF), nitrogen oxides (NOx), 

or sulfur dioxide (SO2).” When compared to the December 2011 

proposed rule, the only constituents no longer considered 

contaminants due to this modification are chlorine that will not 

form HCl during combustion, fluorine that will not form HF 

during combustion, nitrogen that will not form NOx during 

combustion, and sulfur that will not form SO2 during combustion. 

This is consistent with the March 2011 NHSM final rule, under 
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which these constituents would not be contaminants when they 

would not “result in emissions” of CAA section 112(b) or section 

129(a)(4) pollutants. 

Although the EPA is not currently aware of any technologies 

or practices that prevent chlorine, fluorine, or sulfur in NHSMs 

from forming their associated pollutants during combustion (the 

EPA is aware of such examples with nitrogen), the Agency 

considers it reasonable and appropriate to adopt the same 

language for all four precursors to allow for future 

technological advances preventing the transformation of these 

elements into pollutants during combustion. 

Comment: One commenter stated that the consideration of 

precursors to air emissions as contaminants could be used to 

make the most fundamental of all elements, hydrogen, a 

contaminant because it is present in nearly all regulated 

pollutants. The presence of hydrogen in a NHSM could then be 

considered evidence of intent to discard pollutants that 

contained hydrogen.

Response: Under the proposed contaminants definition, only the 

specific precursor elements listed (chlorine, fluorine, 

nitrogen, and sulfur) are considered contaminants. The EPA 

determined in the proposal, and adopts as its final decision 

today, that these are the only four precursors necessary to 
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evaluate when comparing contaminants between NHSMs and 

traditional fuels. The Agency specifically decided not to 

include hydrogen on this list. Whereas combustion of chlorine, 

fluorine, nitrogen, and sulfur typically leads to the formation 

of CAA section 112(b) or 129(a)(4) air pollutants, combustion of 

hydrogen typically leads to the formation of water vapor. 

Comment: Several commenters opposed the inclusion of precursors 

as contaminants on the ground that the formation of related 

pollutants depends more on boiler operation and design, process 

chemistry, and feedstock characteristics than on the levels of 

precursors present in the NHSMs. 

Response: The EPA recognizes that unit design and operating 

conditions can impact the transformation of chlorine, fluorine, 

nitrogen, and sulfur into air pollutants. Rather than viewing 

this as a reason to ignore the pollutants these elements 

commonly form, the Agency views this as further evidence why 

precursor levels must be considered when determining which set 

of CAA standards—which in turn regulate unit operating 

conditions—should apply. 

Comment: Two commenters suggested that the EPA follow a 

different approach for defining contaminants and use a method 

similar to what the Agency used for the used oil specification 

in 40 CFR 279.11. In each case, the commenter suggested that for 
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NHSMs, the definition of contaminants should be limited to 

sulfur, nitrogen, chlorine, cadmium, mercury, and lead because 

those are the elements Congress addressed in CAA section 129. 

This approach, they argued, would be similar to what the EPA did 

when developing the used oil specifications. The point the 

commenters wished the Agency to draw from the used oil 

specification approach is that it addressed elemental species, 

as opposed to individual compounds. Using sulfur as an example, 

the commenters reasoned that it is the underlying presence of 

sulfur-bearing materials in the NHSMs, as opposed to individual 

sulfur-containing compounds on the section 112(b) list, which 

effects emissions of sulfur dioxide. 

Response: The EPA disagrees with the approach outlined by the 

commenters and has issued a final definition of contaminants 

based on both the CAA section 112(b) and the CAA section 

129(a)(4) lists, as was proposed. We do agree with the 

commenters, however, that identifying precursors that will form 

certain CAA pollutants in the definition of contaminants is 

appropriate. The approach outlined by the commenters appears to 

be based on two premises that the EPA has previously considered 

and decided not to adopt. 

First, the commenters do not think the definition of 

contaminants should reference both the CAA section 112(b) and 
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CAA section 129(a)(4) lists. The Agency previously explained its 

decision to use both lists in the March 2011 final rule and does 

not believe comments have offered any new information that would 

change the basis for this decision. The EPA previously discussed 

that both lists of constituents are appropriate because both 

lists are to be considered by the EPA when developing emission 

standards.22 Furthermore, the Agency has previously explained 

that CAA section 129 provides that the term “solid waste” shall 

have the meaning promulgated by the EPA under RCRA, and that the 

EPA has the authority to interpret RCRA to decide whether NHSM 

are solids wastes or not.23 The Agency notes that it has 

carefully considered the CAA section 112(b) and 129(a)(4) lists 

of pollutants and removed those constituents that would not be 

appropriate to evaluate in NHSMs. 

Second, the commenters base their proposed approach to 

defining contaminants purely on emissions. The Agency agrees 

that emissions may be a means of discard, but contaminants that 

are destroyed by the combustion process or incorporated into 

products may not have emission standards established under CAA 

section 129. Combustion may still be a means of discard in these 

instances. Thus, a definition of contaminants based only on the 

 

22 See 76 FR 15524-15525. See also, 75 FR 31883. 

23 See 76 FR 15469-15470. See also, 76 FR 15473.
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CAA section 129 emissions standards only tells one how well the 

combustion unit is operating, not whether the NHSM is being used 

as a legitimate non-waste commodity.24

Comment: Several commenters addressed the specific constituents 

proposed to be removed from the definition of contaminants. In 

general, comments were supportive of the concept that 

constituents unlikely to be found in NHSMs prior to combustion 

or adequately measured elsewhere in the definition should be 

removed from the definition. 

Multiple commenters asked that carbon monoxide (CO) also be 

removed from the definition because it is unlikely to be found 

in NHSMs. The same commenters asked that opacity be removed from 

the definition because it can only be measured in emissions and 

is not directly related to any one specific constituent in 

NHSMs. Particulate matter and coke oven emissions were removed, 

noted the commenters, because they are products of combustion 

unlikely to exist in NHSMs prior to combustion, and the same can 

be said for CO and opacity. 

One commenter expressed concern that asbestos had been 

removed from the list due to the removal of “fine mineral 

fibers” as a contaminant. The commenter explained that asbestos 

is commonly found in construction and demolition debris, and 

 

24 See 76 FR 15525. 
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asbestos particles in smoke are deadly. Excluding fine mineral 

fibers from regulation explicitly ignores the possibility of 

such contamination in C&D debris, noted the commenter, and 

asbestos should be a regulated contaminant. 

Response: The EPA has issued a final rule containing the 

language removing constituents from the definition of 

contaminants as proposed, with one change. The Agency has 

removed “opacity” from the final definition of contaminants as 

well. Similar to particulate matter and coke oven emissions, 

there is no practical way to measure opacity in NHSMs prior to 

combustion or in products made using NHSMs. In fact, the EPA did 

not intend for opacity to be included in the definition of 

contaminant under the previous definition. A visual property of 

an emissions stream, opacity is not even a constituent, let 

alone a constituent that can be measured in NHSMs prior to 

combustion or in products made using NHSMs. As such, removing it 

from the definition will provide clarity without effecting any 

practical change to the definition.25 

The Agency has not removed CO from the definition of 

contaminants because, contrary to comments that it is unlikely 

to be found in any NHSM, it is likely to be present in gaseous 

 

25 Neither Table 7 nor Table 8 in the December 2011 proposed rule 

included opacity. See 76 FR 80478-80480. 
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NHSMs and is not adequately measured elsewhere in the 

“contaminants” definition. However, as we discuss in the 

December 2011 proposed rule, CO is unlikely to be found in solid 

or liquid NHSMs, and EPA expects that persons can use process 

knowledge to justify not testing for CO in these cases.26

The Agency has removed the fine mineral fibers group from 

the definition of contaminants, as proposed, because they are 

not expected to be found in NHSMs. Fine mineral fibers, as 

regulated under CAA section 112(b) are releases from the 

manufacturing and processing of non-combustible rock, glass, or 

slag into mineral fibers and are not produced during the 

combustion process. Asbestos, on the other hand, has been set 

apart from the fine mineral fibers group in CAA section 112(b), 

and thus, it is set apart in the NHSM rule. To be clear, 

asbestos is included in the definition of contaminants in 

today’s final rule, and it would be a contaminant regardless of 

whether the fine mineral fibers group was removed or not. 

In summary, the following twelve CAA section 112(b) and 

section 129(a)(4) pollutants have been removed from the 

definition of contaminants: hydrogen chloride (HCl), chlorine 

gas (Cl2), hydrogen fluoride (HF), nitrogen oxides (NOx), sulfur 

dioxide (SO2), fine mineral fibers, particulate matter, coke oven 

 

26 See 76 FR 80475 
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emissions, opacity, diazomethane, white phosphorus, and titanium 

tetrachloride. 

c. Established Tire Collection Programs 

The 40 CFR part 241.2 definition for “established tire 

collection program,” as established by the March 2011 

promulgation in the Federal Register, was as follows: 

“Established tire collection program means a comprehensive 

collection system that ensures scrap tires are not discarded and 

are handled as valuable commodities in accordance with section 

241.3(b)(2)(i) from the point of removal from the vehicle 

through arrival at the combustion facility.” 

In the December 2011 NHSM proposed rule, the EPA proposed 

to revise this definition (and the related criteria for nonwaste tires now at 40 CFR 241.4(a)(1)) in order to account for 

off-specification tires. The term “off-specification tires” is 

intended to also include “factory scraps.” The off-specification 

tires are not removed from vehicles and are handled under 

contractual arrangements which ensure they are not discarded. 

The definition was modified to include “contractual arrangement” 

to provide that not only “collection systems,” but also 

contractual arrangements for tire collection would be 
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appropriate. The requirement for the tires to be removed from 

the vehicle was eliminated27 since it is not applicable to offspecification tires. The revised definition is sufficient to 

encompass the Agency’s intent in describing these programs and 

continues to ensure that these scrap tires are not discarded and 

are handled as valuable commodities through arrival at the 

combustion facility. Further, the addition to the new 

categorical non-waste provision at 40 CFR 241.4(a)(1) eliminated 

the need for the previous scrap tire provision at 40 CFR 

241.3(b)(2)(i),28 (which has been removed and reserved in today’s 

final rule) therefore, the reference to that provision was 

removed in the definition. The Agency proposed to revise the 

definition as follows: “Established tire collection program 

means a comprehensive collection system or contractual 

arrangement that ensures scrap tires are not discarded and are 

 

27 The related tire provision at 241.4(a)(1) allows for tires 

that are off-specification or are removed from vehicles. 

28 The scrap tire provision in the 2011 NHSM final rule is now 

removed and the section reserved in today’s final rule: “(b) The 

following non-hazardous secondary materials are not solid wastes 

when combusted: 

 (2) The following non-hazardous secondary materials that have 

not been discarded and meet the legitimacy criteria specified in 

paragraph (d)(1) of this section when used in a combustion unit 

(by the generator or outside the control of the generator): 

(i) Scrap tires used in a combustion unit that are removed from 

vehicles and managed under the oversight of established tire 

collection programs.” 
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handled as valuable commodities through arrival at the 

combustion facility.” 

 The definition in today’s final rule includes the revisions 

to the definition we proposed in December 2011. In addition, the 

Agency is including in the definition “tires that were not 

abandoned and were received from the general public at 

collection program events.” This revision is being made based on 

comments received on the proposed rule, as discussed below. 

Under today’s revised definition, established tire collection 

programs could also include a “contractual arrangement.” If, for 

example, the state is sponsoring special events where they take 

tires back from the general public, those tires would also be 

included. Thus, the definition in today’s final rule is 

“Established tire collection program means a comprehensive 

collection system or contractual arrangement that ensures scrap 

tires are not discarded and are handled as valuable commodities 

through arrival at the combustion facility. This can include 

tires that were not abandoned and were received from the general 

public at collection program events.” 

 While the Agency did receive comments on the specific 

proposed changes described above, a number of commenters 

rephrased or restated previous arguments which conclude that any 

tires burned for energy recovery are not wastes, even if 
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previously discarded. Conversely, one commenter reiterated its 

previous arguments which conclude that all used tires are waste, 

even if burned for energy recovery. Today’s rule is responding 

only to the specific proposed revisions to the regulations and 

the requests for comment in the proposal. For the response to 

other issues, refer to the record for the 2011 NHSM final rule 

(76 FR 15456). Many of the commenters who provided comments on 

tires intertwined the “established tire collection program” 

definition issues with the related topic of the categorical nonwaste provision for scrap tires. For a discussion of those 

comments, refer to the response to comments for the categorical 

non-waste provision for scrap tires (Section II.D.3.a.). The EPA 

is not reopening its decision that these scrap tires are not 

wastes. That decision, however, justifies a categorical 

exclusion where there is not a need to make case-by-case 

determinations regarding discard in the first instance and the 

legitimacy criteria. 

Comment: Several commenters mentioned that, in some cases, the 

public individually takes tires to state-run tire collection 

program events. These are tires that the general public owns and 

were typically removed from their vehicle. These are not 

abandoned tires. These collection events, in some cases, are 

held by the combustor under the state’s environmental program 
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oversight. In those cases, the combustors enter into agreements 

with local communities to hold these events during which local 

residents are allowed to bring tires to facilities to be 

recycled, including used as alternative fuels. The scope of tire 

collection programs also may allow the public to take used tires 

which they may have stored in their garages, or elsewhere on 

their property, directly to a combustion facility – in many 

cases a cement kiln. 

 Under the EPA’s current definition of tire collection 

programs, the commenters said it is not clear whether these 

tires would qualify as those collected under an “established 

tire collection program.” Commenters generally agreed that these 

tires are not abandoned and should be utilized as non-waste 

fuels without processing. 

Response: The EPA agrees with the commenters that tires that 

have not been discarded and are collected directly from the 

public at tire collection events are intended to qualify for the 

40 CFR 241.4(a)(1) requirement to be “managed under the 

oversight of established tire collection programs.” The Agency 

agrees that these tires are not abandoned and when collected 

under established tire collection program events, they are 

considered to be non-waste fuels, just as the other tires 

handled by established tire collection programs are non-waste. 
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To make this point clear, the EPA has modified the regulatory 

language. Please refer to the response to comment document for 

more details on these collection events and the responses. 

2. Contaminant Legitimacy Criterion for NHSMs Used as Fuels

Under the December 2011 proposed rule, revisions to the 

contaminant legitimacy criterion for NHSMs used as fuel provided 

details on how contaminant comparisons could be made in 

practice. The proposal maintained the fundamental approach of 

the March 2011 final rule, but the proposed criterion better 

reflected the EPA’s intent to allow certain flexibilities when 

making contaminant comparisons. 

First, the proposal replaced “contaminants” with the phrase 

“contaminants or groups of contaminants” to clarify that, when 

deciding how to compare contaminants between NHSMs and 

traditional fuels, persons do not have to make comparisons on a 

contaminant-by-contaminant basis in all cases. When technically 

reasonable, comparisons may be made on a group of contaminantsby-group of contaminants basis. 

The December 2011 rule also proposed to codify language 

from the preamble to the March 2011 final rule clarifying that 

when selecting which traditional fuel(s) a unit is designed to 

burn, persons are not limited to the traditional fuel the unit 

is currently permitted to burn. Persons may choose any 
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traditional fuel the unit can burn or does burn, whether or not 

it is permitted to burn such fuel. 

In addition, the proposed regulations included text 

confirming that, when comparing contaminant levels between NHSMs 

and traditional fuels, persons are not limited to data from the 

specific traditional fuel being replaced. National surveys of 

traditional fuel contaminant levels are one example of another 

acceptable data source. Neither the March 2011 final rule nor 

the December 2011 proposed rule required persons to compare 

contaminants in their NHSM to contaminants in the specific 

traditional fuel source they burn (or would otherwise burn). As 

an example, the proposal noted that persons who would otherwise 

burn coal may use any as-burned coal available in coal markets 

in making a comparison between the contaminants in their NHSM 

and the contaminants in coal—they are not limited to coal from a 

specific coal supplier they have used in the past or currently 

use. 

Finally, the proposed regulations included text confirming 

that, when comparing contaminant levels between NHSMs and 

traditional fuels, persons are not limited to comparing average 

concentrations. Traditional fuel contaminant levels can vary 

considerably, and the full range of contaminant values may be 

used. 
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Two other issues arose prior to the December 2011 proposed 

rule that, while not leading to specific regulatory changes in 

the proposal, still merited a discussion in the proposal. The 

first issue was that contaminant legitimacy criterion 

determinations do not require testing contaminant levels, in 

either the NHSM or an appropriate traditional fuel. Persons can 

use expert or process knowledge to justify decisions to either 

rule out certain constituents or determine that the NHSM meets 

the contaminant legitimacy criterion. The second issue was that 

persons may use data from a group of similar traditional fuels 

for contaminant comparisons, provided the unit could burn each 

traditional fuel. The idea grows from the “designed to burn” 

concept explained in the March 2011 final rule and codified in 

today’s final rule, and it allows a person with a unit that can 

or does burn similar traditional fuels (e.g., anthracite, 

lignite, bituminous, and sub-bituminous coal) to group those 

traditional fuels when making contaminant comparisons. 

The EPA believes that comments have not changed the basis 

for making the decisions to expressly allow grouping of 

contaminants, to interpret “designed to burn” to mean can burn 

or does burn regardless of permit status, and to affirm that 

persons can use ranges and national surveys of traditional fuel 

data when making contaminant comparisons between NHSMs and 
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traditional fuels. Comments have also not changed the Agency’s 

basis for making the decisions that testing is not required and 

that persons can group similar traditional fuels for the 

purposes of contaminant comparisons. Thus, the EPA is adopting 

the reasoning from the proposal and revising the contaminant 

legitimacy criterion for NHSMs used as a fuel to incorporate 

these concepts. 

The EPA has decided, however, to make one modification to 

the proposed contaminant legitimacy criterion based on comments 

received and information in the rulemaking record. The final 

criterion issued today includes additional language clarifying 

the appropriate use of ranges when making contaminant 

comparisons between NHSMs and traditional fuels. To use the full 

range of contaminant values in traditional fuels, persons should 

also account for the variability in NHSM contaminant levels. 

Additional details and rationale for the proposed revisions 

concerning the grouping of contaminants, the meaning of designed 

to burn, and the use of ranges and traditional fuel data in 

making contaminant comparisons are discussed in Section 

II.D.2.b, Section II.D.2.c, and Section II.D.2.d below. 

Additional reasoning for keeping the rule provisions as proposed 

and for any modifications to the proposed language are described 

in the responses to comments included in these sections. 
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a. General Comments on the Revised Contaminant Legitimacy 

Criterion 

The EPA is not responding to issues that the Agency decided 

in the March 2011 rule and has not reopened for comment. 

Specifically, the Agency has previously discussed and did not 

solicit comments in this rule on why the concept of legitimacy 

is important in determining whether a secondary material is 

genuinely recycled or is, in fact, discarded.29 The Agency has 

also previously discussed and did not solicit comments in this 

rule on why contaminant comparisons to traditional fuels are an 

appropriate and mandatory factor in determining legitimacy for 

NHSMs used as fuels in combustion units.30 The Agency has also 

previously discussed and did not solicit comments in this rule 

on why the “comparable to or lower than” standard is more 

appropriate than the “not significantly higher than” standard.31 

The Agency has also previously discussed that the NHSM Rule 

differs from the DSW Rule in that it is tailored specifically 

for application to non-hazardous secondary materials used in 

combustion units.32 

 

29 See 75 FR 31870. 

30 See 75 FR 31871-31872. See also, 76 FR 15524-15525. 

31 See 75 FR 31872. See also, 76 FR 15523. 

32 See 75 FR 31870.
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Comment: Industry commenters overwhelmingly supported the 

proposed revisions to the contaminant legitimacy criterion, 

stating that the revisions would help provide regulatory 

certainty and give the regulated community more confidence in 

their self-determinations. 

Environmental groups, on the other hand, expressed concern 

that the combination of flexibilities present in the proposed 

revisions to the contaminant legitimacy criterion will allow 

facilities to compare contaminant levels in C&D debris and other 

wood waste to the highest contaminant levels found in coal, even 

if the facility is not permitted to burn coal. They believed 

that this should not be permitted and argued that C&D wood 

should not contain contaminant levels higher than found on 

average in virgin biomass. 

State comments were mixed, with one commenter supporting 

the proposed revisions and another commenter expressing concern 

that the revisions would weaken the states’ permitting 

authorities and create an incentive for combustors to burn 

dirtier traditional fuels. 

Response: The EPA has decided to retain the concepts proposed to 

the contaminant legitimacy criterion because these changes more 

accurately reflect the EPA’s intent under the March 2011 final 

rule. The Agency maintains that these concepts are reasonable 
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and provide a necessary degree of certainty for persons seeking 

to comply with the rule. This is explained in more detail in 

Sections II.D.2.b (groups of contaminants), II.D.2.c (meaning of 

designed to burn), and II.D.2.d (allowable contaminant 

comparisons) of this preamble. 

At the same time, comments from both industry and 

environmental groups have highlighted, in the Agency’s opinion, 

a need for additional clarity in the regulatory text on the 

appropriate use of ranges when making contaminant comparisons 

between NHSMs and traditional fuels. Accordingly, the EPA has 

made a minor adjustment to the criterion to ensure that ranges 

are not used inappropriately in contaminant comparisons (i.e., 

the highest traditional fuel contaminant values should not be 

compared to average NHSM contaminant values). See Section 

II.D.2.d of this preamble for a more detailed description of 

this specific change to the contaminant legitimacy criterion. 

The Agency disagrees with state concerns that the NHSM rule 

will weaken the states’ permitting authorities. State permitting 

authorities must still approve permit changes and this final 

rule does not affect discretion of the permitting authorities in 

acting on requests for permit modifications. The Agency also 

disagrees with state concerns that the NHSM rule will create an 

incentive for combustors to burn dirtier traditional fuels. The 
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EPA understands how restricting contaminant comparisons to 

traditional fuels the unit currently burns could provide an 

incentive for the facility to burn traditional fuel with high 

contaminant levels. When facilities do not actually have to burn 

that traditional fuel to make comparisons, however, that 

incentive is effectively removed. 

Comment: One commenter requested that the proposed revisions to 

the contaminant legitimacy criterion be added to each option for 

demonstrating that NHSMs are non-wastes when used in combustion 

units, whether it is the on-site documentation, the EPA petition 

process, or the categorical non-waste determination process 

proposed in 40 CFR 241.4. 

Response: Revisions to the contaminant legitimacy criterion 

codified today in 40 CFR 241.3(d)(1) apply to all options for 

demonstrating that a NHSM is not a solid waste when used as a 

fuel in a combustion unit. The revised legitimacy criterion is 

embedded in the self-implementing options outlined in 40 CFR 

241.3(b)(1) for use within the control of the generator and 40 

CFR 241.3(b)(4) for NHSMs that are processed and then used in a 

combustion unit. The revised legitimacy criterion is also 

embedded in the optional the EPA petition process outlined in 40 

CFR 241.3(c). The revised legitimacy criteria is also referenced 
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as a factor to be considered in the categorical non-waste 

determination process outlined in 40 CFR 241.4. 

Comment: Several commenters expressed concern that the proposed 

revisions to the contaminant legitimacy criterion, although an 

improvement over the 2011 Final NHSM Rule, may not provide the 

regulated community with enough information to be confident in 

their compliance status. Two commenters noted that the EPA has 

overlooked the analytical complexities inherent in the 

contaminant legitimacy criterion and the many opportunities it 

creates for disagreement between facility operators and regional 

and state regulators. One of these commenters asked the EPA to 

both define the term ‘comparable’ and clarify sampling and 

analytical methodologies to be used when measuring contaminant 

levels. Other commenters advised the EPA to increase 

predictability as much as possible by developing a disciplined 

process for making contaminant comparisons and providing real 

time transparency for such decisions. 

Similarly, two commenters expressed concern that even after 

a source makes a fuel determination, the EPA could take a 

different view of the non-hazardous secondary materials and 

conclude that they were solid wastes. The risk sources face is 

noncompliance with the CAA, and these commenters contended that 

the issue is too critical for the EPA to leave the contaminant 
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legitimacy criterion so vague. Over time, as the EPA develops a 

record for decisions (particularly comparable contaminant 

determinations), one of these commenters urged the EPA to 

establish a database and immediately post determinations for 

other sources to review. 

Other commenters supported the proposed revisions to the 

contaminant legitimacy criterion and indicated that they 

provided sufficient clarification. One commenter noted that 

changes to the language of the criterion and the additional 

clarification provided in the preamble to the December 2011 

proposed rule provide key additional detail on making 

contaminant comparisons and allow additional flexibility where 

appropriate. The same commenter urged the EPA to maintain that 

flexibility if the Agency develops additional guidance on making 

contaminant comparisons in the future. 

Response: The EPA has retained the approach included in the 

proposed rule that provides information on how contaminant 

comparisons can be made, and the Agency will continue to make 

its traditional fuel data and legitimacy determinations 

transparent through the EPA website.33

 

33 The EPA maintains a NHSM webpage with current information on 

contaminant levels in traditional fuels, examples of legitimacy 

determinations, and other information at 

http://www.epa.gov/epawaste/nonhaz/define/index. 
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The Agency recognizes the need for regulatory certainty, a 

need that has been addressed by revisions to the definition of 

contaminants and the contaminant legitimacy criterion in today’s 

final rule. Contaminants have been specifically listed, 

additional clarity on NHSMs/traditional fuel comparisons has 

been provided, and several comparison methodologies have been 

provided in the preamble as examples that could be used by the 

regulated community. Comments from the regulated community have 

been supportive both of these changes and of the Agency’s 

efforts to update traditional fuel data that can be used for 

contaminant comparisons.34 In addition, a number of 

interpretative letters have been written that address specific 

fact situations as presented by a specific facility, and these 

letters have been posted on the EPA’s website. These letters 

serve as examples of acceptable ways to demonstrate legitimacy. 

The EPA must balance the need for regulatory certainty, 

however, with the need for flexibility, which many commenters 

also believe is important. As the Agency has previously 

discussed, the legitimacy criteria must be flexible enough to 

account for future changes in commodities, technologies, 

 

34 Contaminant Concentrations in Traditional Fuels: Tables for 

Comparison, November 29, 2011, can be found at 

http://www.epa.gov/epawaste/nonhaz/define/index. 
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markets, and fuel prices.35 Previous comments have stressed the 

preference for a qualitative approach, and the Agency has 

agreed, noting that numerical specifications may be impractical 

due to the multiplicity of fuels and ingredients.36 The Agency 

has also previously discussed that a numerical definition of 

‘comparable’ would be impractical given differences in the 

typical concentration levels of various contaminants, choosing 

instead to offer several examples.37 While the Agency will 

consider future guidance on contaminant comparisons, it has 

determined that no one approach is appropriate for every 

legitimacy determination given the variety of traditional fuels, 

NHSMs, and combustion units that currently exist and will likely 

increase in the future. 

Comment: One commenter noted that both the March 2011 NHSM final 

rule and the proposal implicitly place the burden on the 

combustion facility to determine if a fuel derived from nonhazardous secondary materials meets the legitimacy criteria. In 

the utility industry, the commenter explained, it is common 

practice for utilities to rely on fuel marketers to establish 

and verify fuel quality, and the regulatory burden on utilities 

combusting such secondary materials as fuels could be reduced if 

 

35 See 75 FR 31870. 

36 See 75 FR 31871. 

37 See 76 FR 15524 and 15542.
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the EPA clarified the circumstances under which a facility would 

be entitled to rely on the fuel quality representations of its 

suppliers. The commenter suggested that the EPA clarify that a 

utility may rely in good faith on the representations of its 

suppliers that NHSMs meet the codified legitimacy criteria, or, 

alternatively, that utilities be required only to periodically 

test the quality of non-hazardous secondary material-derived 

fuels obtained from third parties to rely on their suppliers’ 

representations. 

Response: The EPA notes that while fuel suppliers may provide 

their customers with documentation supporting a legitimacy 

determination, persons that burn NHSMs are ultimately 

responsible for the materials burned at their units. As stated 

in the proposed rule, however, the Agency adopts as its decision 

for this final rule that initial assessments would not need to 

be repeated as long as the facility continues to operate in the 

same manner and use the same type of NHSM as when the original 

assessment was made.38 

b. Grouping of Contaminants

The December 2011 proposed revision to the contaminant 

legitimacy criterion for NHSMs used as a fuel began with the 

following sentence: “The non-hazardous secondary material must 

 

38 See 76 FR 80481. 
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contain contaminants or groups of contaminants at levels 

comparable in concentration to or lower than those in 

traditional fuel(s) which the combustion unit is designed to 

burn.” The phrase ‘or groups of contaminants’ was not present in 

the language from the March 2011 NHSM Final Rule, but was 

included in the December 2011 NHSM Proposed Rule to clarify that 

groups of contaminants could be evaluated in determining whether 

a NHSM meets the contaminant legitimacy criterion. 

In particular, the proposed rule noted that groups of 

contaminants in NHSMs could be compared to similar groups in 

traditional fuels where the grouped contaminants shared physical 

and chemical properties that influence their behavior in the 

combustion unit prior to the point where emissions occur. 

Volatility, the presence of specific elements, and compound 

structure were three such properties identified in the proposal, 

and one approach to grouping contaminants was shown that 

included groups for total organic halogens, nitrogenated HAP, 

volatile organic compounds (VOCs), semi-volatile organic 

compounds (SVOCs), dioxins and furans, PCBs, PAHs, and 

radionuclides. The Agency also noted that persons may consider 

other groupings that they can show are technically reasonable. 

Grouping of contaminants is a standard practice often 

employed by the Agency as it develops regulations. In fact, the 
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monitoring standards included in the CAA sections 112 and 129 

regulations also utilize the grouping concept, and they apply to 

the same combustion units impacted by the NHSM rule (i.e., 

industrial, commercial, and institutional boilers and process 

heaters and CISWI units). For example, 

 Volatile hydrocarbons and semi-volatile hydrocarbons can 

both be expected to result from incomplete combustion; 

therefore, the emission standards promulgated under the CAA 

regulations are grouped into one category: CO.39

 Halogenated organics are expected to contribute to 

emissions of dioxin and acid gases (HCl and HF); therefore, 

the emission standards promulgated under the CAA are 

grouped into two categories: D/F and HCl.40

 Nitrogenated compounds are expected to contribute to 

emissions of NOx; therefore, the emission standards 

promulgated under the CAA are grouped into one category: 

NOx.41

In addition, a number of the seemingly “individual” 

pollutants listed in sections 112 and 129 of the CAA are 

actually classes of structurally-related compounds (e.g., PCBs, 

POM, D/F, cyanide compounds, cresols, glycol ethers, 

radionuclides, xylenes, antimony compounds, arsenic compounds, 

beryllium compounds, and cadmium compounds). 

All comments discussing the Agency’s proposal to expressly 

allow the grouping of contaminants supported the Agency’s 

 

39 Area Source Boilers NESHAP, Major Source Boilers NESHAP, and 

Commercial and Industrial Solid Waste Incinerators NESHAP. 

40 Major Source Boilers NESHAP and Commercial and Industrial 

Solid Waste Incinerators NESHAP.

41 Commercial and Industrial Solid Waste Incinerators: NESHAP. 
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position. Thus, the EPA is adopting the language from the 

proposal and revising the contaminant legitimacy criterion for 

NHSM used as a fuel to allow contaminants to be compared on a 

contaminant-by-contaminant basis or, where reasonable, on a 

group of contaminants-by-group of contaminants basis. Any 

additional reasoning for keeping the revision as proposed, 

without modification, is described in the responses to comments 

below. 

Comment: In general, comments overwhelmingly supported the 

ability to group contaminants when making contaminant 

comparisons in accordance with the legitimacy criteria. 

Commenters stated that codification of this concept would 

provide regulatory certainty and allow for more meaningful 

comparisons, similar to the manner in which the EPA measures 

emissions at combustion units. Commenters noted that the ability 

to group contaminants will facilitate compliance because most 

existing test methods, including the EPA methods, call for the 

grouping of analytes. Commenters believed that the grouping 

concept is an appropriate mechanism to recognize the variability 

in contaminant levels inherent in fuels. Commenters also 

appreciated the examples of appropriate contaminant groups 

provided in the proposed rule along with the ability to compare 

other technically reasonable groups (76 FR 80477-80480). 
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 Two commenters stated that each mention of the word 

“contaminants” should be changed to “contaminants or groups of 

contaminants” in the regulatory text to further clarify that a 

comparison to groups of contaminants is intended. 

Response: The EPA has retained the language specifically 

allowing grouping in the contaminant legitimacy criterion for 

NHSMs used as a fuel. The EPA adopts the reasoning in the 

December 2011 rule as its final reasoning, as further supported 

with reasoning discussed in the comment responses below. While 

the EPA has retained the language allowing the grouping of 

contaminants, the Agency does not consider it necessary to 

change every instance of “contaminant levels” and “contaminants” 

to “contaminants or groups of contaminants” in order to make it 

sufficiently clear that contaminant grouping is allowed. The 

Agency also notes that not all contaminants are necessarily 

intended to be grouped, including individual elemental 

contaminants, asbestos, carbon monoxide, and phosphine.42 

Comment: The ability to group metal contaminants was suggested 

by several commenters. One commenter held that all eleven metals 

should be specifically included as one group. Another commenter 

noted that with the exception of mercury, all metals should be 

grouped. Yet another commenter suggested that metals could be 

 

42 See 76 FR 80478, Tables 7 and 8. 
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grouped into a volatile metals group and a non-volatile metals 

group. 

Response: First, we would note that the Agency is not limiting 

groups to the specific approach suggested in the proposed rule—

that is, the tables in the proposed rule suggest, but do not 

limit persons to, an approach, including groups for total 

organic halogens, nitrogenated HAPs, VOCs, SVOCs, 

dioxins/furans, PCBs, PAHs, and radionuclides, with other 

contaminants left to be evaluated on an individual contaminantby-contaminant basis. Flexibility exists for persons to consider 

other appropriate groups that they can show are technically 

reasonable, with additional text in the proposal stating that 

other groups should share physical and chemical properties that 

influence behavior in the combustion unit prior to the point 

where emissions occur. Volatility, the presence of specific 

elements, and compound structure are three such properties.43 

However, we do not consider the grouping of total metals to 

be appropriate. Specifically, metals vary across all three 

parameters—volatility, the presence of specific elements, and 

compound structure—that were discussed as appropriate to 

consider when constructing contaminant groups. First, many 

factors influence metal volatility in combustion units, and to 

 

43 See 76 FR 80477. 
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the extent that trends in metal volatility have been recognized, 

a wide disparity exists between metals. Mercury, as one 

commenter noted, is highly volatile, more so than any other 

metals listed in the contaminants definition. Metals can be 

grouped into volatile, semi-volatile, and low-volatile 

categories, but it is important to note that these distinctions 

can vary based on design differences in combustion units, 

operating temperatures, the physical form and species of the 

metal, and the presence of chlorine.44,45 Second, each metal 

clearly contains different elements. Finally, each metal is 

already a group of any compound containing the particular 

element, encompassing a wide array of compound structures. In 

the absence of other suggested grouping criteria or information, 

the EPA does not consider total metals to be an appropriate 

group. 

 Comment: One commenter provided a numerical example of VOC 

contaminant levels in fuel oils to illustrate the importance of 

grouping. The commenter cited the traditional fuel tables 

provided on the EPA website, stating that toluene and xylenes 

are present in fuel oils at concentrations up to 380 ppm and 

 

44 EPA. 2001. “Risk Burn Guidance for Hazardous Waste Combustion 

Facilities.” EPA530-R-01-001. July. 

45 Clarke, L.B. and L.L. Sloss, 1992. “Trace Elements – Emissions 

from Coal Combustion and Gasification.” IEACR/49. IEA Coal 

Research, London. July. 
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3,100 ppm, respectively. If a NHSM had the concentrations 

reversed, explained the commenter (380 ppm xylene and 3,100 ppm 

toluene), the ability to group VOCs would then allow the NHSM to 

meet the contaminant legitimacy criterion. The commenter 

reasoned that this is appropriate because both toluene and 

xylenes are beneficial components of fuel. 

Response: The EPA disagrees with this interpretation of the 

grouping concept. Unless concentration data for a group of 

contaminants (e.g., VOCs) come from the same fuel source, adding 

together the concentrations of individual constituents (e.g., 

toluene and xylene) within that group may yield a total 

concentration beyond what would be considered a normal part of a 

legitimate fuel. Using the example cited by the commenters, some 

fuel oils have been found to have up to 380 ppm toluene, and 

other fuel oils have been found to have up to 3,100 ppm xylene. 

Because the toluene and xylene concentrations were taken from 

different fuel oils , however, this does not prove that a single 

fuel oil in existence actually has VOC levels as high as 3,480 

ppm (380 + 3,100). 

The Agency notes that VOC levels higher than as 3,480 ppm, 

have been found in fuel oil -- concentrations of one VOC alone 

(hexane)have been found as high as 10,000 ppm -- and the point 
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of this discussion is to clarify a methodology rather than a 

number for acceptable VOC levels in NHSMs.46 

We would also note that while the Agency considers VOCs to 

be an appropriate contaminant group to use when making 

contaminant comparisons, it does not base that decision on 

whether or not toluene, xylenes, and other VOCs are “beneficial 

components of fuel.” The decision that toluene, xylene, and 

other VOCs, which the Agency notes are pollutants listed in CAA 

section 112(b), are an appropriate group is based on the fact 

that they share similar physical and chemical properties that 

influence their behavior in the combustion unit prior to the 

point where emissions occur. 

c. Meaning of Designed to Burn 

The December 2011 proposed revision to the contaminant 

legitimacy criterion for NHSMs used as a fuel included the 

following statement: “In determining which traditional fuel(s) a 

unit is designed to burn, persons can choose a traditional fuel 

that can be or is burned in the particular type of boiler, 

whether or not the combustion unit is permitted to burn that 

 

46 Contaminant Concentrations in Traditional Fuels: Tables for 

Comparison, November 29, 2011 can be found at 

http://www.epa.gov/epawaste/nonhaz/define/index. EPA intends to 

update this document as additional data becomes available, and 

if persons have data measuring traditional fuels for groups of 

VOCs, or for other contaminant groups, they are encouraged to 

provide the Agency with such data.
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traditional fuel.” The idea that “designed to burn” means “can 

burn or does burn” was included in preamble text to the March 

2011 final rule. The December 2011 rule proposed to include this 

concept in regulatory language. 

The March 2011 final rule explained that in determining 

which traditional fuel(s) the owner or operator of the boiler 

unit would make a comparison to with respect to contaminant 

levels, the Agency would allow any traditional fuel(s) that can 

be or is burned in the particular type of boiler. The Agency 

reasoned that this approach was the most appropriate since the 

NHSM would be replacing the use of particular type(s) of fuel 

that could otherwise be burned.47

The December 2011 proposal further explained that 

contaminants are compared between NHSMs and traditional fuels to 

assist in making a determination whether or not the NHSM is 

being discarded when combusted, not to regulate which 

traditional fuel a combustor should choose to burn. For the 

purposes of making a discard determination, the proposal 

reasoned that differentiating between “can burn” and “does burn” 

was not relevant. 

The Agency did note in the proposed rule, however, that for 

a unit to be able to burn a traditional fuel, it would need an 

 

47 See 76 FR 15542. 
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appropriate feed mechanism (e.g., a way to load solid fuel of a 

particular size into the unit) and the ability to adjust 

physical parameters to ensure spatial mixing and flame stability 

per unit specifications. 

Because most combustion units can burn different—but 

related—traditional fuels, the Agency discussed in the proposal 

that broad groups of similar traditional fuels may be used when 

comparing contaminants. The most common traditional fuel 

categories burned at major source boilers are coal, wood, oil, 

and natural gas, as evidenced by data submitted to the EPA’s 

Office of Air Quality Planning and Standards.48,49 

To further clarify the impact of the proposed “designed to 

burn” language on contaminant comparisons, potential categories 

for coal, wood and oil were further described in the proposal. A 

coal group was proposed that could include data on anthracite, 

lignite, bituminous, and sub-bituminous coal. A wood or biomass 

group was proposed that could include data on unadulterated 

lumber, timber, bark, biomass, and hogged fuel. An oil group was 

 

48 EPA, Office of Air Quality Planning and Standards (OAQPS), 

Emissions Database for Boilers and Process Heaters Containing 

Stack Test, CEM & Fuel Analysis Data Reported Under ICR No. 

2286.01 and ICR No. 2286.03 (Version 7). December 2011. 

http://www.epa.gov/ttn/atw/boiler/boilerpg.html#TECH. 49 The fuel analysis information in this OAQPS database is one 

example of a “national survey” of traditional fuel information, 

as referenced in the final contaminant legitimacy criterion 

issued today at §241.3(d)(1)(iii). 
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proposed that could include data on fuel oils 1-6, diesel fuel, 

kerosene and other petroleum based oils.50,51 In cases where a 

unit can burn traditional fuels from several categories, such as 

a boiler that can burn coal or biomass, the proposal noted that 

contaminant comparisons could be made using data from either 

fuel category at the combustor’s discretion. 

The EPA believes that comments have not changed the basis 

for its interpretations of the “designed to burn” concept. Thus, 

the EPA is adopting the language from the proposal and revising 

the contaminant legitimacy criterion for NHSMs used as a fuel to 

allow persons to choose a traditional fuel that can be or is 

burned in the particular type of boiler, whether or not the 

combustion unit is permitted to burn that traditional fuel. Any 

additional reasoning for keeping the revision as proposed, 

without modification, is described in the responses to comments 

below. 

 

50 EPA has determined that an oil group should not include 

unrefined crude oil or gasoline, as neither is typically burned 

in combustion units subject to the CAA sections 112 or 129 

standards. 

51 Used oil is a special case and does not need to undergo the 

contaminant comparison. If it meets the specifications in 40 CFR 

part 279.11, it is a traditional fuel. If it does not meet the 

specifications (i.e., it is “off-spec” oil), it is a solid 

waste, as explained in the preamble to the March 2011 final 

rule.
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Comment: Industry commenters generally supported the Agency’s 

proposal to codify the previously stated meaning of “designed to 

burn” within the contaminant legitimacy criterion for NSHMs used 

as fuels. These commenters welcomed the regulatory certainty 

provided by the revision, and described it as a practical and 

appropriate recognition that some units can burn multiple 

traditional fuels. 

 Environmental groups, on the other hand, expressed concern 

that the proposed definition of designed to burn would allow 

contaminants in C&D wood to be compared to those in coal instead 

of virgin wood. 

One state commenter also expressed concern that allowing 

comparisons to any fuel the unit could burn, including fuels 

they are not permitted to burn, would weaken the states’ 

permitting authorities and create an incentive for combustors to 

burn dirtier traditional fuels so that they could compare NHSMs 

to fuels with higher contaminant levels. An industry commenter 

also mentioned that such an approach would reward facilities 

that burn dirtier fuel and suggested that the Agency remove the 

entire “designed to burn” concept from the rule. 

Response: Based on a review of the comments, the EPA has 

retained the proposed revision to the contaminant legitimacy 

criterion for NHSMs used as fuels specifying that “designed to 
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burn” means that a facility can burn a particular fuel 

regardless of its permit status. The Agency disagrees that this 

definition of “designed to burn” would incentivize the burning 

of dirtier fuels or weaken the states’ permitting authorities. 

The EPA finds that allowing combustors to compare NHSMs to 

any traditional fuel a unit can or does burn is both practical 

and appropriate under the statutory definition of solid waste. 

Many combustion units can burn multiple traditional fuels, and 

some of these units routinely switch back and forth between 

different fuel types based on availability of fuel supplies, 

market conditions, power demands, and other factors. Under these 

circumstances, it would be arbitrary to restrict the combustion 

for energy recovery of NHSMs with contaminant levels comparable 

to or lower than that of one traditional fuel the unit could 

choose to burn solely because contaminant levels are higher than 

that of a second traditional fuel the unit could also choose to 

burn, or may burn the following week. Such an approach would be 

impracticable and not consistent with the Agency’s intent. It 

would also be inconsistent with the concept of discard, since a 

facility burning a NHSM with the same contaminants as a fuel it 

could also be burning should not be considered to discard that 

NHSM based on its contaminant levels. 
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The Agency has also determined that restricting comparisons 

to traditional fuels the unit is permitted to burn is 

unnecessary. The fact that a facility is not currently permitted 

to burn a particular traditional fuel does not mean it could not 

be permitted to burn that traditional fuel in the future. For 

this reason, we do not believe it is reasonable to limit the 

comparison to permitted traditional fuels. Furthermore, such a 

restriction could have the unintended consequence of combustion 

facilities across the country seeking permit modifications 

solely to facilitate contaminant comparisons for this rule. 

State permitting authorities must still approve permit changes 

and this final rule does not affect the discretion of the 

permitting authorities in acting on requests for permit 

modifications. 

In addition, the EPA has determined that restricting 

contaminant comparisons to traditional fuels the unit currently

burns could provide an incentive for the facility to burn 

traditional fuel with high contaminant levels. When facilities 

do not actually have to burn that traditional fuel to make 

comparisons, that incentive is effectively removed. 

Comment: One commenter asked the Agency to specifically 

acknowledge that certain categories of boilers are designed to 

burn a variety of fuels, noting that stoker boilers, fluidized 
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bed combustors, and boilers with suspension burners in 

particular should be on such a list. 

Response: The EPA acknowledges that combustion units exist that 

can and do burn multiple types of fuels, including some 

facilities that can burn solid and liquid fuels. In such cases, 

contaminant levels in NHSMs can be compared to contaminant 

levels in any of the traditional fuels the unit can or does 

burn. However, the Agency has decided not to specifically list 

which combustion units are designed to burn which fuels for two 

reasons. First, the owner or operator of a combustion unit has a 

better understanding than the Agency does of what that 

particular unit is designed to burn. Second, the Agency is 

concerned that creating such a list will limit the flexibility 

of combustors with other types of units. 

Comment: One commenter noted that if the EPA considers it 

inappropriate to compare liquid fuels to solid fuels, the Agency 

offers no justification for its position. The commenter argued 

that liquid to solid comparisons should be allowed because most 

cement kilns and many other industrial furnaces have the 

capacity to burn either solid or liquid fuels. The commenter 

described the December 2011 proposed rule as ambiguous with 

regard to this issue and recommended that if a combustion unit 
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is designed to burn both a liquid fuel and a solid fuel, then 

the liquid to solid comparison should be “appropriate.” 

Response: The EPA acknowledges that many combustion units can 

burn multiple traditional fuels. Under these circumstances, the 

Agency agrees that it would be arbitrary to restrict the 

combustion for energy recovery of NHSMs with contaminant levels 

comparable to or lower than that of one traditional fuel a unit 

could burn solely because contaminant levels are higher than 

that of a second traditional fuel the unit could also choose to 

burn, or may burn the following week. 

Accordingly, the EPA codified in today’s final rule the 

concept that “designed to burn” means can burn or does burn, 

regardless of a unit’s permitting status, in the revised 

contaminant legitimacy criterion. The Agency has determined that 

this revision is sufficient to allow appropriate comparisons to 

be made between solid NHSMs and liquid traditional fuels, and 

vice versa; this would only be appropriate, however, when the 

combustion unit can burn all traditional fuels used to make such 

comparisons. 

Comment: Several industry commenters addressed the topic of what 

it means to be able to burn a traditional fuel in a combustion 

unit. The preamble to the recent proposed rule noted that 

combustion units would need an appropriate feed mechanism, as 
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well as the ability to ensure the fuel is well mixed and keep 

flame temperatures within unit specifications, to be able to 

burn a traditional fuel.52 Two commenters opposed the Agency’s 

interpretation of what it means to be able to burn a traditional 

fuel in a combustion unit, stating that the Agency provides no 

explanation of why feed mechanisms are relevant to whether or 

not a unit can burn a particular fuel. Both commenters also 

noted that when NHSMs are used as a fuel in combustion units, 

the focus on what a unit is “designed to burn” in the first 

place is irrelevant to whether discard is occurring. Another 

commenter explained that the same exact material could then be a 

solid waste in one case and a fuel in another case, depending on 

who is using the material. 

A third commenter supported the Agency’s interpretation of 

what ‘can burn’ means, stating that the fate and emissions of a 

contaminant, whether it is contained in a traditional fuel or a 

material being considered for legitimacy, are as dependent on 

the design of the combustion unit as they are on the fuel 

matrix. The commenter explained further that units should be 

considered able to burn several types of fuels as long as each 

type is within the design criteria of the feed system, the 

combustion chamber, and any downstream pollution control device. 

 

52 See 76 FR 80481. 
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Response: The EPA disagrees with those commenters questioning 

the relevance of what fuels combustion units are designed to 

burn in the context of the legitimacy criteria. If a NHSM does 

not contain contaminants at levels that are comparable to or 

lower than those found in any traditional fuel that a combustion 

unit could burn, then it follows that discard could be occurring 

if the NHSM were combusted. Whether contaminants in these cases 

would be destroyed or discarded through releases to the air, 

they could not be considered a normal part of a legitimate fuel, 

and the NHSM would be considered a solid waste when used as a 

fuel in that combustion unit.53 

The reason we analyze what a unit is designed to burn is to 

decide the traditional fuel(s) to which contaminants should be 

compared. This comparison is then used as an aid to decide 

whether the NHSM is being legitimately used as a fuel, or 

whether excess contaminants show that the burning is waste 

treatment. If a facility compared contaminants to a traditional 

fuel it cannot burn and that fuel is highly contaminated, a 

facility would then be able to burn excessive levels of waste 

components in NHSMs as a means of discard. Regardless of any 

fuel value in the material, it would be a waste. 

 

53 See 76 FR 15523. 
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Once this concept is established, certain factors are 

relevant to how we decide what a facility is designed to burn. 

The ability to burn a fuel in a combustion unit does have a 

basic set of requirements, the most basic of which is being able 

to get the material into the combustion unit. The Agency 

reaffirms in today’s final rule its interpretation from the 

proposal that to be able to burn NHSMs, a combustion unit should 

also be able to ensure the material is well mixed and maintain 

temperatures within unit specifications. Without these basic 

limits, there would be no point in distinguishing between fuels 

a unit is or is not “designed to burn,” and every combustion 

unit would be considered “designed to burn” any combustible 

material. Clearly, that is not the Agency’s intent. As 

illustrated by one of the commenters, when a unit cannot burn a 

fuel according to its own design specifications (i.e., the unit 

is not designed to burn such a fuel), excess air pollutants form 

and are likely to be discarded as emissions. Thus, the Agency 

acknowledges that whether or not a NHSM is a waste may depend on 

the unit burning the material. 

Comment: One commenter asked for clarification on the issue of 

unit modifications. If a boiler hypothetically could be modified 

in any way to combust a different traditional fuel, the 
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commenter noted, then a comparison to that fuel should be 

permissible to demonstrate that the NHSM is not a waste. 

Response: The EPA disagrees with this comment. As long as the 

modification remains hypothetical in nature, it stands to reason 

that the unit cannot yet burn the additional traditional fuel 

and the only reason it is comparing a NHSM to the dirtier fuel 

is to allow more waste input into the combustion unit. However, 

if the unit is actually modified to accept additional types of 

traditional fuels, then the owner or operator of the combustion 

unit can consider those traditional fuels in evaluating the NHSM 

for the contaminant legitimacy criterion. In this situation, 

such behavior shows that the combustor is serious about burning 

the other fuel and is willing to make the investment so that it 

can be burned properly instead of simply trying to gain 

comparison to a dirtier material. 

Comment: Commenters argue that the EPA has not adequately 

addressed how units designed to burn only NHSMs are to comply 

with the contaminant legitimacy criterion. The commenters 

explained that, under the rule structure as proposed, a NHSM may 

be classified as a waste simply due to a lack of a traditional 

fuel for comparison purposes. Comments acknowledge that the 

Agency discussed the issue in the preamble to the proposed rule, 

but the commenters disagree that the discussion provided any 
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solution. Finally, commenters specifically requested that the 

EPA acknowledge the fact that a combustor designed for a 

particular NHSM fuel is dispositive that the NHSM is being 

legitimately burned for energy recovery. 

Response: The EPA disagrees with the assertion that the Agency 

has failed to provide a solution for units designed only to burn 

NHSMs as fuels. The EPA also disagrees with the assertion made 

by commenters that the fact that a combustor has designed a 

combustion unit for a particular NHSM fuel is dispositive that 

the NHSM is being legitimately burned for energy recovery. 

The EPA acknowledges and is aware of units designed 

specifically to burn NHSMs. One example is facilities designed 

to burn resinated wood. The EPA notes that units built to burn 

such NHSMs are likely to be able to burn similar traditional 

fuels. Using the example of the unit designed to burn resinated 

wood, the EPA considers it reasonable to assume that the unit 

could also burn clean wood and, therefore, could make 

comparisons to that traditional fuel. The Agency also notes that 

is it not aware of any units—and commenters have not identified 

any such units—that can burn only NHSMs. 

The EPA has nonetheless provided what it considers to be a 

reasonable solution. As explained in the preamble to the 

proposed rule, the EPA advises combustors faced with such a 
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situation to compare solid NHSMs to solid traditional fuels, 

such as coal or biomass, liquid NHSMs to liquid traditional 

fuels, such as oil, and gaseous NHSMs to gaseous traditional 

fuels, such as natural gas.54 In light of the explanation of 

“designed to burn” codified in the final contaminant legitimacy 

criterion, as well as industry comments that many combustion 

units can burn multiple types of fuel, the Agency believes that 

its suggested approach adequately addresses the issue. 

Finally, the EPA acknowledges that combustion units can and 

have been designed specifically to burn NHSMs, and that such 

units can recover energy. The Agency notes, however, that 

persons can and have also designed incinerators to dispose of 

certain waste materials, and that such units can also recover 

energy. The Agency, therefore, does not consider it dispositive 

that if combustion units are designed to burn a specific 

material, that material must be a legitimate non-waste fuel. 

d. Contaminant Comparisons Allowed

The proposed revision to the contaminant legitimacy 

criterion for NHSMs used as a fuel included the following 

statement: “In comparing contaminants between traditional 

fuel(s) and a non-hazardous secondary material, persons can use 

ranges of traditional fuel contaminant levels compiled from 

 

54 See 76 FR 80481. 
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national surveys, as well as contaminant level data from the 

specific traditional fuel being replaced.” The March 2011 final 

rule did not discuss the use of ranges when evaluating 

contaminant data, nor did it discuss the use of traditional fuel 

data from national surveys. 

The December 2011 proposed rule included these concepts to 

clarify that persons are not required to adhere to a single 

comparison methodology, nor are they required to compare 

contaminants in their NHSMs to contaminants in the specific 

traditional fuel source they burn (or would otherwise burn). In 

both instances, the additional language clarifies, but does not 

change the intent, of the March 2011 final rule. 

Regardless of the specific methodology chosen, a comparison 

will have to be made for each contaminant or group of 

contaminants between the NHSM and a traditional fuel or 

traditional fuel group. Generators or combustors can use either 

traditional fuel data collected by the EPA or their own data for 

traditional fuel comparison values.55 Generators or combustors 

are responsible, however, for either providing NHSM comparison 

values in cases where testing is conducted. Examples of 

 

55 The EPA maintains an NHSM webpage with current information on 

contaminant levels in traditional fuels, examples of legitimacy 

determinations, and other information at 

http://www.epa.gov/epawaste/nonhaz/define/index. 
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acceptable NHSM data could include both laboratory test results 

from a specific generator or combustor and industry-recognized 

values provided by a national trade organization. 

Given data for a particular traditional fuel, the EPA noted 

in the proposal that many combustors would choose to base the 

traditional fuel comparison value on the upper end of its 

statistical range and that this approach was reasonable. 

Anything less could result in “traditional fuel” samples being 

considered solid waste if burned in the very combustion units 

designed to burn them—not the Agency’s intent in the March 2011 

final rule.56 Given that selection (i.e., the range for 

traditional fuel contaminant values), the Agency noted that 

acceptable NHSM comparison values would include the upper end of 

a statistical range, a calculation involving the mean and 

standard deviation, or perhaps a single data point in situations 

where data are limited. The proposal reasoned that it would not 

be appropriate to compare an average NHSM contaminant value to 

the high end of a traditional fuel range, as the existence of an 

average implies multiple data points from which a more suitable 

 

56 Traditional fuels, as defined in §241.2, are not required to 

meet the legitimacy criteria, and this scenario is only used to 

explain the logic behind basing a traditional fuel comparison 

value on the upper end of a statistical range.
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statistic (e.g., range or standard deviation) could have been 

calculated. 

If each NHSM comparison value is comparable to or lower 

than its corresponding traditional fuel value, the material 

would be considered to meet the contaminant legitimacy 

criterion. An initial assessment would not need to be repeated, 

explained the proposal, provided the facility continues to 

operate in the same manner and use the same type of NHSMs as 

when the original assessment was made. 

Despite presenting several approaches for calculating NHSM 

comparison values, such as the upper end of a statistical range 

or a calculation involving the mean and standard deviation, the 

proposal did not preclude other reasonable methodologies. In the 

context of an inspection or enforcement action, the Agency will 

evaluate the appropriateness of alternative methodologies and 

data sources on a case-by-case basis when determining whether 

the contaminant legitimacy criterion has been met. 

The EPA noted in the proposal that contaminant testing is 

not required and that process knowledge may be sufficient for 

particular contaminants in particular NHSMs. Even when 

analytical testing is not necessary, the EPA’s regulations 

governing recordkeeping for units subject to emissions standards 

for boilers and process heaters issued pursuant to CAA section 
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112 require keeping a record to document the basis of non-waste 

determinations under the part 241 criteria (including the 

contaminant legitimacy criteria). See 40 CFR 40 CFR 

63.11225(c)(2)(ii) for area source boilers and 40 CFR 40 CFR 

63.7555(d)(2) for major source boilers. 

The EPA believes that the comments have not changed the 

basis for its decision to allow the use of ranges and surveys of 

traditional fuel contaminant levels. Nor have comments changed 

the Agency’s position that similar traditional fuels may be 

grouped for comparison purposes and that testing is not required 

in all cases. Thus, the EPA is adopting the reasoning from the 

proposal and adjusting the contaminant legitimacy criterion 

accordingly for NHSM used as a fuel. 

The EPA has decided, however, to make a modification to the 

regulatory language of the December 2011 proposed rule based on 

comments received. The final criterion issued today includes 

additional language clarifying the appropriate use of ranges 

when making contaminant comparisons between NHSMs and 

traditional fuels. Consistent with the rationale provided in the 

preamble to the proposed rule, additional language now states 

that in order to use the full range of contaminant values in 

traditional fuels, persons should also account for the 

variability in NHSM contaminant levels. Any additional reasoning 
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for finalizing the revision with or without suggested 

modifications is described in the responses to comments below. 

Comment: Industry comments supported the proposed changes 

expressly allowing the use of ranges and national surveys of 

traditional fuel data, as did one state comment. One commenter 

stated that these changes provide a more practical approach to 

meeting the contaminant legitimacy criterion that recognizes the 

inherent variation of contaminants in NHSMs and traditional 

fuels. Several commenters supported the use of ranges by 

repeating the EPA’s rationale from the proposal that using 

anything lower would logically result in a determination that 

some traditional fuels should not be burned in combustion units 

designed to burn those fuels. Another commenter stated that 

these clarifications describe appropriate methods of handling 

data that are naturally variable and will result in fewer nonwaste materials being arbitrarily identified as wastes. 

Environmental groups did not comment on the use of national 

surveys of traditional fuel data, but they opposed the use of 

ranges to evaluate contaminants, expressing concern that C&D 

wood contaminant levels would be compared to the highest

contaminant levels for coal. These commenters suggested that 

averages or medians be used instead. 
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Response: Based on our review of the comments received, the EPA 

is retaining the approach outlined in the proposed rule to 

expressly allow the use of ranges and traditional fuel data from 

national surveys. As discussed in the proposed rule, the EPA 

considers it reasonable to allow combustors to use the range of 

contaminant levels present in traditional fuels because anything 

less could result in “traditional fuel” samples being considered 

solid waste if burned in the very combustion units designed to 

burn them. For this reason, the Agency disagrees with comments 

stating that combustors should be limited to use of the average 

or median concentrations. 

The EPA acknowledges that the revisions adopted as final in 

today’s rule would allow C&D wood contaminant levels to be 

compared to the highest contaminant levels for coal. The 

commenters do not specify, however, what C&D wood contaminant 

levels (averages or ranges) they are concerned would be compared 

to the highest levels in coal. The Agency points out that the 

proposed revisions were not intended to allow average C&D wood 

contaminant levels to be compared to the highest levels in coal. 

In light of the concerns expressed by these commenters, the EPA 

has modified the proposed language to provide additional 

assurance that such average-to-maximum comparisons, which the 

Agency has already determined are inappropriate, will not be 
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allowed under today’s final rule. The EPA has decided that such 

comparisons are inappropriate because, following the logic 

stated in the March 2011 final rule, average-to-maximum 

comparisons do not demonstrate that contaminants in these cases 

could be considered a normal part of a legitimate fuel and are 

not being discarded.57 

Today’s final criterion makes clear that the full range of 

traditional fuel contaminant values can only be used if persons 

also consider some measure of variability in the NHSM 

contaminant data. This will help to ensure that average to 

maximum comparisons will not be used to justify the combustion 

of NHSMs as non-waste fuels. 

Comment: Industry comments supported the concept discussed in 

the proposed rule that the contaminant legitimacy criterion does 

not require the testing of contaminant levels in NHSMs in all 

cases. The proposal noted that persons can instead use expert or 

process knowledge to justify decisions to rule out certain 

constituents. The proposal also noted that initial assessments 

would not need to be repeated, provided the facility continues 

to operate in the same manner and use the same type of NHSMs as 

when the original assessment was made. One commenter asked the 

EPA to confirm these statements, explaining that this policy 

 

57 See 76 FR 15523. 
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will result in fewer NHSMs being arbitrarily identified as 

wastes. Another commenter stated that the flexibility provided 

by this policy will help ensure that regulated entities with 

varying levels of sophistication can better document that their 

NHSMs are non-waste fuels. 

Environmental groups, on the other hand, commented that the 

EPA must require testing for contaminants, citing the extremely 

variable nature of C&D wood as a problem. Commenters expressed 

concern that a large amount of material is going to be generated 

as abandoned and foreclosed housing is torn down, and the 

potential for liberating vast amounts of lead and other urban 

toxics, to say nothing of arsenic and chromium from pressuretreated wood, has never been higher. 

Response: Based on a review of the comments received, the EPA is 

maintaining its position that contaminant testing is not 

required in all situations. Requiring testing in some situations 

is unnecessary. Where a NHSM generator, processor, or combustor 

knows a contaminant will either not be present or be present at 

a level below that in the appropriate traditional fuel or 

traditional product, the Agency believes it is a reasonable and 

practical policy to allow persons to rely on either process 

knowledge or previous testing of the same material. 
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The Agency notes that there will be instances where testing 

is conducted and comparisons will have to account for the 

variability of contaminant levels in NHSMs, including lead 

concentrations in C&D wood. The Agency also notes that today’s 

final rule does not change its previously stated position that 

chromated copper arsenate-treated wood (CCA wood) would likely 

have contaminant levels not comparable to traditional fuels.58 

Comment: One commenter requested that the EPA clarify what it 

means by the upper end of the statistical range. Citing the 

EPA’s statement in the proposal that “it makes sense to base the 

traditional fuel comparison on the upper end of the statistical 

range,”59 the commenter asked for confirmation that the maximum 

values in the traditional fuel data set can be used for 

comparison with a NHSM since all data corresponding to the 

traditional fuel are valid for comparison, not just values that 

are below some arbitrarily determined statistical parameter. 

Response: The word ‘ranges’ in the proposed contaminant 

legitimacy criterion has been changed to ‘the full range’ in the 

final criterion issued today. This term more clearly indicates 

the Agency’s intent to include all true values in between the 

minimum and the maximum. 

 

58 See 75 FR 31872. 

59 See 76 FR 80481.
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The Agency has also separated the concepts of ranges and 

traditional fuel survey data in the regulatory language in order 

to make the criterion more transparent. The pertinent regulatory 

text in today’s final rule reads as follows: “In comparing 

contaminants between traditional fuel(s) and a non-hazardous 

secondary material, persons can use data for traditional fuel 

contaminant levels compiled from national surveys, as well as 

contaminant level data from the specific traditional fuel being 

replaced. To account for natural variability in contaminant 

levels, persons can use the full range of traditional fuel 

contaminant levels, provided such comparisons also consider 

variability in non-hazardous secondary material contaminant 

levels.” 

Comment: Several commenters noted that the Agency proposed to 

allow the use of “national” surveys of traditional fuel data in 

the proposed contaminant legitimacy criterion and included 

several international data sources in its “Contaminant 

Concentrations in Traditional Fuels: Tables for Comparison” 

document.60 Several commenters asked that the word ‘national’ be 

removed from the contaminant legitimacy criterion. Other 

 

60 The EPA maintains a NHSM webpage with current information on 

contaminant levels in traditional fuels, examples of legitimacy 

determinations, and other information at 

http://www.epa.gov/epawaste/nonhaz/define/index. 
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commenters asked that the EPA either remove the word ‘national’ 

or clarify that international data and surveys from other 

nations are also acceptable data sources. 

Response: The EPA has retained the proposed language, including 

the word “national,” which expressly allows national surveys of 

traditional fuel data to be used in contaminant comparisons for 

NHSMs used as a fuel in combustion units. A statement that 

national surveys can be used does not preclude the use of 

appropriate international data. In fact, as the commenters 

recognize, the EPA included several international sources in its 

analysis of traditional fuels. These international sources were 

limited, however, to situations where no data or minimal data 

could be found from national sources or the Agency had no reason 

to believe that data from national sources would be 

significantly different. At issue is whether the data are 

representative of traditional fuels that are purchased and 

burned at operating boilers in the United States. The Agency has 

decided that it is reasonable to assume that national surveys of 

traditional fuels contain information about fuels purchased and 

burned at operating boilers in the United States. 

Comment: One commenter argued that the traditional fuel database 

compiled by the EPA should include the USGS coal data from not 
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only the U.S., but also from around the world because those 

fuels are currently in use. 

Response: The EPA has maintained its decision not to reference 

the United States Geological Survey (USGS) COALQUAL database in 

its traditional fuel contaminant tables. It is the Agency’s 

understanding that the COALQUAL database contains trace metal 

analyses for coal and associated rocks taken directly from coal 

beds throughout the United States and that not all of these coal 

beds are currently being mined. It is also the Agency’s 

understanding that as-mined coal typically undergoes a series of 

processing steps, including crushing, screening, washing, and 

physical separation techniques to remove rock and other 

impurities prior to being blended into clean, graded, and 

uniform coal products suitable for use in commercial boilers.61 

In comparison, the EPA contaminant tables referenced by 

commenters are based largely on a comprehensive dataset that 

contains approximately 32,000 records of pre-combustion 

contaminant analyses performed on coal, wood, biomass, and fuel 

oil samples that were actually used as fuel at boilers across 

the country. Thus, the Agency has decided that the EPA dataset 

is more representative of contaminant levels in coal actually 

 

61 Speight, J.G. Synthetic Fuels Handbook: Properties, Process, 

and Performance. McGraw-Hill, 2008. pg 141. 
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burned at operating boilers than the COALQUAL database. As a 

result, the EPA has decided not to use the COALQUAL database in 

developing the tables posted on the Agency’s website. 

We would also note that the decision not to use USGS data 

is consistent with the Agency’s position that product fuel oils, 

as opposed to virgin crude oil, should be measured for purposes 

of contaminant comparisons. As stated in the proposed rule, 

neither unrefined crude oil nor gasoline is typically burned in 

combustion units regulated by CAA sections 112 and 129. 

Similarly, as-mined coal is not typically burned in combustion 

units regulated by CAA sections 112 and 129. 

Comment: One commenter suggested that for each contaminant or 

group of contaminants, either the Upper Confidence Limit (UCL) 

of the mean at a 90 percent confidence level or the Upper 

Prediction Limit (UPL) at a 90 percent confidence level for 

NHSMs could be compared to the maximum value for the appropriate 

traditional fuel. 

Response: First, we would note that in the preamble to the 

recent proposed rule, the EPA indicated that when compared to 

the full range of contaminants in traditional fuels, suitable 

measures of NHSM contaminants would include the upper end of a 

statistical range, a calculation involving the mean and standard 

deviation, or perhaps a single data point in situations where 
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data are limited. The Agency also noted that the discussion in 

the preamble did not preclude “other reasonable methodologies.”62 

With respect to the specific approaches suggested by the 

commenters, the EPA agrees with the approach of comparing the 

UPL at a 90 percent confidence level for each contaminant or 

group of contaminants in NHSMs to the maximum value for each 

contaminant or group of contaminants in the appropriate 

traditional fuel. Specifically, the UPL is an indicator of what 

a future measurement would be. In the context of NHSM 

contaminant levels, the UPL taken at a 90 percent confidence 

level would yield a number, and a combustor could be confident 

that 90 percent of the time, the next measured contaminant level 

would be at or below that number. The UPL considers both the 

variability of the contaminant distribution and the uncertainty 

surrounding what the true mean is. The comment suggested taking 

a maximum value for traditional fuel contaminant levels and 

comparing it to the UPL at a 90 percent confidence level. 

Because both metrics account for the variability present in 

contaminant distributions, the EPA would consider this approach 

to be a reasonable methodology. 

The EPA does not agree, however, with an approach of using 

the UCL of the mean. That is, the UCL of the mean, regardless of 

 

62 See 76 FR 80481. 
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the confidence level, is a measure of the mean and does not 

adequately factor in the variability present in both NHSMs and 

traditional fuel contaminant levels. The metric would be 

appropriate for a mean to mean comparison, but that is not what 

the commenter suggested. The comment suggested taking a maximum 

(which takes full advantage of the variability present in 

traditional fuel contaminant levels) and comparing it to a mean 

(which ignores the variability present in NHSM contaminant 

levels). The EPA does not consider this approach to be a 

reasonable methodology. 

To be clear, the EPA does not object to the use of 

confidence limits, or to the use of the upper confidence limit 

of the mean, on their own grounds. However, the Agency believes 

it is inappropriate to make a comparison of mean contaminant 

levels in NHSMs to maximum contaminant levels in traditional 

fuels. 

Comment: One commenter suggested that the EPA allow entities to 

compare contaminants between NHSMs and traditional fuels on a 

pound of contaminants per Btu (lb/MMBtu) basis, as the Agency 

said it would consider in the preamble discussion to the 2011 

NHSM Final Rule.63 

 

63 See 76 FR 15525. 
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Response: The EPA maintains its position that a direct 

comparison of contaminant levels, as opposed to the lb/MMBtu 

approach, is the most appropriate means of comparing contaminant 

levels. As was noted in the 2011 NHSM Final Rule, however, the 

Agency may still consider the lb/MMBtu approach as guidance is 

developed for implementation. 

3. Categorical Non-Waste Determinations for Specific NHSM Used 

as Fuels

The new provisions at 40 CFR 241.4 were proposed to allow 

the EPA to list categorically certain NHSMs as non wastes -- 

when used as a fuel in a combustion unit. Based on these 

categorical non-waste determinations, facilities burning NHSMs 

that qualify for the provision will not need to demonstrate that 

the NHSM meets the legitimacy criteria on a site-by-site basis. 

The EPA has determined that these NHSMs are categorical nonwastes as described and are not discarded when used as a fuel in 

a combustion unit. 

Categorical non-waste determinations only apply, however, 

to NHSMs that are burned as a fuel in combustion units for the 

purpose of recovery energy. Burning a NHSM fuel in a combustion 

unit for energy recovery assumes a set of basic design 

requirements that ensures excess air pollutants are not formed 

and emission requirements under the CAA are met. As discussed in 
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Section II.D.2.c of this preamble, such basic design 

requirements include abilities to load the material into the 

unit, ensure the material is well mixed, and maintain 

temperatures within unit specifications. For example, burning a 

whole tire in a boiler that is only designed to burn tires that 

are chipped and/or dewired would not be considered a fuel burned 

in a combustion unit for the purpose of recovering energy. The 

Agency is not including specific regulatory text regarding this 

point since we believe it is understood that to be burned for 

energy recovery, the combustion unit must be able to burn the 

NHSM as a fuel. 

a. Scrap Tires

In the December 23, 2011 NHSM proposed rule, the EPA 

proposed the following regulatory language under 40 CFR 241.4 

Non-Waste Determinations for Specific Non-Hazardous Secondary 

Materials When Used as a Fuel: “Scrap tires that are not 

discarded and are managed under the oversight of established 

tire collection programs, including tires removed from vehicles 

and off-specification tires.” Further, the addition of this 

provision (40 CFR 241.4(a)(1)) eliminated the need for the 

previous scrap tire provision at 40 CFR 241.3(b)(2)(i),64 which 

 

64 The scrap tire provision in the 2011 NHSM final rule is now 

removed and the section reserved in today’s final rule: “(b) The 
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has been removed and reserved in today’s final rule. Today’s 

rule finalizes the proposed provision without changes. 

Comment: One commenter stated, “In its latest proposal, EPA 

eliminates the need for scrap tires to meet its legitimacy 

criteria and simply declares that scrap tires collected under an 

established tire collection program are not waste regardless of 

whether they meet the Agency’s legitimacy criteria.” 

Response: The EPA disagrees with this comment. The EPA has not 

eliminated the legitimacy criteria for scrap tires. The 

categorical determination for scrap tires (as with all the 

categorical determinations in this rule) simply applies the 

Agency’s non-discard determination, made in the March 2011 rule 

and not reopened in this amendment, to the general category so 

that case-by-case determinations as to legitimacy would not need 

to be made by each facility. For the scrap tire category, scrap 

tires managed under established tire collection programs and 

used as a fuel need not make case-by-case legitimacy 

 

following non-hazardous secondary materials are not solid wastes 

when combusted: 

 (2) The following non-hazardous secondary materials that have 

not been discarded and meet the legitimacy criteria specified in 

paragraph (d)(1) of this section when used in a combustion unit 

(by the generator or outside the control of the generator): 

(i) Scrap tires used in a combustion unit that are removed from 

vehicles and managed under the oversight of established tire 

collection programs.” 
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determinations. Moreover, the commenter has given us no 

information that the criteria are not met. In fact, the 

commenter simply repeats the argument made in previous 

rulemakings that the material is always a waste regardless of 

legitimacy criteria. 

Comment: Several commenters suggested that scrap tires should 

not have more restrictions under 40 CFR 241.4(a) for the 

categorical non-waste status than does resinated wood. The nonwaste determination for scrap tires, as proposed in 40 CFR 

241.4(a)(1), read “Scrap tires that are not discarded and are 

managed under the oversight of established tire collection 

programs, including tires removed from vehicles and offspecification tires.” In comparison, the resinated wood 

description, as listed in 40 CFR 241.4(a)(2), is “Resinated 

wood.” The commenters reasoned that if all resinated wood can be 

non-waste, then all scrap tires should also qualify (regardless 

of the origin). 

Response: Please see the EPA’s response in the resinated wood 

section below (Section II.D.3.b of this preamble) relating to 

the 241.4(a) criteria for resinated wood and the comparison to 

scrap tires. That response goes into detail explaining why the 

extra criteria are not needed for resinated wood and related 

discard issues. In addition, as noted previously in the NHSM 
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rulemaking record (see docket EPA-HQ-RCRA-2008-0329), numerous 

tire piles have been created in the past whereas this is not the 

case for resinated wood used as fuel. The existence of these 

historic tire dumps, demonstrates that some tires have not been 

treated as a valuable commodity therefore necessitating the 

additional discard qualification in regulatory text. The 

specific tires described in the categorical determination are 

handled as a valuable commodity and do not include discarded 

tires. 

Comment: A commenter suggested that the EPA should add “offspecification tire components” to the regulatory language. This 

revision would be in addition to the proposed text at 40 CFR 

241.4(a)(1) that adds “off-specification tires.” 

Response: Off-specification tire components are covered in the 

40 CFR 241.4 categorical non-waste determinations for scrap 

tires. The term ‘scrap tire’ is a general term for tires and can 

include, for example, whole tires, chipped tires, offspecification tires, or off-specification tire components (i.e., 

tread, sidewall, or base) that are removed from vehicles or are 

generated by tire manufacturers, including retailers or other 

parties involved in the distribution and sale of new tires. This 
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formulation was also stated in the December 2011 NHSM proposal65

and is adopted for today’s final rule. The EPA sees no 

difference between tires and their various components. Thus, the 

EPA does not believe it necessary to modify the rule to include 

“off-specification tire components” in the codified definition. 

They are understood to be included in the categorical non-waste 

provision. 

Comment: Many commenters mentioned the difficulty in complying 

with the regulations, since it is very difficult to distinguish 

between tires removed from vehicles (and off-specification 

tires) versus tires from other origins. In regard to this issue, 

one commenter stated, “a combustor cannot know the origin of the 

tire-derived fuel it is buying. In its response to requests for 

reconsideration of the CIWSI rule, the EPA responded to this 

issue by recognizing that it is not possible for a combustor to 

know the source of all NHSM fuel and declined to impose this 

requirement stating: 

"Rather, it is sufficient that the ultimate user verify 

that it is obtaining tires from an established tire 

collection program, which program can provide the user with 

reasonable assurance that it manages tires carefully from 

point of collection to point of burning and which does not 

 

65 See 76 FR 80483. 
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receive tires which have been abandoned in landfills or 

otherwise. 76 Fed. Reg. 28318, 28322 (May 17, 2011)." 

Therefore, the commenter requests that the EPA codify this 

statement in the NHSM rule and expressly allow combustors to 

rely upon certifications of fuel suppliers that the fuel sold is 

not a solid waste. 

 Another commenter said that for the EPA to require a tire 

storage facility to maintain separate classifications of tires 

(i.e., separating discarded tires from tire dumps from other 

tires) is not reasonable, because inspectors and operators would 

not be able to tell the piles apart. The EPA’s current 

definition of scrap tires would place undue financial hardship 

on contractors and storage facilities. 

Response: The EPA has decided that a regulatory statement on 

this matter is not necessary, since the actual requirement for 

the combustor to determine where its tires come from when they 

are coming from an established tire collection program (or a 

contractual agreement) is provided for under the Clean Air Act 

and interpretations provided for that regulation. For example, 

major source boilers have a recordkeeping requirement for a nonwaste determination at 40 CFR 63.7555 “What records must I 

keep?” Within those regulations for major source boilers, it 

requires the combustor to demonstrate that NHSMs are a non-
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waste. To the extent that a combustor believes it appropriate, 

they may request haulers to verify that the tires would qualify 

as non-waste under 40 CFR 241.4 when combusted. 

 If there is question about the origin of the tires, the EPA 

inspectors will not assume that tires are from discarded 

sources. As we note in the Federal Register notice (76 FR 28318, 

28322), “It is EPA’s position that ultimate users are not 

responsible for knowing the source of all tires obtained from an 

established tire collection program... EPA does not interpret this 

language as requiring knowledge of each individual tire as this 

is a practical impossibility... users also should not assume that 

tires from established programs which participate in occasional 

cleanup days are discarded – both because there is no 

information that the tires from the cleanup efforts were 

discarded (and these programs are designed to prevent 

discarding) and whether the kiln received tires from the 

sporadic cleanup days in any case.” 

 The Federal Register notice that the commenter cited (76 FR 

28322) and a related letter to the docket (“Memorandum. 

Combustion in a Cement Kiln and Cement Kilns’ Use of Tires as 

Fuel.” April 25, 2011, Document ID: EPA-HQ-OAR-2002-0051-3582) 

provide sufficient guidance. The Agency believes this issue does 

not merit additional regulation for the hauler. 
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b. Resinated Wood 

In the December 23, 2011 proposed rule, the EPA proposed to 

designate in regulatory text that resinated wood is not a solid 

waste when used as a fuel. In making this determination, the 

Agency analyzed these materials using the legitimacy criteria, 

concluding that resinated wood clearly is managed as a valuable 

commodity and has meaningful heating value and is used as fuel.66

While stating that these materials may not always meet the 

regulatory contaminant legitimacy criterion in every situation, 

we proposed to list categorically resinated wood as a non-waste 

fuel because, after balancing the regulatory legitimacy criteria 

and other relevant factors, the EPA determined that resinated 

wood that is used as fuel represents an integral component of 

the wood manufacturing process and, as such, is not being 

discarded when burned as fuel. 

Specifically, we noted the extent to which resinated wood 

is used as fuels throughout the wood manufacturing industry and 

that the use of resinated wood as fuel is essential to the wood 

manufacturing process. We also noted the prevalence of wood 

product plants that have been designed specifically to utilize 

these residuals for their fuel value; in fact many (if not most) 

wood products plants would not be able to operate as designed 

 

66 See 76 FR 80483. 
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without the use of these materials. This determination was 

previously codified under 40 CFR 241.3 (b)(2)(ii) of the NHSM 

final rule, provided the resinated wood met the legitimacy 

criteria in 40 CFR 241.3(d)(1). However, based on the available 

information, as well as how this material is handled and used in 

the process, resinated wood is not being discarded when used as 

a fuel, and thus, should not be considered a solid waste when 

burned as a fuel. The EPA proposed to codify this determination 

by categorically listing resinated wood as a non-waste fuel in 

40 CFR 241.4(a)(2).67 By specifically listing it as a non-waste 

fuel, combustors of this material would not need to demonstrate 

that they meet the legitimacy criteria on a site-by-site basis. 

The EPA finds that this reasoning is supported by the 

entire rulemaking record, as explained in the December 2011 

proposal, which rationale is adopted for the final rule as 

further supported by responses to comments, below. Thus, the 

Agency has determined to list categorically resinated wood as a 

non-waste fuel. In addition, after considering comments received 

on the proposal, the Agency is revising the definition of 

“resinated wood,” as codified in 40 CFR 241.2. 

Comment: Most comments on this issue were supportive of a 

categorical determination that resinated wood is a non-waste 

 

67 See 76 FR 80483-80484. 
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fuel. One commenter maintained that the record for this 

rulemaking clearly establishes that resinated wood is highly 

valued within the wood products industry for its high fuel 

value, stating that “Many facilities rely on mixing of these low 

moisture content wood materials with higher moisture content 

wood materials to manage and optimize combustion.” This same 

commenter also stated that “there exists within the wood 

products industry a developed market for purchase and sale of 

resinated wood between independent companies.” In fact, many 

wood-fired boilers at wood products plants that do not generate 

sander dust have been retrofitted with sander dust injection 

burners so that sander dust can be properly combusted in those 

units, taking full advantage of the heat energy of sander dust. 

Another commenter stated that “resinated fuels have been an 

integral part of the composite wood product industry’s 

production process since the industry was established decades 

ago. As such, facilities’ combustion and energy systems were 

designed and constructed to utilize most if not all of their own 

wood and wood by-products, including resinated trim and sander 

dust. Excluding resinated wood fuels from our manufacturing 

processes would require significant re-engineering of our 

facilities and add insurmountable operating costs in order to 

substitute fossil fuels, as well as to transport and dispose of 
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resinated wood fuels. Any other result would effectively make it 

nearly impossible for these manufacturing facilities to continue 

operations.” This same commenter also noted that “many of our 

facilities rely exclusively on resinated wood for its fuel and 

have limited access to substitutes.” 

 Another commenter provided two examples of mills that 

utilize nearly 100 percent of sander dust, either to create new 

product as part of the manufacturing process or as fuel. In 

addition, two state commenters supported the proposed 

categorical non-waste determination for resinated wood. 

Response: Nearly all of the comments received regarding the 

proposed categorical non-waste determination were supportive of 

categorically listing resinated wood as a non-waste fuel when 

burned in combustion units for energy recovery. As noted above, 

the Agency did receive a few additional examples of how the use 

of resinated wood as a fuel is an integral part of the wood 

manufacturing industry’s production process (e.g., the 

facilities that would have to be significantly re-engineered if 

they could not use resinated wood for its fuel value and the 

mills that use 100 percent of the sander dust it generates, 

either by recycling it back into the process or burning it for 

fuel). 
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Although we received one comment critical of the EPA’s 

proposed listing of resinated wood as a non-waste fuel 

(addressed below), we did not receive any comments that argued 

or suggested that the use of resinated wood as a fuel is not an 

integral component of the wood manufacturing process. Thus, we 

agree with commenters who encouraged the EPA to finalize 

resinated wood as a categorical non-waste fuel and will finalize 

this determination in today’s rulemaking. 

 Information in the record for this rulemaking clearly 

establishes that resinated wood is managed as a valuable 

commodity (40 CFR 241.3(d)(1)(i)) and has meaningful heating 

value and is used as a fuel in combustion units that recover 

energy (40 CFR 241.3(d)(1)(ii)).68 In addition, we generally have 

determined that most resinated wood meets the contaminant 

legitimacy criterion as well ((40 CFR 241.3(d)(1)(iii)), 

although we acknowledge that in some instances these materials 

may have levels of formaldehyde that are not comparable to 

traditional fuels.69 

 The EPA confirms the position discussed in the proposal, 

and adopts it as its final rationale that there are instances 

 

68 See, e.g., 76 FR 80483. See also background document developed 

in support of the December 23, 2011 proposed rulemaking 

entitled, “Resinated Wood, Scrap Tire, and Pulp/Paper Sludge 

Support Document” (EPA-HQ-RCRA-2008-0329-1880). 

69 Id.
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where it is appropriate for the EPA to balance the regulatory 

legitimacy criteria with other relevant factors in order to 

determine whether a material is a legitimate fuel or is merely 

being discarded by being combusted. We have determined that 

resinated wood is one such example. Although resinated wood may 

not meet the regulatory contaminant legitimacy criteria in every 

situation, it is clear that resinated wood is still a 

“legitimate” product fuel after one considers how integrally 

tied the use of resinated wood as a fuel is within the wood 

manufacturing process and industry. Nearly all comments received 

on this point concurred with this assessment. Thus, in today’s 

final rule, we are codifying the determination that resinated 

wood, based on all information and the totality of the 

circumstances, is a non-waste when used as a fuel. 

Comment: One commenter, however, stated that the EPA’s proposed 

categorical determination that resinated wood is a non-waste 

fuel is unlawful and arbitrary. The commenter stated that the 

EPA is now proposing to simply “exempt” resinated wood 

altogether, regardless of who burns it and whether it meets the 

legitimacy criteria. According to the comment, the EPA 

acknowledges that the formaldehyde levels in resinated wood 

would not always meet its contaminant legitimacy criterion – 

i.e., would not be comparable to the levels in any fuel that 
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companies would otherwise burn. The commenter states that the 

EPA also acknowledges that burning resinated wood increases the 

emissions of formaldehyde, but nonetheless finds that, “In 

general the motivation to use resinated wood as a fuel, even 

with the slightly higher formaldehyde levels, predominates over 

the motivation to dispose of the formaldehyde.” The EPA’s 

decision to remove the limits on the exemption for resinated 

wood and to “categorically” declare resinated wood to be a nonwaste – regardless of who burns it, regardless of how 

contaminated it is, and regardless of the reality that some 

companies may be burning resinated wood as a cheap means of 

disposing of their toxic formaldehyde wastes – underscores this 

point. 

 The comment continues that the EPA nowhere claims that 

companies burning resinated wood that they have not generated 

pay for these materials. Indeed, the EPA does not deny that 

these companies are paid to take the resinated wood they burn. 

Thus, the EPA provides no reason to believe that the resinated 

wood that is burned by a company other than the one that 

generated it has not been discarded by the company that 

generated it. Even under the EPA’s own view of the meaning of 

discard, resinated wood burned by companies other than the 
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generator of the resinated wood would be waste, but for the 

Agency’s declaration that it is not waste. 

 The commenter also states that the EPA admits that some 

companies may burn resinated wood because they want to dispose 

of the formaldehyde it contains (i.e., to dispose of the 

contaminated wood rather than to recover energy). Moreover, the 

levels of formaldehyde contamination in some resinated wood 

would exceed the EPA’s legitimacy criteria, but for the EPA’s 

declaration that these criteria do not apply. For these reasons 

as well, resinated wood is discarded even under the EPA’s own 

view of what that term means. 

Further, the comment states that sources’ alleged 

“motivation” for burning a material is to recover energy rather 

than to destroy the wood and the contaminants it contains – 

assuming arguendo that a source’s motivation can even be 

determined – does not show that material is not a waste. Rather, 

resinated wood is a waste because it is discarded within the 

meaning of RCRA. Notably, the EPA does not suggest that there is 

any use for resinated wood that has been discarded other than – 

assuming it’s a “use” at all – burning it. Moreover, 

establishing a “motivation”-based test for whether resinated 

wood is or is not a waste conflicts with and defeats the Clean 
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Air Act. Thus, the agency’s categorical declaration that 

resinated wood is not a waste is unlawful. 

Response: The EPA strongly disagrees with the commenter’s 

characterization of its categorical determinations. In making 

categorical determinations, the Agency is not “exempting” these 

materials from regulation as a solid waste (i.e., if not for 

this “exemption,” these materials would otherwise be regulated 

as solid waste). Rather, the EPA has determined that the 

specified NHSMs are not solid waste when used as fuels. Further, 

in making categorical determinations, the EPA is not saying that 

the legitimacy criteria are not relevant. In proposing the 

categorical non-waste determination for resinated wood, the 

Agency stated we were “balancing the legitimacy criteria and 

other relevant factors based on the fact that resinated wood 

residuals that are used as fuels represents an integral 

component to the wood manufacturing process and, as such, 

resinated wood residuals are not being discarded when burned as 

fuels.”70 This remains the Agency’s final finding in this rule. 

Regarding the level of contaminants in resinated wood, the 

Agency is not saying that resinated wood is a non-waste fuel 

“regardless of how contaminated it is,” as the commenter 

suggests. Based on all available information, the Agency has 

 

70 See 76 FR 80483. 
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concluded that resinated wood meets the legitimacy criteria for 

all contaminants with the possible exception in some situations 

of formaldehyde. In focusing specifically on formaldehyde, we 

also have stated that we have limited information regarding 

formaldehyde levels—that is, resins and adhesives containing 

formaldehyde react within the resin curing process leaving “free 

formaldehyde at levels less than 0.02 percent (or 200 ppm), but 

noted that levels will be reduced further due to new national 

rules being developed by the CARB Composite Wood ATCM, per new 

Public Law 111-199. Thus, we have not said that contaminants do 

not matter. Rather, we have carefully analyzed contaminant 

levels in resinated wood and have determined, based both on 

contaminant levels, as well as how the use of these materials 

represents an integral part of the wood product manufacturing 

process, that resinated wood materials are a legitimate nonwaste fuel. 

Further, we do not concede, as the commenter contends, that 

some companies burn resinated wood to destroy contaminants—in 

fact we have determined just the opposite. We have determined 

that companies burning resinated wood do so because such an 

activity is integrally tied to their production process, not to 

dispose of the formaldehyde. This determination is based on that 

extent to which resinated wood is used as fuels throughout the 
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wood manufacturing industry, as well as the fact that the use of 

resinated wood as fuel is essential to that industry (i.e., 

plants have been designed to use these materials as fuels and 

would be unable to operate if resinated wood was not available 

as a fuel source). 

Regarding the comments that the EPA acknowledges that 

burning resinated wood increases emissions of formaldehyde, the 

Agency needs to correct this characterization. First, in the 

2011 NHSM final rule, we stated that the criterion or test in 

determining the contaminant legitimacy criterion is based on the 

level of contaminants in the secondary material itself, and not 

by comparing the differences in emissions.71 However, responding 

to comments we received regarding emission levels associated 

with burning resinated wood as a fuel, the Agency determined 

that the amount of formaldehyde that is emitted from burning 

resinated wood residuals is in fact likely to decrease, given 

that Public Law 111-199 will reduce formaldehyde levels in these 

materials.72

Regarding the commenter’s statement that companies that 

burn resinated wood that they have received from off-site do not 

pay for it, the EPA both disagrees with the statement and also 

 

71 See, e.g., 76 FR 15502. 

72 Id.
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finds it to be not directly relevant for determining whether a 

material is not a solid waste. 

As noted in the March 2011 final rule, inter-company 

transfers of resinated wood residuals are typically managed 

through buy-sell contracts, and 6 percent of resinated wood 

residuals are sold into the fuel market and are used as either 

“furnish” (i.e., raw materials) or fuel at the receiving 

facilities.73 In addition, the EPA received additional comments 

on the proposed rule stating, “...there exists within the wood 

products industry a developed market for purchase and sale of 

resinated wood between independent companies.” 

Moreover, while contractual arrangements can be used as 

evidence that the material is managed as a valuable commodity 

and that discard is not occurring when a material is transferred 

beyond the control of the generator, the price of an NHSM is 

not, by itself, dispositive of whether the material is or is not 

a waste. The main indication that resinated wood residuals are 

not solid waste is the fact that they are used as fuels in a way 

that represents an integral component to the wood products 

industry. As the EPA noted in the March 2011 final rule, 

“resinated wood residuals transferred off-site are utilized in 

the same manner as self-generated resinated wood residuals 

 

73 See 76 FR 15500 
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(i.e., contained in the same bins as furnish materials used in 

the product, transferred via conveyors or ducts), which the 

plants are specifically designed to burn as a fuel, [and 

therefore] we agree that this does not constitute discard.”74

The comment that the Agency has simply declared that 

resinated wood is a non-waste “regardless of who burns it” is a 

mischaracterization of this categorical non-waste determination. 

Based on all information provided to the Agency, we have 

determined the use of resinated wood as a fuel is an integral 

part of the industry’s production processes, and that these 

materials are managed as valuable commodities (i.e., fuels), 

have meaningful heating value and are used in combustion units 

that recover energy regardless of whether these materials remain 

within the control of the generator or are transferred off-site 

to another facility. On the other hand, we have no information 

that facilities are burning these materials merely to get rid of 

them (i.e., discard). 

The EPA finds irrelevant the commenter’s statement that the 

EPA is looking to a sources’ motivation for using a material as 

a fuel conflicts with and defeats the Clean Air Act. The issue, 

rather, is whether motivation is relevant to a waste 

determination under RCRA. The D.C. Circuit confirmed the 

 

74 Id. 
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relevance of motivation in determining whether a recycled 

material is a waste. See, API v. EPA, 216 F.3d at 58 (court 

criticizes the EPA for not saying why it has concluded whether 

recycling motivation predominates over a disposal motivation). 

In this case, it is clear that the motivation for burning the 

resinated wood is to utilize its inherent value as a fuel and 

not for disposal. Commenters have provided the Agency with 

information that facilities generating and managing resinated 

wood residuals consider these materials to be an integral part 

of their production process—both in the value these materials 

provide as being a critical source of energy as well as being 

recycled back into the manufacturing process to create more wood 

products. Thus, we are not convinced that a facility that 

considers the use of resinated wood as a fuel to be an integral 

part of its production processes, as has been established in the 

record, is motivated to discard these materials by burning to 

get rid of them. 

Comment: A few commenters stated that the EPA is not consistent 

in how discarded materials are designated as solid waste. In 

particular, the commenter stated that the EPA was proposing to 

list as a categorical non-waste fuel in 40 CFR part 241.4 

resinated wood regardless of whether it is previously discarded, 
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while the Agency would require processing for scrap tires that 

have been discarded in landfills. 

Response: The Agency disagrees that its treatment of resinated 

wood is inconsistent with its treatment of scrap tires. Nowhere 

does the Agency state that resinated wood would be considered a 

non-waste fuel “regardless of whether it is previously 

discarded.” The EPA, based on all information available, has 

determined that resinated wood is not being discarded when used 

as fuel, given the fact that resinated wood residuals that are 

used as fuels represent an integral component of the wood 

manufacturing process. If a shipment of resinated wood residuals 

was disposed of in a landfill, it would be a waste. In addition, 

if a shipment of resinated wood residuals were disposed of and 

later recovered to be used as a fuel, as is the case with scrap 

tires that are extracted from landfills, this would be a 

different scenario, and would not be included within the 

categorical listing in 241.4(a)(2). 

 As the record clearly shows, resinated wood is routinely 

handled and managed as a valuable fuel product within the wood 

products manufacturing industry. As noted in the rulemaking 

record (see docket EPA-HQ-RCRA-2008-0329), numerous scrap tire 

piles have been created in the past and it is a common practice 
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to recover abandoned tires from tire piles and use them for 

fuel. This is not the case for resinated wood. 

Comment: While supportive of the Agency’s proposed listing of 

resinated wood as a non-waste fuel in 40 CFR part 241.4, two 

commenters suggested that the Agency revise the definition of 

“resinated wood” as codified in 241.2. Currently, “resinated 

wood” is defined as, “wood products (containing resin adhesives) 

derived from primary and secondary wood products manufacturing 

and comprised of such items as board trim, sander dust, and 

panel trim.” However, these commenters request the EPA to revise 

this definition in order to clarify that the “spectrum of 

resinated materials currently used as fuels throughout the wood 

product manufacturing process are included in the definition.” 

Thus, commenters urge the EPA to revise the definition of 

resinated wood as follows: “Resinated wood means wood products 

(containing binders and adhesives) produced by primary and 

secondary wood products manufacturing. Resinated wood includes 

residues from the manufacture and use of resinated wood, 

including materials such as board trim, sander dust, panel trim, 

and off-specification resinated wood products.” 

 The suggested revised definition proposes two changes. 

First, the suggested definition replaces the phrase “containing 

resin adhesives” with the phrase, “containing binders and 
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adhesives.” The second suggested revision to the definition is 

the specific inclusion of “off-specification resinated wood 

products.” Commenters have indicated that these materials 

include materials that do not meet manufacturing specifications 

or are otherwise physically marred or damaged and thus, are not 

sold in the marketplace. This class of materials would not be 

expected to be chemically different than the resinated wood 

products that meet the manufacturing “on-spec” requirements. For 

example, off-specification resinated wood products would not be 

expected to have higher amount of resins (and therefore 

contaminants) than their on-specification counterparts. 

Commenters have indicated that off-specification resinated wood 

products are identical to their on-specification counterparts 

chemically and only differ in that they are do not meet a 

manufacturing quality or standard. 

Response: The Agency recognizes that in order for a categorical 

non-waste determination to be meaningful and effective, it must 

be clear about the universe of materials that such a categorical 

non-waste determination encompasses. Thus, we agree with 

commenters who suggested specific revisions to the definition of 

“resinated wood” contained in part 241.2. Specifically, the EPA 

agrees that these revisions create a definition that more 

accurately captures the scope of resinated wood and is more 
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representative of the resinated materials currently used as 

fuels throughout the wood product manufacturing process. First, 

by including the terms “binders” and “adhesives,” the universe 

of materials that we consider to be within this definition 

should be more clear, as these terms are widely used and 

accepted within the wood products manufacturing industry. 

 With respect to the inclusion of off-specification 

resinated wood products, the EPA finds it appropriate to include 

this class within the definition of resinated wood. We note, 

however, that to the extent that a facility has reason to expect 

that the off-specification wood products are off-spec for 

chemical reasons, such that the levels of contaminants are 

expected to be greater than their on-spec counterparts, the EPA 

would not consider such materials to be within the scope of this 

definition. The Agency will make this point more clear by 

specifying in the definition that the term “off-specification 

resinated wood products” are off-spec due to the fact that they 

do not meet a manufacturing quality or standard. Thus, in 

today’s final rule, we are codifying the definition of resinated 

wood as follows: “Resinated wood means wood products (containing 

binders and adhesives) produced by primary and secondary wood 

products manufacturing. Resinated wood includes residues from 

the manufacture and use of resinated wood, including materials 
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such as board trim, sander dust, panel trim, and offspecification resinated wood products that do not meet a 

manufacturing quality or standard” (emphasis added). 

Comment: One commenter noted that there are additional secondary 

materials produced by the wood manufacturing industry that are 

similar to resinated wood and, thus, should also be considered a 

non-waste fuel. The production of flooring and furniture creates 

final finishing trim, sander dust, and process breakage that are 

both solid and resinated wood materials. In some cases, these 

materials are coated with finish materials used to color and 

protect the finished product. The commenter (a utility) 

indicated that their facilities receive these materials from 

furniture and flooring manufacturers and utilize them to offset 

the fuel load from fossil fuels due to their high heat capacity. 

Thus, the commenter requests that the EPA expand its definition 

of resinated wood materials to include these additional wood 

manufacturing secondary materials as non-waste fuels or 

otherwise describe the circumstances under which these 

additional materials would be considered a non-waste fuel. 

Response: It is possible that these materials (or some of these 

materials) could be within the definition of “resinated wood,” 

as codified in 40 CFR part 241.2; however, commenters have not 

provided the Agency with information regarding the factors 
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involved in determining whether these additional types of coated 

materials are legitimately used as product fuels. That is, 

commenters have not provided information regarding whether these 

“finishing materials” could have contaminant concerns, and 

whether they are routinely used as fuels. Subsequent to this 

rulemaking, the Agency would welcome information regarding these 

materials in order to make an informed decision regarding 

whether these materials fit within the definition of “resinated 

wood.” Alternatively, the commenter may petition the Agency to 

receive a non-waste determination per the petition process 

established in 40 CFR 241.3(c) if the commenter believes that 

this material may not be within the definition of “resinated 

wood.” 

4. Rulemaking Petition Process for Other Categorical Non-Waste 

Determinations (40 CFR 241.4(b))

The EPA recognizes that there may be other NHSMs that can 

also be considered non-wastes when used as fuels in combustion 

units when balancing the legitimacy criteria and other relevant 

factors. Thus, under today’s rule, we are finalizing the process 

outlined in the proposed rule whereby persons can submit a 

rulemaking petition to the Administrator where they can identify 

and request that additional NHSMs be listed in section 241.4. 

The petition process is similar to 40 CFR 260.20, where any 
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person may petition the Administrator to modify or revoke any 

provisions of the hazardous waste rules, and where procedures 

governing the EPA’s action on those petitions are established. 

The 40 CFR 260.20 standards reflect normal, informal rulemaking 

procedures under the APA and thus, serve as an appropriate model 

for the NHSM rulemaking petitions under this section. 

In the context of a rulemaking petition under section 

241.4(b), any person can petition the Administrator for a 

regulatory amendment to identify and request that additional 

NHSMs be included on the list of materials in section 241.4(a) 

that are not solid wastes when used as a fuel in a combustion 

unit. To be successful, the petitioner needs to demonstrate to 

the satisfaction of the Administrator that the proposed 

regulatory amendment involves a NHSM that has not been 

previously discarded (i.e., was not initially abandoned or 

thrown away), or if discarded, has been sufficiently processed 

into a legitimate fuel. The petitioner must also demonstrate 

that the material is used as a non-waste fuel in a combustion 

unit because it either meets the legitimacy criteria, or, after 

balancing the legitimacy criteria with other relevant factors, 

such NHSM(s) is not a solid waste when used as a fuel in a 

combustion unit. 
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If the applicant believes that the NHSM is a legitimate 

product and not discarded despite not meeting the legitimacy 

criteria, additional information must be submitted to explain or 

describe why such NHSM should be considered a non-waste fuel. 

Possible factors to address include, but are not limited to: 

 The extent that use of the NHSM has been integrally tied to 

the industrial production process. Information can include 

combustor design specifications, the extent that use of the 

material is integrated across the industry, and the extent 

that use of the NHSM is essential to the industrial 

process, 

 The extent that the NHSM is functionally the same as the 

comparable traditional fuel, and 

 Other relevant factors. 

The application is required to include (1) the petitioner’s 

name and address; (2) a statement of the petitioner’s interest 

in the proposed action; (3) a description of the proposed 

action, including the specific NHSM, the industry (i.e., NAICS 

code) and functional use (i.e., industrial functional code 

listed in 40 CFR 710.52(c)(4)(i)(C)); and (4) a statement of the 

need and justification for the proposed action, including any 

supporting tests, studies, or other information. Where such 

NHSM(s) do not meet the legitimacy criteria, the applicant must 

explain why such NHSM(s) should be considered a non-waste fuel, 

balancing the legitimacy criteria with other relevant factors. 
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Under this petition process, the Administrator makes a 

tentative decision to grant or deny a petition and then publish 

notice of such tentative decision, either in the form of an 

ANPRM, a proposed rule, or a tentative determination to deny the 

petition, in the Federal Register for written public comment. 

The Administrator could, at its discretion, hold an informal 

public hearing to consider oral comments on the tentative 

decision. After evaluating all public comments, the 

Administrator makes a final decision by publishing in the 

Federal Register a regulatory amendment or a denial of the 

petition. 

Comment: One commenter does not support use of the legitimacy 

criteria, as provided in the proposed section 241.4(b)(3) to 

make a determination. A material which has not been discarded 

is, by definition, not a solid waste. However, if the EPA 

believes that other factors still should be considered, then the 

only other factor which should be considered is whether the 

material is being used legitimately as a fuel. The remaining 

legitimacy criteria are (and should be) irrelevant. 

EPA’s Response: As discussed in the 2011 NHSM final rule, 

“legitimacy” is shorthand for referring to non-hazardous 

secondary materials that are not abandoned or thrown away, are 
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saved and are reused by being burned for their value as a fuel.75 

The legitimacy criteria are the factors needed to be examined to 

make this determination. For example, it is relevant how the 

NHSM is managed and its heating value since burning materials 

that have minimal or limited heating value shows the material is 

being burned for discard and not energy recovery. In addition, 

the extent to which contaminants are present in NHSMs may also 

indicate that the real reason for burning the secondary material 

is simply to destroy or discard them—referred to as ‘‘sham’’ 

recycling. Thus, the Agency is not simply ‘‘punting’’ to its 

legitimacy criteria, but believes they provide a valid basis for 

showing that a NHSM is more commodity -- like than waste-like. 

Comment: The current petition process is limited to NHSMs when 

used as fuels. Absent from this petition process are NHSMs used 

as ingredients and previously discarded materials that meet the 

fuel legitimacy criteria. We do not understand this distinction 

and urge the EPA to expand both the current and proposed 

petition processes to allow for non-waste determinations for a 

wider range of NHSMs. 

EPA’s Response: In general, the 40 CFR part 241 regulations 

establishes a self-implementing approach for non-hazardous 

secondary materials that can consider site-specific information, 

 

75 See 76 FR 15471. 
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if necessary (i.e., facilities will make a self-determination of 

whether the non-hazardous secondary fuel or ingredient in 

question meets the regulatory criteria). We note it is the EPA’s 

intention to indicate in the these rules, as clearly as 

possible, which non-hazardous materials used as fuels or 

ingredients in combustion units are or are not considered solid 

waste based on the criteria laid out in regulatory text. The 

Agency expects this self-implementing approach will govern the 

majority of situations, including NHSMs used as ingredients and 

NHSMs processed from previously discarded materials. 

We would also note that the regulated community prior to 

proposing the December 2011 proposed rule and commenters to that 

proposed rule did not provide any instances where ingredients 

are combusted or are processed from previously discarded 

material that would be a candidate for listing categorically. 

Therefore, we do not believe it necessary to modify the proposed 

rule to address this situation. However, to the extent that 

there are instances where such materials do exist, persons can 

always petition the EPA to modify the rules, including allowing 

ingredients that are combusted to be categorically listed to 

account for such materials. 

Comment: One commenter requested that the EPA should 

specifically recognize in the categorical petition that the 
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existence of a supply contract between a generator of NSHMs and 

a combustor, with specifications that the NHSM must meet, should 

be considered dispositive evidence that the NHSM is not a waste 

and is combusted for energy recovery, not disposal. 

Response: We disagree with the commenter that the mere existence 

of a contract between the generator and combustor is dispositive 

evidence of the material being a non-waste. However, existence 

of a contract is a factor to be considered in a categorical nonwaste determination. For example, under 40 CFR 241.4(a)(1), 

scrap tires managed under established tire collection programs 

are a categorical non-waste and the definition of “established 

tire collection program” (40 CFR 241.2) explicitly recognizes 

contracts as evidence that the material has not been discarded. 

Specifically, “Established tire collection program” means “a 

comprehensive collection system or contractual arrangement

[emphasis added] that ensures scrap tires are not discarded and 

are handled as a valuable commodity through arrival at the 

combustion facility...” 

Comment: The timeframe for which the EPA must grant or deny the 

request should be included, as well as defining the length of 

time of 30 days that these notices will be open to public 

comment. What is the legal implication of an “informal public 

hearing?” How does this differ from a public information 
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meeting? If it is “informal,” what is the purpose? What 

administrative procedures apply to comments made during the 

“informal public hearing?” 

Response: The Agency is not imposing a deadline on its decision 

to grant or deny a petition, or a specific time period for 

public comment, due to the potentially wide range of issues 

involved in considering a categorical non-waste petition and 

because of the many factors beyond its control. Informal public 

hearings, similar to formal public hearings, provide an 

opportunity for the public to provide comments and oral 

testimony on proposed Agency actions . All testimony received 

becomes part of the public record. Public meetings, on the other 

hand, are less formal; anyone can attend, there are no formal 

time limits on statements, and the Agency and/or the facility 

usually answer questions. The purpose of the meeting is to share 

information and discuss issues, not to make decisions. 

Comment: The final rule should make clear that the denial of a 

petition would not bar the filer of the denied petition from 

filing a subsequent petition for the same location and same 

materials. 

Response: Where the information submitted to make a categorical 

non-waste determination has fundamentally changed, the EPA 
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agrees that a petition to categorically list a NHSM can be 

resubmitted for review. 

5. Materials for Which Additional Information was Requested 

a. Pulp and Paper Sludge

In the March 2011 NHSM final rule, the EPA concluded that 

pulp and paper sludges meet the legitimacy criteria and, thus, 

can be burned as a non-waste fuel provided such combustion units 

are within the control of the generator in accordance with 

section 241.3(b)(1).76 The December 2011 proposed rule discussed 

the information we currently have on pulp and paper sludges, and 

the additional information that the Agency would need in order 

to categorically list these materials in 40 CFR 241.4(a) as a 

non-waste fuel.77 If such information were provided to the EPA, 

the Agency would then consider the legitimacy criteria and other 

factors relevant to a determination that these sludges are not 

solid wastes when combusted. 

This categorical listing would put pulp and paper sludges 

in the same general grouping as resinated wood residuals. For 

 

76 Pulp and paper sludges almost entirely remain on-site and 

within the control of the generator when burned as fuels. To the 

extent that pulp and paper sludges do not remain within the 

control of the generator and are used as fuels, the petition 

process established in 40 CFR 241.3(c) could apply to these 

materials, as appropriate. 

77 Additional information needed to categorically list pulp and 

paper sludges is discussed at 76 FR 80485. 
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resinated wood residuals, the EPA considered that use of that 

material as a fuel has been integrally tied to the industrial 

production process and is consistent with that of a fuel 

product. The proposal discussed similar information that was 

needed by the Agency to support adding pulp and paper sludges to 

40 CFR 241.4(a) as a categorical non-waste. 

Based on the comments received and information submitted, 

the EPA is listing as a categorical non-waste fuel under section 

241.4 those dewatered pulp and paper sludges that are not 

discarded and are generated and burned on-site by pulp and paper 

mills that burn a significant portion of those residuals. Such 

residual must be dewatered, and managed in a manner to preserve 

the meaningful heating value of those materials. 

This determination for pulp and paper sludge as a 

categorical non-waste represents the Agency’s finding that, 

after balancing the regulatory78 legitimacy criteria with other 

relevant factors, the burning of this material as described in 

 

78 As the EPA has previously stated (76 FR 15460), the Agency has 

established regulatory legitimacy criteria which may be used by 

companies on a case-by-case basis to show that they are not 

discarding material when used in a combustor. However, for the 

categorical determination, the Agency has determined that it is 

appropriate for the Agency, itself, to make the discard 

determination for material that does not meet the more strict 

regulatory criteria. Thus, the EPA has developed the categorical 

determination. 
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the categorical listing is a commodity fuel for legitimate 

energy recovery and not discard. That is, the Agency has 

concluded that pulp and paper mills that burn a significant 

portion are not burning these dewatered pulp and paper sludges 

to discard them, but are burning them as a legitimate commodity 

fuel. The Agency finds that these facilities take the steps 

necessary to dewater the pulp and paper sludges and to manage 

such dewatered sludge to maintain its meaningful heating value 

and not to dispose of the sludge. In addition, the Agency finds 

for facilities burning a significant portion of the dewatered 

sludge that: 

(1)The sludges are managed in a manner that preserves 

meaningful heating value and, therefore, meets the managed as a 

valuable commodity (241.3(d)(1)(i)). 

(2)Dewatered sludge (i.e., dewatered through appropriate 

water removal practices, including dewatering presses, rotary 

driers, etc.) meets the meaningful heating value and used in 

combustion units that recovery energy criterion 

(241.3(d)(1)(ii)). 

(3)The sludge meets the comparable contaminant criterion 

(241.3(d)(1)(iii)). 

As discussed in the response to comments below, the Agency 

finds that, for those pulp and paper mills that burn a 
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significant portion of dewatered pulp and paper sludge, their 

use as a fuel is integral to the operation of the pulp and paper 

mill. The fact that these sludges meet the contaminant 

legitimacy criterion also, in EPA’s view, show that these 

sludges when burned on-site are not being discarded. While the 

Agency is not defining a specific percentage of dewatered pulp 

and paper sludges that would need to be burned to qualify for 

the categorical listing in section 241.4, the Agency would 

consider that the 42 mills that responded to an American Forest 

& Paper Association survey79 and that use dewatered pulp and 

paper sludge as fuels at a significant rate (between 70-100 

percent of these materials that are generated and burned) meet 

the listing description. We also find that other mills that burn 

a significant portion of their dewatered pulp and paper sludges 

on-site as fuel would qualify for the listing description.80 For 

the pulp and paper mills that burn a relatively small percentage 

of their dewatered pulp and paper sludges on-site as a fuel 

 

79 See April 2, 2012 letter from Timothy G. Hunt to James Berlow. 

A copy of this letter has been placed in the docket for today’s 

rulemaking. 

80 While the Agency is not including a specific requirement for 

pulp and paper mills to document the amount of dewatered 

wastewater treatment residuals they burn on-site as a fuel, we 

would recommend that such pulp and paper mills include such 

documentation in case there are any questions as to whether the 

pulp and paper mills dewatered wastewater treatment residuals 

qualifies for the categorical listing in 241.4. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 224 of 526 

(e.g., the five mills that responded to the American Forest & 

Paper Association survey that burn less than 20 percent), the 

Agency has determined that those sludges are not viewed the same 

by the mill operator in that they do not need to rely on them 

for their energy value and are not included in the non-waste 

categorical listing in section 241.4. 

However, there is likely little difference as to how pulp 

and paper sludge may be defined under NHSM rules, whether a 

categorical or a facility-specific non-waste determination. That 

is, such dewatered pulp and paper sludges may still be 

considered non-waste fuels when burned as a fuel for energy 

recovery at mills that burn a relatively small percentage of 

these materials, although the rules require those facilities to 

document on a facility-specific basis, that such sludges are 

non-waste fuels. As discussed in the final NHSM rule (76 FR 

15488), dewatered pulp and paper sludges that are burned within 

the control of the generator and meet the legitimacy criteria, 

likely are non-waste fuels, and thus can be burned in units 

subject to CAA section 112 requirements. 

The Agency has restricted the categorical listing to those 

dewatered pulp and paper sludges that are burned on-site because 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 225 of 526 

the Agency has minimal information on how these NHSMs are 

managed when shipped off-site.81 

Outlined below are commenters’ responses to the Agency 

information requests regarding pulp and paper sludges and a 

categorical non-waste determination. 

Comment: The EPA requested information on how pulp and paper 

mill sludge is used as a legitimate fuel and not discarded at 

pulp and paper mills, and how the material is integrated into 

the industrial production process. 

In responding to the Agency’s request, commenters first 

provided a summary of energy needs by the pulp and paper 

industry. The commenters indicated that the industry is somewhat 

unique in its energy profile and in how individual mills select 

appropriate fuels to support their energy needs. Most pulp and 

paper mill boilers are specifically designed to handle a variety 

of fuels; few boilers are designed to burn just 

traditional fuel. Even mills with boilers specifically permitted 

as pulp and paper sludge boilers also burn other fuels. Over the 

years, the industry has recognized the benefits of burning 

secondary materials, particularly those generated on-site. These 

 

81 We note that in the situation where pulp and paper sludges are 

transferred beyond the control of the generator, a facility can 

petition the Agency to receive a non-waste determination, as 

appropriate. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 226 of 526 

secondary materials are derived from and have characteristics 

similar to traditional fuel, particularly the biomass used to 

produce pulp and paper products. 

Mills do not usually burn just one type of fuel at any one 

time. Some mills rely heavily on coal, others on natural gas or 

biomass. According to the commenter, the choice of fuel depends 

on availability, cost, and need. Hogged fuel or coal may be the 

underlying fuel, but it is supplemented by other traditional and 

non-traditional fuels. This is done in order to meet the energy 

needs of the mill, but also to address best management practices 

for the boiler and meet air quality requirements. If the hogged 

fuel is wet, coal or resinated wood may be added to boost heat 

value. If the boiler is burning too hot, the addition of pulp 

and paper sludge enables the mill to regulate temperature. Pulp 

and paper sludge also may be burned because it has the best fuel 

value for the price. All of these decisions are based on the 

boiler conditions, fuel availability, energy needs, air quality 

requirements, as well as costs, and all are considered when the 

energy manager determines the right mix of fuel in any given 

day. 

As a result, the quantities of different types of fuels 

burned over the course of a year differ and the mill may not 

burn 100 percent of the available fuel generated during that 
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Page 227 of 526 

year. Not all pulp and paper sludges are burned at a given mill 

over the course of a year, nor are all recycled process 

residuals (old corrugated cardboard rejects) or all hogged fuel. 

The commenter emphasized that if only a percentage of a 

secondary material generated by the industry is used as a fuel, 

that it does not negate its value as a fuel. Rather, it reflects 

the realities of running a boiler for which the economic and 

operating conditions are interconnected and dynamic. 

For example in one mill, the commenter indicated that 

combination boilers are designed to burn a wide variety of fuels 

efficiently and cleanly. Two mills’ boilers currently burn tirederived fuel,82 while one burns waste paper generated at the 

mill. They all are capable of burning one or more fossil fuels: 

oil (including used oil), coal, and gas. The four combination 

boilers burn large amounts of biomass, either generated on-site 

or purchased commercially. A portion of three of the mills’ 

biomass consists of sludge generated on-site from their 

wastewater treatment processes. 

One state commenter also indicated that most mills operate 

boilers that are specifically designed to handle a variety of 

fuels - - few boilers are designed to burn just traditional fuel 

 

82Tire-derived fuel used in the paper industry must be de-wired 

since the wires often clog the feed system. Thus, the industry 

does not utilize whole tires. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 228 of 526 

and mills do not usually burn just one type of fuel at any one 

time. Bark and biomass fuel may be the primary fuel, but it is 

supplemented by other traditional or alternative fuels. 

Secondary materials have been an important alternative fuel 

used safely by the mills in the commenter’s state for many 

years. Most of that state’s mills' have multi-fuel boilers. 

Their fuel handling equipment, mill wastewater treatment systems 

and other ancillary equipment were designed to combust 

alternative fuels, including pulp and paper sludge. Use of these 

fuels reduces reliance on purchased biomass and/or fossil fuels 

and provides a vehicle for beneficial reuse of the materials. In 

light of the greater stringency of the CISWI regulations, the 

state indicated that the mills are likely to landfill 

these materials instead of recovering their fuel value if these 

materials are considered solid waste under the CISWI standards. 

Another industry commenter stated that four of their five 

U.S. pulp mills produce wastewater treatment residuals that are 

burned in biomass-fired combination fuel boilers. At one mill, 

the residual solids are harvested and sold under a purchase 

agreement to an Electric Utility Generating plant burning 

various sources of biomass because that mill does not have a 

biomass boiler designed to burn the residuals. The residuals are 

primary clarifier solids (mostly wood fibers too short for 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 229 of 526 

product use) which are harvested by dewatering through a screw 

press. The residuals are stockpiled in a specific managed area 

before being trucked to the power company. At that site, the 

materials are processed and conveyed with other forms of biomass 

for fuel in their biomass boiler. Use of the wastewater 

treatment residuals from the mill as a fuel at the purchasing 

site is permitted in their air permit. 

One commenter indicates that the energy manager at a mill 

will determine the approximate amount of different types of 

fuels needed to obtain the most energy under the best operating 

conditions. As pulp and paper sludge is generated, it is 

directed toward the hogged fuel pile or towards other non-fuel 

uses. This decision is based on whether the mill’s boiler 

is designed and permitted to burn pulp and paper sludge and the 

amount is determined by the energy demands on that particular 

day. 

Another commenter believes that the fact that not all pulp 

and paper sludge is combusted at pulp and paper mills is 

evidence that the wood products industry only combusts pulp and 

paper sludge for legitimate energy recovery, and not for 

disposal. According to the commenter, when the pulp and paper 

sludge is not needed as a fuel, it is used for non-fuel purposes 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 230 of 526 

or is discarded. When it is combusted, it is combusted for its 

energy value, as a legitimate fuel. 

One mill described by a commenter has elected to divert its 

own-make bark to beneficial use as mulch, rather than burning 

it, because it is of poorer quality than commercially available 

biomass. That same mill has recently invested in a new belt 

press which provides high quality sludge as fuel for its 

combination boiler. Since the press was installed in 2011, the 

percentage of mill sludge burned has increased to 80 percent 

from under 50 percent. Currently, the mill is burning more of 

the sludge from its process than the bark it also generates. 

At another plant, the commenter indicates that sludge is a 

by-product of the activated sludge treatment (AST) process. 

Their mills employ primary clarifiers to separate out solids 

from wastewater, of which 50 percent is wood fiber, the primary 

component.83 These solids are staged in holding or blend tanks 

prior to drying. In addition to primary clarifiers and aeration 

basins, AST systems employ secondary clarifiers (large, open, 

circular concrete tanks) in which biological solids exiting the 

aeration basin(s) are separated by gravity from wastewater. The 

process is carefully regulated to accomplish two objectives: 

 

83 Washington State Department of Ecology Industrial Footprint 

Project Waste Stream Reduction and Re‐Use in the Pulp and Paper 

Sector, June 2008. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 231 of 526 

making the water as clean and free of solids as possible, while 

retaining activated sludge (active microbes) to re-inject into 

the biological treatment stage of the process. As part of this 

continuous loop, some activated sludge must be removed from the 

system to maintain the optimal population of active microbes for 

effective treatment. 

After excess secondary sludge is removed from the treatment 

loop at three of the mills, it is mixed with primary sludge in 

blend tanks prior to being dried on belt presses to a suitable 

moisture level for burning or other uses. Sludge is introduced 

into the mills’ solid fuel feed systems by means of conveyers, 

where it becomes thoroughly mixed with other fuels in the 

conveyer systems before being introduced into the mills’ 

combination boilers. At one mill, primary sludge is dried 

separately by means of screw presses, while secondary sludge is 

dried using a belt press. The two fuels are fed separately by 

conveyers onto the mill’s main solid fuel conveyer, which 

transports the bark/sludge mixture to a surge bin. The fuel is 

passed through a “waste heat dryer,” where it is briefly exposed 

to boiler flue gas before being fed into the combination boiler. 

The process at all four mills is continuous. Operators monitor 

and manage the sludge on a twenty-four hour basis. Sludge drying 

takes place entirely within buildings, where the tanks, pipes, 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 232 of 526 

mixers, pumps, polymer feed systems, conveyers, presses, 

diversion gates and valves, monitoring devices, and other 

equipment necessary to produce suitable sludge are housed. 

Sludge burned in the boilers is transported to the boilers 

on feed systems designed to ensure sludge, biomass, and other 

solid fuels are homogeneous, thoroughly mixed, and not exposed 

to the elements while being conveyed to the boilers. After its 

removal from wastewater treatment, no sludge touches the ground 

until it is burned, beneficially used (e.g. recycled feedstock 

to make newsprint), or landfilled. 

The commenters indicate that the moisture content of 

biomass is highly variable. Operators control fuel use based on 

the mill’s need for steam and electricity, fuel costs, fuel 

quality, and fuel availability. All factors can change at a 

moment’s notice, since the production process is constantly 

changing. Pulp and paper production swings or curtailments are 

common. Energy demand, fuel cost, or fuel quality may make it 

necessary or desirable to reduce biomass and sludge combustion, 

even to switch entirely to fossil fuels. Environmental emissions 

occasionally can be a factor in fuel use, particularly during 

boiler startup or shutdown, or when the mill is experiencing 

rapid fluctuations in steam demand. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 233 of 526 

Response: Based on the information submitted, and as discussed 

further in our responses below, the EPA is listing as a 

categorical non-waste fuel under section 241.4 dewatered pulp 

and paper sludges that are not discarded and are generated and 

burned on-site by pulp and paper mills that burn a significant 

portion of such materials where such dewatered residuals are 

managed in a manner that preserves the meaningful heating value 

of the materials. 

This determination for pulp and paper sludge as a 

categorical non-waste fuel represents the Agency’s finding, 

after balancing the legitimacy criteria with other relevant 

factors, that those mills that burn a significant portion of 

these pulp and paper sludges are burning them as a commodity 

fuel for energy recovery and not discard. The discussion above 

indicates that these mills have been designed to utilize pulp 

and paper sludges, and use of that material as a fuel is an 

integral part of facility operations. Decisions regarding use 

and the right mix of fuel in any given day are based on the 

boiler conditions, fuel availability, energy needs, air quality 

requirements, and cost. 

Comment: The EPA requested information on the amount of pulp and 

paper sludge burned as fuel. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 234 of 526 

In 2010, members of AF&PA burned 772,034 dry tons of pulp 

and paper sludge, which represents approximately 25 percent of 

the pulp and paper sludge generated by members of AFPA during 

the year.84 However, approximately 90 percent of the AF&PA member 

facilities that responded to their survey (42 out of 47) that 

use dewatered pulp and paper sludge as fuels do so at a 

significant rate (between 70-100 percent of these materials that 

are generated are burned). In fact, one third of the AF&PA 

facilities that responded to their survey (16) that burn pulp 

and paper sludges, burn 100 percent of the materials generated.85 

Response: As the commenter indicates, while 25 percent of pulp 

and paper sludges that are generated are used as fuels on an 

industry-wide basis, the vast majority of facilities that 

responded to the survey that use dewatered pulp and paper 

sludges as fuels do so at a significant rate. In light of the 

information on use of pulp and paper sludges, the Agency finds 

that for those pulp and paper mills that burn a significant 

portion, that their use as a legitimate fuel is integral to the 

operation of the pulp and paper mill. The fact that these 

sludges meet the contaminant legitimacy criterion also, in the 

 

84 Docket EPA-HQ-OAR-2003-0119-2619 

85 See April 4, 2012, letter from Timothy G. Hunt to James 

Berlow. A copy of this letter has been placed in the docket for 

today’s rulemaking. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

During Review*** 

Page 235 of 526 

EPA’s view, shows that these sludges when burned on-site are not 

being discarded. 

As discussed above, while the Agency is not defining a 

specific percentage of dewatered pulp and paper sludges that 

would need to be burned to qualify for the categorical listing 

in section 241.4, the Agency would consider the 42 mills that 

responded to the AF&PA survey as meeting the listing 

description. Where a facility has burned or burns in the future 

a significant portion of the dewatered pulp and paper sludges 

that are generated, the facility is clearly dependent upon the 

use of these materials as fuels in much the same way that wood 

manufacturing facilities are dependent upon the stream of 

resinated wood residuals to meet their energy demands. 

Specifically, we note that the percentage of overall use of pulp 

and paper sludges as a fuel at facilities burning a significant 

portion of the material (70 percent in the AF&PA comment above) 

is similar to the use of resinated wood within the wood products 

industry - - approximately 73 percent of resinated wood 

generated is either used as a fuel or is recycled back into the 

wood manufacturing process.86 As noted above, mills that burn a 

 

86 See Materials Characterization Paper In Support of the Final 

Rulemaking: Identification of Nonhazardous Secondary Materials 

That Are Solid Waste – Resinated Wood Products. Docket EPA-HQRCRA-2008-0329-1820. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 236 of 526 

significant portion of their dewatered pulp and paper sludges 

on-site as fuel in the future would also qualify for the listing 

description.87 

On the other hand, when a pulp and paper mill burns a 

relatively small percentage of their dewatered pulp and paper 

sludges on-site as a fuel (e.g., the five mills that responded 

to the AF&PA survey that burn less than 20 percent), the Agency 

has determined that such sludges are not viewed the same by the 

mill operator in that they do not rely on the sludges for their 

energy value. As noted by one commenter, some mills may not 

produce pulp and paper sludge with sufficient fiber, such that 

the sludge is a viable fuel. Therefore, the Agency finds that 

such pulp and paper sludge should not be included in the 

categorical listing in section 241.4.88 Those companies would 

need to make case-by-case determinations regarding legitimacy to 

support use as a fuel. 

 

87 While the Agency is not including a specific requirement for 

pulp and paper mills to document the amount of dewatered 

wastewater treatment residuals they burn on-site as a fuel, we 

would recommend that such pulp and paper mills include such 

documentation in case there are any questions as to whether the 

pulp and paper mills’ dewatered wastewater treatment residuals 

qualifies for the categorical listing in 241.4. 

88 The Agency acknowledges that some portion of these pulp and 

paper sludges are land applied. While the Agency considers such 

uses as beneficial, such recycling is not integral to pulp and 

paper operations, and therefore, the Agency would not consider 

this form of recycling in determining whether a facility is 

recycling a significant portion of their pulp and paper sludges. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 237 of 526 

Comment: The EPA requested more data on contaminant levels – 

particularly chlorine and metals. 

The National Council on Air and Stream Improvement (NCASI) 

undertook a thorough evaluation of data related to contaminant 

levels in pulp and paper sludge.89 NCASI looked at the most 

robust information about pulp and paper sludge, which is found 

in the EPA’s Boiler MACT database. That database has pulp and 

paper sludge data comprised of nearly 5,280 records of 

individual data points corresponding to 46 AF&PA member pulp 

mills. 

Table 8 of this preamble includes data from the EPA 

traditional fuels table, as well as the EPA Boiler MACT database 

for pulp and paper sludge. 

 

89 Docket EPA-HQ-OAR-2003-0119-2619 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Table 8. Comparison of Traditional Fuel Contaminant 

Concentrations With Pulp Mill Sludge Data From the EPA’s Boiler 

MACT Database 

Lit. 

Sour

ce 

Rang

e1

Compou

nd 

Un

it

s 

Data from EPA OAQPS Databases Data from Boiler MACT 

Database, v. 72

Industrial Sludge 

NAICS 322 

Coal Biomass Fuel Oils 

Mi

n 

Ma

x 

Av

g.

Mi

n 

Max

A

v

g

. 

Mi

n 

Ma

x 

Av

g.

N

o

. 

N

D

s 

Mi

n 

Ma

x 

90

% 

UP

L3

KM4

Mea

n 

ND - 

26 

Antimo

ny 

(Sb) 

pp

m 

ND 6.

9 

1.

7 ND 6 

0

.

9 

ND 3.

8 

3.

5 

1

1

6 

3

7 ND 3.14

2.

0 

0.4

5 

ND - 

80 

Arseni

c (As) 

pp

m 

ND 

17

4 

8.

2 ND 298

6

.

3 

ND 13 1.

3 

3

7

6 

9

4 ND 

10

5.

0 

70

.6 

7.9

4 

0.1 

- 15 

Beryll

ium 

(Be) 

pp

m 

ND 20

6 

1.

9 ND 10 

0

.

3 

ND 19 2.

3 

3

5

8 

1

0

2 

ND 2.

6 

1.

97 

0.3

5 

ND - 

3 

Cadmiu

m (Cd) 

pp

m 

ND 19 0.

6 ND 17 

0

.

6 

ND 1.

4 

0.

4 

3

8

5 

5

3 ND 19.0

8.

2 

1.5

5 

ND - 

130 

Chromi

um 

(Cr) 

pp

m 

ND 16

8 

13

.4 ND 340

5

.

9 

ND 37 3.

7 

3

8

8 

5 ND 

17

0.

0 

77

.3 

17.

14 

ND - 

30 

Cobalt 

(Co) 

pp

m 

ND 25

.2 

6.

9 ND 213

6

.

5 

ND 8.

5 

1.

1 

1

2

7 

2

2 ND 

14

.4

16

.7 

3.7

8 

ND - 

340 

Lead 

(Pb) 

pp

m 

ND 

14

8 

8.

7 ND 229

4

.

5 

ND 52 4.

3 

3

4

7 

1

9 ND 

20

1.

0 

64

.2 

11.

53 

5 - 

840 

Mangan

ese 

(Mn) 

pp

m 

ND 51

2 

26

.2 ND 15,800

3

0

2 

ND 32

00

11

8 

3

6

9 

3 ND 

3,

31

0 

2,

65

0 

559

.8 

ND - 

1 

Mercur

y (Hg) 

pp

m 

ND 3.

1 

0.

09 ND 1.1

0

.

0

3 

ND 0.

2 

0.

02

3

9

7 

4

0 ND 1.40

0.

72 

0.1

14 

ND - 

540 

Nickel 

(Ni) 

pp

m 

ND 73

0 

21

.5 ND 175

2

.

8 

ND 

27

0 

24

.1

3

8

1 

9 ND 

18

0.

0 

67

.7 

14.

990

ND - Seleni pp ND 74 3. ND 9 1 ND 4 0. 3 1 ND 6. 4. 0.9
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Page 239 of 526 

10 um 

(Se) 

m .3 4 .

1 

8 1

6 

9

7 

0 5 0 

 TSM 

2,

06

7 

92

.6

17,

098

3

3

0

.

9 

3,

60

9 

15

9.

5 

 

2,

96

4 

618

.5 

TSM 

w/o Mn 

1,

55

5 

66

.4

1,2

98 

2

8

.

9 

40

9 

41

.5 314 

58.

7 

Chlorin

e (Cl) 

pp

m 

ND 

9,

08

0 

99

2 ND 5,400 

25

9 ND

1,

26

0 

13

3 

3

7

4 

11 ND 48

00

2,

06

4 

378

Total 

Halogen

s 

pp

m 

9,

25

8 

1,

05

6 

5,5

28 

29

1 

1,

27

4 

14

2 

2,

39

4 

445

1 Nitroge

n (N) 

g/

kg 

13

.6 

54

.0 

15

.1

2.

2 4.6 3.46

2.

0 

3.

0 

2.

25

2

6 0 0.8 

17

.7

26

.4 7.7

2 Sulfur 

(S) 

g/

kg 

0.

74 

61

.3 

13

.6 ND 6.1 0.70 ND 57.0

8.

28

1

1

8 

0 ND 6.

3 

8.

8 3.0

The grey shaded cells indicate an outlier test was performed and 

the outlier(s) identified was confirmed based on further 

graphical observation (see further explanation below). 

1

Total range determined from literature sources - coal - Clarke 

and Sloss (1992); biomass - Energy Research Centre for the 

Netherlands, Phyllis Biomass database. 

http://www.ecn.nl/phyllis; oil - U.S. EPA (1999), Appendix B; 

2

Boiler MACT Database sludge analysis data; 

3

Chebyshev UPL for non-normal data sets; 

4

 Kaplan-Meier; Selenium (Se) - with the Rosner's test (n > 25), 

for 1% significance level, one potential outlier was 560 ppm, 

which was rejected after graphical observation of the data. The 

next highest detect was 6 ppm. 

Footnotes on Other Literature Data 

 1 Literature contains a value of 39.5 g/kg for nitrogen in 

biomass and 8.95 g/kg for nitrogen in fuel oils; 

 2 Literature contains a value of 8.7 g/kg for sulfur in 

biomass. 

 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 240 of 526 

The commenter indicates, as shown in the Table, that 

contaminant levels in pulp and paper sludge are well within the 

ranges of metals found in traditional fuels. For all 11 HAP 

metals, except manganese (Mn), the 90 percent UPL value for 

sludges is less than the corresponding maximum for coal. For Mn, 

which is principally derived from biomass, the 90 percent UPL 

value for sludges is well below the maximum for biomass. This is 

also reflected in the total selected metal (TSM) comparisons 

with and without Mn between coal, biomass and pulp and paper 

mill sludges. Chlorine and total halogens (Cl + Fl) in sludge 

compare favorably with both biomass and coal. Nitrogen and 

sulfur in sludge also compare favorably with coal, although the 

commenter also points out that the nitrogen and sulfur contents 

are generally not indicative of HAP formation potential for any 

fuel, and in the case of pulp and paper mill sludges in 

particular, the sulfur content of these sludges is typically in 

the inorganic sulfate form that predominantly ends up in the 

combustion ashes. 

NCASI found a paucity of data on organics in pulp and paper 

sludge. Except for dioxins/furans, which had been evaluated 

extensively in the 1990s, organics are not expected to be found 

in pulp and paper sludges. Due to the changes in bleaching 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release 

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Page 241 of 526 

techniques which demonstrated significant reductions in the 

existence of dioxins/furans in sludge, testing for even dioxins 

has not been undertaken recently. NCASI notes that of the data 

that do exist, organics are rarely found and those that are 

identified are frequently below the detection limit. 

Overall, the commenter states that contaminant levels in 

pulp and paper wastewater treatment residuals compare well to 

those found in traditional fuels. 

Response: Based on the information provided, the Agency finds 

that pulp and paper sludges, meet the comparable contaminant 

criterion (241.3(d)(1)(iii)). The data confirms the conclusions 

in the NHSM final rule regarding chlorine and metals are 

comparable to the levels found in coal, which is a traditional 

fuel that may be burned in these facilities. 

Comment: The EPA requested information on what steps the 

industry has taken to ensure the quality of pulp and paper mill 

sludge when used as a fuel at pulp and paper mills is consistent 

with that of a fuel product. 

Commenters state that pulp and paper mills that generate 

pulp and paper sludge do so as part of their compliance with the 

Clean Water Act requirements, as well as part of an effort to 

return as much wood fiber to use as possible, either as an input 

to the manufacturing process or as a fuel. The strategies that 
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each mill uses to meet those requirements differ depending upon 

the type of product, the location of the mill, and the specific 

standards established by the EPA and the respective states. 

However, mills clean wastewaters prior to discharge, thus 

creating primary and a variety of secondary pulp and paper 

sludges, all of which capture wood fibers. Furthermore, the 

question of whether the quality of the pulp and paper sludge is 

appropriate for a particular mill is based on the boiler design. 

As such, there are some boilers well suited to burn it; others 

cannot burn the material. 

At one commenter’s mill, for example, the company has 

invested over $7 million upgrading sludge drying and management 

equipment. The object of these large investments was not to 

remove all of the moisture in the sludge. Rather, it was to make 

sludge quality consistent with that of the wet biomass burned in 

its combination boilers. Either too much or too little moisture 

can have a deleterious effect on the boilers’ combustion. One 

mill recently installed a belt press to improve the reliability 

of its sludge management system and increase the average solids 

content of its sludge. Since then, the sludge has occasionally 

caused combustion problems in the boiler because it was too dry, 

necessitating additional quality control to optimize the 

sludge’s moisture content. 
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Another commenter stated they invested over $3 million to 

prevent unwanted materials from reaching the treatment process 

and being discharged in mill effluent or being incorporated into 

the pulp and paper sludge. Their mills make coated paper 

products, the coatings consisting largely of clay and other 

minerals. Improved equipment and operating procedures have 

significantly lowered sewer losses of these materials, improving 

the quality of wastewater and reducing the ash content of these 

pulp and paper sludges. To further pollution prevention, their 

mills set stringent specifications for raw materials, such as 

sulfuric acid and caustic soda, which minimizes the introduction 

of trace amounts of heavy metals into the process. 

From the standpoint of process control, the commenter 

stated that sludge management processes are continuous, 

enclosed, and carefully controlled. In contrast, bark and wood 

chips may be exposed to the elements for extended periods before 

being burned. Depending on the season, hardwood bark can get 

“stringy” and become very difficult to process as fuel. Frozen 

bark or chips can jam or disable equipment. Purchased fuel can 

have excessive rocks or grit. It is difficult to control the 

quality of biomass burned in the commenter’s boilers. Sludge 

frequently exhibits less variability in quality than other types 

of biomass. 
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Response: Based on the information provided, the Agency finds 

that, for facilities burning a significant portion of the 

dewatered sludge, that sludge management processes are carefully 

controlled, and the industry has taken the necessary steps to 

ensure the quality of pulp and paper mill sludge when used as a 

fuel at pulp and paper mills. On the other hand, for those pulp 

and paper mills that do not burn a significant portion of their 

dewatered wastewater treatment sludges, the Agency does not 

believe that the same steps have been taken to ensure the 

quality of the pulp and paper mill sludge that is used as a fuel 

and thus, is not an integral part of the pulp and paper mill 

operations. 

Comment: The EPA requested information on what are the standard 

practices used to ensure pulp and paper sludge has meaningful 

heating value. 

As noted in the October 2011 pulp and paper sludge paper 

the AF&PA submitted prior to the December 2011 proposal, the 

overwhelming majority of pulp and paper mills remove water from 

pulp and paper sludge prior to managing it in any way. Belt and 

screw presses are most commonly used in the industry. Some mills 

use steam heated filter presses. Some pulp and paper sludge is 

also further dried in steam heated rotary driers. As indicated 

previously, sludge drying takes place entirely within buildings 
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where equipment necessary to produce suitable sludge is housed. 

Sludge burned in the boilers is transported to the boilers on 

feed systems designed to ensure sludge, biomass, and other solid 

fuels are homogeneous, thoroughly mixed, and not exposed to the 

elements while being conveyed to the boilers. In all instances, 

the goal is to raise the solids content – and thus, Btu value. 

Response: Based on these comments and other information in the 

record, the Agency finds that facilities that burn a significant 

portion of these materials take the steps necessary to dewater 

the pulp and paper sludge and to manage such dewatered sludge to 

maintain its meaningful heating value and burn the sludge for 

energy recovery. 

Comment: The EPA requested information on how are pulp and paper 

mill pulp and paper sludge is managed when shipped off-site.

There are several mills within the industry that have 

agreements with other facilities, primarily electric utilities 

that purchase pulp and paper sludges for use as biomass-based 

fuel. For the most part, these arrangements occur when there is 

a utility close to the pulp and paper mill because the cost of 

shipping such sludges long distances may be prohibitive. Pulp 

and paper sludges may be sent off-site when it is being used by 

other entities to produce another product, (including fuel 
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pellets90), used for other purposes (land application, use as 

landfill cover), or for final disposal. Pulp and paper sludges 

are shipped by containers, truck, or rail. 

Response: The Agency recognizes that, as described above, some 

pulp and paper sludges are sent off-site for use as a fuel. 

However, the Agency has restricted the categorical listing to 

those pulp and paper sludges that are burned on-site because the 

Agency has minimal information on off-site use of these 

materials. In fact, the pulp and paper industry indicates that 

the great majority of these sludges, when burned as a fuel are 

burned on-site. Also, in the few instances that the pulp and 

paper industry discussed in their comments that these materials 

were shipped off-site, they seem to be sent to other industries. 

The fact that these sludges are sent to other industries would 

not necessarily disqualify those dewatered pulp and paper 

sludges from being considered for listing categorically. 

However, the Agency does not have sufficient information to make 

any determination.91

 

90 When pulp and paper sludges are sufficiently processed, and 

such processed material meets the legitimacy criteria, the 

processed materials are non-waste fuels whether burned within or 

outside the control of the generator. 

91 We note that in the situation where pulp and paper sludges are 

transferred beyond the control of the generator, a facility may 

also petition the Agency to receive a non-waste determination, 

as appropriate. 
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Comment: For reasons stated previously in comments on the June 

2010 proposed rule, one commenter argues that pulp and paper 

sludges are waste when burned regardless of whether it is burned 

by the company that generated it and regardless of whether it 

meets the EPA’s legitimacy criteria. Paper mill sludge is a 

waste because it is discarded within the meaning of RCRA. 

The EPA’s description of pulp and paper sludge shows that 

it remains a waste even under the Agency’s own definition of 

discard. First, the EPA acknowledges that pulp and paper mills 

have no use for pulp and paper sludge; the fibers it contains 

are “too short to be suitable for papermaking and it contains 

microorganisms that feed on organic material in the wastewater 

stream.” 92 Second, the fact that paper mill sludge comes from 

“the wastewater stream,”93 in itself confirms that it is a waste. 

Third, the EPA’s discussion of the contaminant levels in 

paper mill sludge shows substantial variation in chlorine 

levels. Where the EPA encounters such variability in the course 

of setting floors for CISWI units in the very same Federal 

Register notice, the Agency uses a 99th percent UPL to assure 

 

92 See 76 FR 80485. 

93 Id.
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that the level it chooses will not be exceeded. Yet, where the 

EPA encounters variability in the chlorine levels in pulp and 

paper sludge – variability that could lead to significantly 

higher emissions of chlorinated pollutants, such as HCl and 

dioxins – the Agency simply dismisses it without further ado. 

The EPA’s disparate treatment of the variability of emissions 

for floor setting and of the chlorine levels in pulp and paper 

sludge for the purposes of considering a categorical declaration 

that such sludge is not a waste is unexplained and arbitrary. 

If the Agency believes that such variability exists, it 

should be concerned about the possibility that some sludges may 

have far higher chlorine levels than it assumes – as, indeed, 

the record shows some sludge does – and should take steps to 

ensure that this is not the case before it even considers an 

exemption. Indeed, the Agency’s failure to examine this 

possibility renders the existing rule, which allows generators 

to burn their own sludge, arbitrary and capricious. 

Fourth, the EPA admits that sludge contains extremely low 

heating values, so low in some instances as to flunk the 

Agency’s legitimacy criteria. That sources typically dewater 

their sludges does not make these sludges any less a waste, even 

under the Agency’s own definition of discard. The EPA does not 

say what the heating value of the sludges is after dewatering, 
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nor does it make any difference what the “dry weight” heating 

value of sludges might be, as they are not at “dry weight” when 

burned. The reality is that paper mills find it cheaper to burn 

their sludges than to dispose of them safely and that because 

these sludges are largely “wastewater” and contain high levels 

of chlorine and other contaminants burning them requires large 

quantities of other fuel and generates high levels of pollution. 

Response: The Agency disagrees with the commenter that all pulp 

and paper sludges are wastes fuels when combusted. To the extent 

comments were submitted in response to the March 2011 final 

rule, the Agency need not respond. Below, the EPA responds to 

the new points raised in the comments. 

With respect to the particular arguments on the categorical 

listing, the Agency disagrees that the sludge remains a waste 

even under the Agency’s own definition of discard. The comment 

is incorrect when it states that the EPA has acknowledged pulp 

and paper mills have no use for pulp and paper sludge because 

the fibers it contains are “too short to be suitable for 

papermaking and it contains microorganisms that feed on organic 

material in the wastewater stream.”94 In the proposed rule, we 

stated that fibers that end up being too short can be 

detrimental to paper quality. Although this would not be 

 

94 See 76 FR 80485. 
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suitable for papermaking, these sludges are a valuable resource 

as energy-containing secondary materials as discussed in detail 

in the comments above. As much as 50 percent of the sludge is 

composed of wood fibers which are similar in content to other 

types of biomass fuel combusted. 

Further, the Agency disagrees that pulp and paper mill 

sludges are wastes because they are contained in a “wastewater” 

stream. The D.C. Circuit in, API v. EPA, 216 F.3d at 58, 

rejected the proposition that the mere presence in a wastewater 

stream makes a material a waste. In API, the D.C. Circuit 

criticized the EPA for not saying why it concluded that the 

disposal motivation, compliance with water quality standards, 

predominated over the recycling motivation, recovery of oil from 

primary wastewater treatment. Plainly, the mere presence of oily 

material in wastewater did not make the oil a waste. In this 

case, the EPA has found in its categorical listing that the 

motivation for burning the pulp and paper sludge is to use its 

inherent value as a fuel and not for disposal. Comments have 

provided the Agency with information that facilities that burn a 

significant portion of these sludges consider them to be an 

integral part of their production process, particularly in the 

value these materials provide as a critical source of energy. We 

disagree that the disposal motivation predominates over the true 
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value of these sludges as an important fuel, integral to the 

production processes. 

The EPA also disagrees that the our treatment of the 

variability of emissions for floor setting and of the chlorine 

levels in pulp and paper sludge for the purposes of considering 

a categorical declaration that such sludge is not a waste is 

unexplained and arbitrary. The Agency notes that, rather than 

dismissing the variability of chlorine levels in pulp and paper 

sludges, it has considered all available data—including data on 

variability—and reached the conclusion that contaminant levels 

in pulp and paper sludges are comparable to or lower than those 

in the appropriate traditional fuel(s). The EPA acknowledges 

that, based on data submitted to the Agency since promulgation 

of the March 2011 final rule and presented in the December 2011 

proposed rule, chlorine levels in paper mill sludge show 

substantial variation. This is an important factor to consider 

when making a categorical non-waste determination, and the 

Agency has considered mean concentrations, the range of 

concentrations, and variability when analyzing pulp and paper 

sludges. 

As stated in the proposed rule and information in the 

rulemaking record, data for pulp and paper sludges show mean 

chlorine concentrations of 361 ppm, well below the mean of 992 
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ppm observed in coal. Data for pulp and paper sludges also show 

maximum chlorine concentrations of 4,800 ppm, well below the 

maximum of 9,080 ppm observed in coal and below the maximum of 

5,400 ppm observed in untreated wood and biomass materials. The 

variability of chlorine levels in pulp and paper sludge is 

demonstrated by a standard deviation of the mean of 661 ppm.95 96

This variation in chlorine levels, although high, does not 

discount the fact that both average and maximum chlorine 

concentrations in pulp and paper sludge are lower than those in 

coal, which is defined as a traditional fuel. 

The comment also implied that the EPA should use the 99 

percent UPL, as is used to set the CISWI floors, to ensure that 

these pulp and paper sludges do not contain excessive 

contaminant levels. The Agency disagrees that any one 

statistical tool or comparison methodology will fit every 

situation given the variety of NHSMs, traditional fuels, 

contaminants, and combustion units that exist. Nevertheless, the 

Agency has calculated the 99 percent UPL for chlorine levels in 

pulp and paper sludge in response to the comment and come to the 

same conclusion. The 99 percent UPL for the same dataset of 93 

 

95 See 76 FR 80485. 

96 Contaminant Concentrations in Traditional Fuels: Tables for 

Comparison, November 29, 2011, can be found at 

http://www.epa.gov/epawaste/nonhaz/define/index.
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samples analyzed in the proposed rule would be 6,970 ppm, a 

value below chlorine concentrations observed in coal.97

Finally, we disagree that pulp and paper sludge contains 

extremely low heating values that would fail the Agency’s 

legitimacy criteria. In terms of meeting the legitimacy criteria 

for a meaningful heating value, the Agency indicated in the NHSM 

final rule that pulp and paper sludges have a heating value of 

between 3,300–9,500 Btu/lb, on a dry basis -- no specific 

information having been submitted on the ‘‘as fired’’ heating 

value of these materials. The final rule concluded that pulp and 

paper sludges meet the legitimacy criterion for being managed as 

a valuable commodity as they are dewatered to increase their 

energy value, collected on a continual or frequent basis (as 

produced), and further processed and consolidated, including the 

removal of biosolids. Further, as discussed in detail above, 

where a facility is burning a significant portion of the 

dewatered pulp and paper sludges that are generated as fuel 

rather than other purchased biomass or fossil fuels, the 

facility is clearly dependent upon the heating value of these 

 

97 The 99 percent Chebyshev UPL for non-normal datasets was 

calculated using EPA’s ProUCL 4.0 Software available at 

http://www.epa.gov/nerlesd1/tsc/software.htm. 
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materials.98 Thus, we find, as discussed in the final rule, that 

pulp and paper sludges are not discarded and generally meet the 

meaningful heating value legitimacy criterion (46 FR 15488). 

b. Coal Refuse99

In the 2011 NHSM final rule, the EPA included currently 

generated coal refuse within the definition of traditional fuel 

codified in 40 CFR 241.2. In discussing its determination that 

currently generated coal refuse is a traditional fuel, the 

Agency said, “the fact that coal refuse has been used and 

managed as a fuel for thirty years when coupled with the fact 

that coal refuse is unique from other non-hazardous secondary 

materials in that it is a byproduct of fuel production processes 

and is itself a raw material that can be used as a fuel leads us 

to determine that coal refuse that is currently generated and 

 

98 The final rule notes that meaningful heating value is derived 

from an NHSM with energy content lower than 5000Btu/lb if the 

energy recovery unit can cost-effectively recover meaningful 

energy from the NHSM used as fuel (76 FR 15541). 

99 Coal refuse refers to any by-product of coal mining or coal 

cleaning operations, consisting primarily of non-combustible 

rock with attached coal. Due to advances in technology over the 

past century, the processing of coal has evolved, such that 

materials that are now generated in the coal mining process, 

which would have been considered coal mining rejects in the past 

and discarded in waste piles, are now handled and processed as 

coal. 
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used as a fuel should be considered a traditional ‘alternative 

fuel.’”100 

The 2011 NHSM final rule also determined that coal refuse 

that has been placed in legacy piles would not meet the 

definition of traditional fuels, as they clearly have been 

discarded in the first instance.101 Since coal refuse recovered 

from legacy piles is subjected to the same operations that are 

used to process virgin coal, which serve to both increase energy 

values, as well as reduce contaminants, the EPA determined that 

such processes were sufficient to meet the definition of 

“processing,” as codified in 40 CFR 241.2, and such recovered 

coal refuse would not be considered a solid waste when used as a 

fuel in a combustion unit provided those materials satisfy the 

legitimacy criteria.102 

The 2011 NHSM final rule also stated our belief that coal 

refuse recovered from legacy piles contains contaminants at 

levels that are comparable to or lower than coal refuse that is 

currently generated, as the recovered coal refuse is subject to 

the same processes as currently-generated coal refuse in order 

to meet the same fuel specifications. Since promulgation of the 

2011 NHSM final rule, the Agency has further clarified that it 

 

100 See 76 FR 15507. 

101 Id. 

102 See 76 FR 15509.
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believes that coal refuse recovered from legacy piles that is 

processed and managed in the same manner as currently generated 

coal refuse satisfies the legitimacy criteria.103

Having determined that coal refuse recovered from legacy 

piles that is processed and managed in the same manner as 

currently generated coal refuse satisfies the legitimacy 

criteria, the 2011 proposed rule solicited comment on whether to 

categorically list post-processed coal refuse from legacy piles 

as a non-waste fuel in 40 CFR 241.4(a). However, the EPA made it 

clear that it was not reopening any other issues regarding coal 

refuse. Other comments regarding coal refuse are responded to in 

the record for the final rule. In this part of the preamble, we 

are only responding to the issue of whether coal refuse 

processed from legacy piles should be considered a non-waste 

fuel on a categorical basis. Accordingly, the EPA is not 

responding in this preamble or the response to comment document 

on issues regarding whether coal in legacy piles are traditional 

fuels. 

Comment: One commenter states that not every material that is 

discarded is treated as solid waste under the rule. For example, 

the EPA includes numerous materials within its definition of 

 

103 See August 15, 2011, letter to Jeff A. McNelly, ARIPPA (cited 

in the proposed rule: 76 FR 80486). 
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“traditional fuels” and “clean cellulosic biomass” that are 

commonly understood as used, discarded, and abandoned, listing, 

for example, corn stover, peanut shells, and certain types of 

demolition materials. The commenter argues that each of these 

materials is either discarded or has filled its original purpose 

and may be collected by a different party for a different 

purpose (i.e., use as a fuel). 

The commenter continues that although the Agency has ample 

authority to exempt certain articles from classification as 

solid wastes, it did not consistently apply the term “discarded” 

in the context of legacy coal refuse. For example, the EPA 

recognized that on-specification used oil and clean C&D 

materials should be treated as traditional fuels when combusted 

for energy generation. Thus, the commenter urges the Agency to 

revisit its application of the “discard” principle and treat all 

coal refuse, regardless of when they were generated and 

regardless of processing to be fuels and not wastes. 

Response: The EPA disagrees with the comment, which seems to 

misunderstand the purpose of this rulemaking action. If the 

Agency determines in this rulemaking that a material is a solid 

waste when combusted, the unit combusting that material would be 

subject to emissions standards issued under CAA section 129 even 

if burned as a fuel. A material is not discarded simply because 
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it is no longer used for its original purpose. It may be used as 

a fuel product by another party, providing the conditions the 

EPA has explained in the rule apply. In such a case, the reused 

material is not a waste. Further, the Agency is not exempting 

any materials from the definition of solid waste. The EPA is 

only describing the kinds of materials that are wastes when 

burned in combustion units, even if they are burned for energy 

recovery. The EPA consistently applies the concept of “discard.” 

Materials listed as examples of clean cellulosic biomass 

cited by the commenter have not been discarded in the first 

instance, as is clearly the case for coal refuse abandoned in 

legacy piles. While some materials have filled their original 

purpose, that fact, in and of itself, does not equate to 

discard. Clean cellulosic biomass is considered to be a type of 

“alternative fuel” within the definition of “traditional fuel.” 

Such alternative fuels are developed from virgin materials that 

can now be used as fuel products.104 This applies to the examples 

mentioned by the commenter, including corn stover, peanut 

shells, and clean construction and demolition wood. Further, 

coal refuse mined today that would have previously been 

abandoned in piles are also alternative fuels that are now 

 

104 See definition of traditional fuels, as codified in 40 CFR 

241.2. We note that the December 2011 proposal did not solicit 

comment on the definition of traditional fuels. 
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grouped in the traditional fuel category because of new 

technology. This is separate from coal in legacy piles that have 

been traditionally wastes. 

Further, there is a clear difference between the management 

of the listed examples of clean cellulosic biomass and coal 

refuse abandoned in legacy piles. For example, the commenter 

characterizes corn stover as “typically left in the field to 

decay” and thus discarded. The EPA assumes this statement is 

based on the historic use of leaving corn stover in the field as 

a cover to reduce erosion and for nutrient content.105 As noted 

by the Agency previously, over the course of this rulemaking, an 

emerging market for corn stover and other primary and secondary 

agricultural residues is for use as a heat and power source for 

the production of corn and cellulosic ethanol.”106 When the 

determination is made to use corn stover for its fuel value, the 

materials are managed differently than merely “left in the field 

to decay.” If there were legacy piles of such materials, they 

too would have to be treated as wastes while in the legacy 

 

105 See Petrolia, Dr. Daniel R., “Economics of Crop Residues: 

Corn Stover.” June 2009. A copy of this document has been placed 

in the docket to today’s rulemaking. 

106 See Materials Characterization Paper in Support of the Final 

Rulemaking: Identification of Nonhazardous Secondary Materials 

That are Solid Waste, Biomass—Agricultural Residues and Food 

Scraps.” February 3, 2011. A copy of this document can be found 

in the docket for today’s rulemaking. 
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piles. We would also note that it is not unreasonable to expect 

that agricultural materials, such as corn stover, may be left on 

the field until there are sufficient amounts of those materials 

to be collected, baled, and transported. This is clearly a 

different scenario from coal refuse left in place in piles with 

no purpose other than abandonment and clearly managed as a waste 

for decades. 

With respect to used oil, the Agency has already explained 

in the final March 2011 rule the difference between onspecification and off-specification used oil as applied to the 

definition of solid waste. The on-specification used oil is 

considered an alternative fuel that has not been abandoned and, 

by regulation, may be burned with no more restrictions than 

refined product oil. Off-specification used oil is specifically 

described in the EPA’s regulations as a material that may only 

be burned in certain combustors because it exceeds contaminant 

levels established under part 279, rendering it offspecification and, accordingly, a waste. 

Comment: One commenter argues that off-specification tires are 

analogous to legacy coal refuse to the extent they are set aside 

and not used immediately by the factory. Since the Agency 

proposes to include off-specification tires within the 

definition of “established tire collection program” and not 
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consider these materials to be a solid waste when used a fuel, 

the Agency should treat legacy coal refuse similarly. 

Response: We disagree with the commenter that coal refuse 

abandoned in legacy piles is analogous to the handling and 

management of off-specification used tires. Coal refuse that has 

been placed in legacy piles decades ago has clearly been 

abandoned, thrown away and thus, discarded and historically 

managed as a waste. On the other hand, the Agency has 

information that tire manufacturers that have produced offspecification tires (including factory scrap) have contractual 

agreements in place to ensure these materials are collected, 

managed, and transported to the combustor. In fact, it is the 

requirement that scrap tires (including off-specification tires) 

be managed pursuant to established tire collection programs that 

ensures these materials are managed as a valuable commodity in 

order to meet the categorical non-waste determination codified 

in 40 CFR part 241.4(a). 

Further, as we have noted elsewhere in today’s preamble, to 

the extent that these off-specification tires are discarded, 

such as in tire piles, they would be considered solid waste in 

that they have been discarded, and would not be included within 

the categorical listing of “scrap tires that are not discarded 

and are managed under the oversight of established tire 
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collection programs, including tires removed from vehicles and 

off-specification tires.” 

Comment: One commenter states that the EPA, consistent with the 

intent of RCRA, should be encouraging the use of legacy coal 

refuse, not hampering them. The commenter argues that 

characterizing coal refuse in legacy piles as a solid waste 

could subject legacy coal refuse piles to additional federal and 

state requirements and potentially result in the piles being 

classified as open dumps or solid waste management units. 

Further, combustors of legacy coal refuse and their supplies 

would also be more likely to be subject to citizen suits under 

RCRA 40 CFR 7002. This commenter argues that the determination 

that unprocessed legacy piles are different—and should be 

regulated differently—than coal refuse generated from current 

mining operations is illogical because the characteristics of 

the materials are the same. Thus, although the EPA takes the 

position that subjecting legacy coal to the types of operations 

that are used to process virgin coal is sufficient to convert 

the legacy coal refuse from solid waste into a non-waste fuel, 

the initial designation as solid waste risks regulatory 

confusion regarding the status of the numerous piles of legacy 

coal refuse. 
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Response: This comment is clearly beyond the scope of this 

rulemaking proceeding. In the first place, legacy coal piles 

are, indeed, wastes. How they may be treated when they are in 

the piles is clearly beyond the scope of this rule. This rule 

deals with how the legacy coal is to be treated when it is taken 

from the piles and burned for fuel.

Comment: While supporting the concept of a categorical listing 

for legacy coal refuse, a few commenters argued that the Agency 

should not require that legacy coal refuse be “processed” in 

order to be considered a non-waste fuel. One commenter noted 

that the EPA does not require traditional fuels or resinated 

wood to undergo processing to be treated as a fuel, even though 

many of those materials would be understood to be discarded. 

Another commenter noted that the term “post-processing,” 

which was used in the proposal as a shorthand description of 

legacy coal refuse that has undergone processing, is too vague 

and should be eliminated so the use of extracted coal refuse 

undergoing further processing at the generating facility is not 

discouraged. If applied too literally, the commenter continued, 

any “post-processing” provision being imposed on treating legacy 

coal piles as fuel would not benefit the circulating fluidized 

bed (CFB) community and could hinder the usage of these piles as 

fuels. The commenter argues that the term “post-processing” 
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could be interpreted as requiring processing at the coal refuse 

excavation site, which would not be determinative of any 

relevant characterization of the coal refuse or its intended use 

as fuel. 

Response: In the 2011 NHSM final rule, the EPA discussed how a 

NHSM, once discarded, can be processed into a non-waste fuel.107

The proposed rule did not solicit comment on either the concept 

of processing a discarded NHSM into a non-waste fuel or the 

definition of “processing” itself, as codified in section 241.2. 

Therefore, the Agency does not address the concept or definition 

of processing in this final rulemaking. 

Again, however, the comment suggests a need to clarify the 

nature of the rulemaking exercise that the EPA is currently 

engaged in. First, we disagree with the commenter’s 

characterization that many of the traditional fuels and 

resinated wood should be understood to be discarded. Traditional 

fuels, by definition, are not discarded.108 If clearly discarded 

(e.g., a barrel of fuel oil dumped), even a traditional fuel 

would have to be processed per the part 241 regulations in order 

to be a non-waste fuel. However, it’s precisely because of their 

 

107 See 76 FR 15474-15477. 

108 See last sentence of “traditional fuels” definition, as 

codified in 241.2: “[Traditional] fuels are not secondary 

materials or solid wastes unless discarded” (emphasis added). 
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fuel value that makes it unlikely that traditional fuels will be 

discarded. We also disagree that resinated wood is discarded 

prior to being or when used as a fuel in a combustion unit. For 

a discussion of why we believe resinated wood is a non-waste 

fuel, please see Section II.E.3.b of this preamble.109 

As noted above, coal refuse abandoned in legacy piles has 

clearly been discarded in the first instance because the coal 

preparation technology did not yet exist that could utilize 

these materials for their fuel value. Thus, legacy coal refuse 

would have to be processed into a non-waste fuel. However, the 

Agency has previously recognized the uniqueness of coal refuse 

in that it is a byproduct of fuel production processes and is 

itself a raw material that can be used as a fuel.110 In the 2011 

NHSM final rule, the Agency determined that coal refuse that is 

recovered from legacy piles and used as fuel that is subjected 

to the types of operations that are used to process virgin coal 

 

109 See also discussion included in the 2011 NHSM final rule (76 

FR 15499-15502). 

110 See 76 FR 15507, which states, “Coal refuse is unique, however, from other 

non-hazardous secondary materials addressed in this rulemaking, as it is 

generated in the process of producing fuels (i.e., the mining of coal for use 

as fuel) and its subsequent use and value as a secondary material is also as 

a fuel. Since the primary product of a coal mining operation is itself a 

fuel, we consider coal refuse to be more akin to a raw material that is 

subsequently processed and utilized to produce a fuel. In other words, coal 

refuse is different from other non-hazardous secondary materials, such as 

used tires or resinated wood residuals, in that it is generated in the 

production of fuel and can be used itself as a fuel (and in fact has never 

been used for anything else).” 
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or currently generated coal refuse would meet our definition of 

processing as codified in 40 CFR part 241.2.111 

As the processing that is required is no different than 

what currently-generated coal refuse is subject to, we do not 

believe the processing requirement would hinder the usage of 

coal refuse piles. The Agency believes the only additional 

“processing” step is the actual extraction or recovery of the 

coal refuse from the legacy piles. To the extent that the term 

“post-processing” could be misconstrued as requiring an 

additional processing step at the extraction site or otherwise 

as compared to currently generated coal refuse, this was not the 

Agency’s intent. Rather, we have included the concept of 

“processing” in the categorical non-waste determination for 

legacy coal refuse, as legacy coal refuse was clearly discarded 

and, prior to processing, is a solid waste. That said, we 

clarify again today that coal refuse recovered/removed from 

legacy piles that is processed in the same manner as currently 

generated coal refuse would meet the definition of processing as 

codified in section 241.2. No additional processing is required 

given the uniqueness of coal refuse. For commenters suggestions 

 

111 See 76 FR 15509. In addition, subsequent to the 2011 NHSM 

final rule, EPA has reiterated this determination. See August 

15, 2011, letter to Jeff A. McNelly, ARIPPA (cited in the 

proposed rule: 76 FR 80486).
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regarding the explicit wording of the categorical listing for 

legacy coal refuse, see additional response to comments below. 

Comment: In support of the Agency’s soliciting comment on 

whether to add legacy coal refuse to the list of categorical 

non-waste fuels proposed in 40 CFR part 241.4, one commenter 

states that once removed from the physical mining location, 

legacy coal refuse and currently-generated coal refuse are 

indistinguishable. Thus, coal refuse from legacy piles will be 

managed in the same manner as coal refuse, will have similar 

heating value as coal refuse and be used as a fuel in a 

combustion unit that recovers energy, and can be expected to 

have similar contaminant levels as coal refuse because it is 

ostensibly the same material. 

Response: We agree that coal refuse recovered/removed from 

legacy piles and processed in the same manner as currently 

generated coal refuse would meet both the definition of 

processing and the legitimacy criteria. Thus, we have determined 

to list “coal refuse that has been recovered from legacy piles 

and processed in the same manner as currently-generated coal 

refuse” to the list of categorical non-waste fuels codified in 

Part 241.4(a) of today’s rulemaking. The rationale for adding 

this NHSM to the list of non-waste fuels follows the reasoning 

finalized in Part 241.4(b) in today’s rulemaking. We agree with 
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the reasoning of the comment and have, in fact, arrived at the 

very same reasoning in support of the categorical listing. 

Comment: One commenter argued that the EPA should treat legacy 

coal refuse as fuels, since they are chemically identical, if 

not superior fuels, to currently generated coal refuse that the 

Agency considers to be a traditional fuel, per the definition 

codified in 40 CFR 241.2. 

Response: Again, the EPA must explain a misunderstanding 

expressed by the commenter. The comment seems to consider that 

material is either a “fuel” or a “waste” and misses the point 

that the distinction in this rulemaking is between a “product” 

and a “waste” fuel. Fuels may be wastes. The point is that the 

coal that has been abandoned in piles is a waste. However, the 

EPA has determined that once processed that coal is either 

identical (or maybe even superior) to currently mined materials 

that would have become refuse in the past. 

The EPA agrees with, and has adopted, the same reasoning 

expressed by the commenter that the processed material is a 

product fuel. The disagreement between the EPA and the comment 

is the status of the legacy piles and the nomenclature of the 

coal finally burned. The coal is a processed fuel product, not a 

traditional fuel. 
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Comment: One commenter stated that there are “other relevant 

factors” that the EPA should consider when determining whether 

coal refuse from legacy piles should be categorically listed as 

a non-waste fuel. Specifically, the commenter believes that the 

EPA should consider the “overwhelming resultant environmental 

improvements” associated with the cleanup of abandoned coal 

refuse piles, including the reduction of fire hazards and 

contaminant, siltation, and solids releases into the 

environment, as an “other relevant factor” as it considers 

listing legacy coal refuse as a non-waste fuel in Part 241.4. 

Response: The EPA’s decision to include processed legacy coal 

refuse to the list of non-waste fuels in Part 241.4(a) was based 

on the fact that such materials meet the definition of 

processing and the legitimacy criteria. We do not need to 

balance “other relevant factors” in making this determination, 

as would be appropriate under an analysis conducted under 

section 241.4(b)(5)(ii). 

Comment: The EPA received a few comments regarding the specific 

wording of how coal refuse recovered from legacy piles should be 

identified and described in part 241.4(a) should the Agency 

determine to categorically list this NHSM pursuant to part 

241.4(a). One commenter suggested inserting the following text 

as a subsection within Part 241.4(a): “Coal refuse that does not 
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constitute currently-generated coal refuse, but that is 

processed in the same manner as currently-generated coal 

refuse.” As previously discussed, another commenter stated that 

the term “post-processed” was vague and could be interpreted to 

require additional processing that would hinder the usage of 

legacy coal refuse piles. Still another commenter suggested 

referencing the Surface Mining Control and Reclamation Act of 

1977 (SMCRA) in a categorical non-waste determination for coal 

refuse, which would ensure that the coal refuse is a fuel and 

minimize overlapping regulatory jurisdiction that could evolve. 

Response: As discussed above, we have determined to list “coal 

refuse that has been recovered from legacy piles and processed 

in the same manner as currently-generated coal refuse” to the 

list of categorical non-waste fuels, as codified in Part 

241.4(a) of today’s rulemaking. We believe this language 

accurately captures the scope of materials at issue and what 

must occur for the material to be categorically characterized as 

a non-waste fuel. That is, this categorical listing only applies 

to coal refuse that has been discarded in the first instance in 

legacy piles, subsequently recovered or removed from the discard 

environment, and subjected to the same processes and operations 
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as currently generated coal refuse.112 Further, this language 

should alleviate any concerns that the term “post-processed” is 

vague, since that term is not being used within this provision 

as finalized today. 

We do not agree with the comments that a categorical 

listing for legacy refuse should specifically reference SMCRA. 

As we noted in the preamble to the 2011 NHSM final rule, while 

the EPA recognizes that SMCRA is concerned with the management 

and removal of coal refuse piles at mining sites, SMCRA does not 

address the issue of “discard,” which is critical to the 

definition of solid waste under RCRA.113 Thus, a specific 

reference to SMCRA would be inappropriate as well as confusing. 

Further, we believe that a specific reference to SMCRA would be 

in fact more burdensome than the language of the categorical 

listing being codified today, which simply states that legacy 

coal refuse must be processed in the same manner as currentlygenerated coal refuse, regardless of whether such processing is 

done pursuant to SMCRA. 

c. Manure

 

112 We note that it would not be appropriate to include currently 

generated coal refuse within this categorical non-waste 

determination, as we have previously determined and continue to 

believe that currently generated coal refuse is a traditional 

fuel. 

113 See 76 FR 15510 
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 In the 2011 NHSM final rule, the EPA stated that based on 

the information provided, we could not make a blanket 

determination that all manure is a traditional fuel or that it 

is a solid waste. However, upon reviewing the few comments and 

data received, we concluded that animal manure that is used as a 

fuel “as generated” does not satisfy the legitimacy criteria, 

and thus, if combusted “as generated,” would be a solid waste.114 

However, the Agency also noted that there were circumstances 

where manure would not be considered a solid waste when burned 

as a fuel for energy recovery, specifically: (1) when the manure 

remained within the control of the generator and met the 

legitimacy criteria; (2) when the manure was sufficiently 

processed (e.g., via anaerobic digestion or gasification 

processes) and the resulting material met the legitimacy 

criteria; and (3) when a facility received a determination from 

the Agency pursuant to 241.3(c) stating that its manure was a 

non-waste when used as a fuel. For further discussion regarding 

our characterization of manure, see the preamble to the 2011 

NHSM final rule (76 FR 15479-15482). 

 In the December 2011 proposed rule, the Agency noted that 

some parties have identified the potential of manure to not be 

considered a solid waste. We, therefore, invited parties to 

 

114 See 76 FR 15480. 
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present information, including data demonstrating that manure is 

not discarded either through the existing non-waste petition 

process or the proposed categorical determination process.115 The 

Agency received no information or data that would allow it to 

consider proposing to list manure categorically as a non-waste 

fuel.116 Therefore, we are not taking any action in the 

rulemaking with respect to manure. However, the Agency did 

receive several comments from one commenter, which we will 

respond to below. 

Comment: The commenter states that dried animal manure should be 

included as a non-waste with the other fuels in 40 CFR 241.4(a). 

The commenter contends that there is no evidence that any animal 

manure is discarded, let alone sent to landfills. Manure is 

generally used as fertilizer on fields, although an important 

secondary purpose is for energy recovery/generation. In 

addition, the commenter states there are several known instances 

of additional plans for animal manure energy projects that are 

 

115 See 76 FR 80472.

116 In the preamble to the proposed rule, the Agency indicated 

the type of information and data that should be submitted to 

categorically list manure as a non-waste fuel. Specifically: : 

(1) the extent that use of the NHSM has been integrally tied to 

the industrial production process—information can include 

combustor design specifications, the extent that the use of the 

material is integrated across the industry, and the extent that 

use of the NHSM is essential to the industrial process and/or 

(2) the extent that the NHSM is functionally the same as the 

comparable traditional fuel and (3) other relevant factors. 
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designed specifically to recover energy, including government 

funded projects. 

The commenter notes that after drying, animal manure has a 

meaningful Btu value equal to or above that of other biomass that 

the EPA has determined to be a non-waste fuel (e.g., bagasse). 

The commenter also notes that there are contracts in place for 

livestock and poultry producers to supply manure to the combustor. 

Regarding contaminants in manure, the commenter states that 

the amount of contaminants is limited because the vast majority 

of applicable contaminants are directly related to the 

contaminants contained in the biomass consumed by the animals. 

The EPA has not presented any evidence that facilities are 

combusting manure in order to discard chlorine or nitrogen, the 

two contaminants identified by the EPA. These concentrated 

contaminants are no different than what occurs in the production 

of “byproducts of ethanol natural fermentation processes,” which 

the EPA is now proposing to include in the definition of “clean 

cellulosic biomass.” Based on a “balancing of the legitimacy 

criteria and other such relevant factors,” the EPA‘s new 

standard, animal manure should be included in the 40 CFR 

241.4(a) fuels list, along with resinated woods and scrap tires. 

Response: We disagree with the commenter on several points and 

do not believe that the case has been made to include animal 
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manure as a categorical non-waste fuel in 40 CFR 241.4(a). 

First, in the 2011 NHSM final rule, we previously determined 

that animal manure that is used as fuel, “as generated,” would 

not satisfy the legitimacy criteria. This conclusion was based 

on the fact that such material likely would not satisfy the 

meaningful heating value and contaminant legitimacy criterion.117 

Thus, we believe that the burning of such materials (as 

generated) would not be legitimate and would be seen as burning 

for discard. Further, the Agency has never stated that a NHSM, 

including animal manure, has to be landfilled in order to be 

discarded, as the commenter implies. Regarding the use of manure 

as fertilizer, we have been clear that this rulemaking does not 

address that secondary use. The 2011 NHSM final rule states, “We 

recognize that manure may also be beneficially used in other end 

uses, such as a fertilizer... EPA is not making any determination 

whether non-hazardous secondary materials are or are not solid 

wastes for other possible beneficial end uses. Such beneficial 

use determinations are generally made by the states for these 

other beneficial uses, and EPA will continue to look to the 

states to make such determinations.”118

 The commenter notes additional plans for animal manure 

 

117 See 76 FR 15480-15481. 

118 76 FR 15482.
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energy projects; however the fact that there are plans for 

future projects does not support a categorical non-waste 

determination today. As the EPA has acknowledged, facilities may 

be able to demonstrate that they satisfy the legitimacy 

criteria, either through a self-determination if the manure 

remains within the control of the generator or through the part 

241.3(c) non-waste determination petition process. Thus, any 

future energy project using animal manure as fuel could utilize 

either of these options for determining that the manure is a 

non-waste fuel, as appropriate. 

 Regarding the commenter’s points related to meaningful 

heating value of dried manure, the fact that dried manure may 

have a greater Btu value than bagasse is not directly on point. 

To demonstrate that a NHSM has meaningful heating value when 

used as a fuel, a facility does not compare relative Btu/lb of 

the NHSM against other traditional fuels, which themselves have 

a wide range of heating values. Rather, consistent with other 

EPA rulemakings, we have established 5,000 Btu/lb as a benchmark 

for demonstrating that a NHSM has meaningful heating value. 

Thus, to meet the meaningful heating value legitimacy criterion, 

the material would need to meet an “as fired” heating value of 

5,000 Btu/lb, or if lower than 5,000 Btu/lb, as fired, a person 

would need to demonstrate that the energy recovery unit can 
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cost effectively recover meaningful energy from the nonhazardous secondary material used as a fuel.119 We also note that 

the EPA did not reopen the meaningful heating value for fuels, 

as codified in 40 CFR part 241.3(d)(1)(ii), in the December 23, 

2011 proposed rule. Thus, in order to meet this criterion, the 

dried manure would need to meet an “as fired” heating value of 

5,000 Btu/lb, or if lower than 5,000 Btu/lb, the facility would 

need to demonstrate that the energy recovery unit can cost 

effectively recover meaningful energy from use of manure as a 

fuel. 

 Regarding the commenter’s statement regarding contracts 

between livestock and poultry producers and combustors, first we 

would note that no information has been provided to indicate who 

has entered such contracts or how many such contracts there are 

to consider this factor. However, as we have stated elsewhere in 

this preamble, contractual arrangements can be used as evidence 

that the material is managed as a valuable commodity and that 

discard is not occurring when a material is transferred beyond 

the control of the generator. However, the fact that there is a 

contractual relationship by itself is not dispositive that a 

material is not a waste, as there are contracts between parties 

to remove and dispose of wastes. 

 

119 See 76 FR 15541. 
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 We also believe that the commenter’s statements that the 

concentrated levels of contaminants is no different than what 

occurs in the production of “byproducts of ethanol natural 

fermentation processes” is not supported by any information or 

data. That is, other than the general statement, the commenter 

has not provided contaminant data, for either animal manure or 

byproducts of ethanol natural fermentation processes, for the 

Agency to analyze and compare. 

 Thus, we have determined based on the lack of any 

information or data that animal manure should not be listed as a 

categorical non-waste fuel in part 241.4(a). 

Comment: In the event that the Agency does not list animal 

manure as a categorical non-waste fuel, the EPA could 

alternatively decide that processing of animal manure by drying, 

constitutes “sufficient processing,” such that previously 

discarded manure could be considered recovered for energy 

recovery, just like scrap tires could be processed and burned as 

a non-waste. 

Response: In the December 23, 2011 proposal, the Agency did not 

solicit comment on the definition of “processing,” as codified 

in 40 CFR part 241.2. Thus, this comment is beyond the scope of 

the rulemaking and will not be addressed in today’s final 

action. 
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6. Streamlining of the 40 CFR 241.3(c) Non-Waste Determination 

Petition Process

 In the proposed rule, the EPA asked for comments on 

streamlining or other improvements to the existing provision for 

non-waste determinations codified at 40 CFR 241.3(c). 

 The Agency requested comment on whether the EPA’s grant of 

the petition should apply as of the date that the petition was 

submitted to the Agency.120 The Agency also requested additional 

comment on whether any other changes could be made to the nonwaste determination petition in order to streamline the process, 

while at the same time provide the EPA with the opportunity to 

ensure that such NHSMs are not being discarded. For example, the 

EPA requested comment on whether public comment should be sought 

on each individual petition.121 

Comment: Concerning the request for comment regarding when a 

petition determination would apply, the Agency received several 

comments. Specifically, the Agency requested comment on whether 

the EPA’s grant of the petition should apply as of the date that 

the petition was submitted to the Agency. Commenters agreed that 

a non-waste determination under 40 CFR 241.3(c) should be 

retroactively applied to the date the petition was submitted. 

 

120 See 76 FR 80473. 

121 See 76 FR 80474.
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 Commenters were concerned about the timeliness of the EPA’s 

decision on these determinations and on the uncertainty 

surrounding the usage of the NHSMs while a non-waste 

determination petition is pending. The commenters argue that if 

a NHSM is determined to be non-waste, the combusted NHSM in 

question was also non-waste prior to the determination. 

Response: The Agency understands the interests of petitioners 

awaiting an Agency decision on the status of materials, while a 

40 CFR 241.3(c) petition is being considered. In order to lessen 

the uncertainty surrounding the regulatory status of a 

particular material, the Agency will utilize the date the 

petition was submitted as the date that the combusted materials 

will be considered a non-waste if the Agency grants the 

petition. 

Comment: Many commenters indicated concern that the petition 

process could take excessive time for the Agency to reach a 

decision. They requested self-imposed timeframes for the EPA’s 

granting/denying requests and a shorter length of time for the 

notices to be open for public comment (or omit it altogether). 

The combustors stated they need quick decisions in order to 

comply with the CAA regulations and to make efficient business 

decisions. 
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Response: The Agency considered the commenters suggestion, but 

decided not to impose a deadline on its decision because there 

are many factors beyond its control. 

 In regard to the comment on reducing the time the petition 

application is open for public comment, the Agency decided that 

the comment period shall remain at 30 days, but the regulatory 

text is changed from “at least 30 days" to “30 days” in order to 

promote clarity, while affording an opportunity for public 

comment. 

Comment: One commenter strongly encouraged the Agency to develop 

and deploy an on-line form to identify materials for non-waste 

determinations. Commenters also noted that the EPA should 

provide more detailed information about how the determinations 

are made (particularly for the comparable contaminant 

determinations). 

Response: The Agency will consider the development of a form to 

identify the specific information needed to determine whether a 

NHSM meets the legitimacy criteria and other provisions. If the 

Agency develops such a form, it would be made available on the 

NHSM web site. Please note that traditional fuel data (including 

tables for traditional contaminants) are available to the 

public, which they may find useful in assessing the contaminant 

legitimacy criteria. Refer to those tables in “Contaminant 
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Concentrations in Traditional Fuels: Tables for Comparison” 

currently posted on the NHSM web site at 

http://www.epa.gov/osw/nonhaz/define/index.htm. That document 

will aid in comparing the concentration of contaminants in their 

NHSMs to concentration of contaminants in traditional fuels. In 

addition, rule clarification letters and petition findings are 

also posted on the website when finalized. 

Comment: A commenter suggested that the non-waste petition 

process should allow for “balancing” of legitimacy criteria 

similar to that included for categorical determinations in 40 

CFR part 241.4. 

Response: Under 40 CFR 241.4 of the proposed regulation, the EPA 

can balance the legitimacy criteria with other relevant factors 

in making categorical non-waste determinations. As the commenter 

points out, we have not discussed the applicability for similar 

balancing under 40 CFR 241.3 non-waste determination petitions. 

The EPA distinguished between 40 CFR 241.3 and 40 CFR 241.4 

because in the latter, the EPA makes the determination based on 

its review and analysis of industry-wide data and other factors, 

as opposed to a specific site. However, the EPA recognizes the 

points the commenter raises and will consider whether such 

modifications may be appropriate. 
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Comment: Several commenters were interested in features that 

streamline and add flexibility to the administrative petition 

process, particularly in the situation where a petition can 

apply to multiple combustors. 

 One commenter noted that any interested person – including 

forest owners – should be able to initiate the petition process, 

not just combustors. The petitions should be allowed for entire 

classes of a NHSM rather than requiring a case-by-case analysis. 

These clarifications will encourage all members in the biomass 

supply chain to promote their products and co-products as clean, 

renewable fuels and promote the development of new markets for 

biomass materials. Other commenters also stressed the need for 

the EPA to clarify that the petition can apply to more than one 

combustor so that redundant petitions do not need to be filed in 

every region. 

 A commenter also stated that the benefits from petitions 

could be achieved more efficiently if the regulatory language 

was changed to allow for nation-wide petitions under 40 CFR 

241.3(c) for classes of combustion units rather than requiring 

separate petitions for each EPA region. 

Response: The Agency agrees with the commenters that the process 

should accommodate for petition applications from third party 

producers of a NHSM that can be used as a non-waste NHSM fuel at 
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many combustion units instead of just accepting petitions from 

individual combustors or combustors within the control of one 

EPA region. This can make for a more streamlined and efficient 

process. Therefore, the regulatory provision at 40 CFR 241.3(c) 

has been modified to allow for the petition to be sent to the 

Assistant Administrator for the Office of Solid Waste and 

Emergency Response instead of each Regional Administrator if the 

petition covers more than one EPA Region. This is at the option 

of the petitioner. The Assistant Administrator for the Office of 

Solid Waste and Emergency Response would be responsible for the 

EPA’s administrative process in order to finalize the petition 

decision under 40 CFR 241.3(c) and the regulatory language has 

been modified accordingly. 

 Finally, as noted in the 2011 NHSM final rulemaking, 

states, or private entities, can submit non-waste determination 

petitions to the EPA on behalf of petitioners. They can petition 

for a single combustor or a class of combustors (e.g., a 

specific usage of a nonhazardous secondary material in a 

particular state). Therefore, in regard to the comment on 

nationwide petitions for classes of combustion units, the 

petition process accommodates for these classes of combustion 

units. This assumes that the petition identifies all of the 

specific NHSMs that the classes of combustion units use as fuel 
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(that are applicable to a 40 CFR 241.3(c) petition) and gives 

the information necessary to meet the legitimacy criteria and 

other requirements. 

 Note that if a petition covers multiple facilities in a 

single region, the petition should be sent to the Regional 

Administrator for that Region, not to the Assistant 

Administrator for the Office of Solid Waste and Emergency 

Response. 

Comment: Several commenters argued that the 40 CFR 241.3(c) 

petitions should not require public comment for each individual 

petition. 

 One commenter stated that “the administrative petition 

process could be further streamlined by not seeking public 

comment on every individual petition. By filing an 

administrative petition, a petitioner is not seeking to change 

the EPA’s regulatory program or create new legal rights or 

obligations. Instead, the administrative petition process 

provides an opportunity for a petitioner to obtain in advance 

[A]gency concurrence, based on sound science, with respect to 

the classification of a particular feedstock under existing 

regulations. In this respect, the administrative petition 

process differs from the categorical non-waste 

determination...where EPA makes changes to the regulatory status 
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of certain non-hazardous secondary materials that are reflected 

in the Code of Federal Regulations. Because the public – through 

this rulemaking process – has an opportunity to provide input on 

EPA’s regulations, there is no need to provide a second 

opportunity for public comment when those regulations are 

applied by the EPA in specific contexts through the 

administrative petition process.” 

 In addition, other commenters indicated that public notice 

and comment is not necessary, since the NHSM rulemaking process 

has already taken comment on the methodology, in addition to 

other rationale. In particular, one commenter stated, 

“Streamlining could be further facilitated by recognizing that 

solicitation of public comment on each individual application 

would be redundant and unnecessary given the public’s ample 

opportunity during this rulemaking to comment on the evaluation 

criteria that will govern non-waste determination petitions.” 

Another commenter stated, “The reason for public participation 

in the hazardous waste petition process is that the materials 

subject to the petition are to be removed from the hazardous 

waste regulatory program. In the NHSM world, the secondary 

materials subject to the petition are merely obtaining clarity 

about regulatory status – they are not seeking a change in 
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regulatory status. Therefore, the need for the full public 

participation process is not necessary or warranted.” 

Response: Although industry commenters argued that public 

participation is unnecessary, the EPA still believes that public 

participation is an important part of a transparent decision 

making process and values how it increases transparency. In the 

final rule, we will retain the public participation requirement 

in order to promote public awareness. 

7. Revised Introductory Text for 40 CFR 241.3(a)

As part of its discussion clarifying the non-waste 

determination petition processes, the EPA noted that it had 

examined a number of specific NHSMs and decided which were to be 

considered solid wastes based on the record available at the 

time the March 2011 final rule was issued.122 The rule itself had 

stated at 40 CFR 241.3(a) that secondary materials were solid 

wastes except for those described in section 241.3(b). 

Essentially, section 241.3(b) is the operative section that 

states what materials are not wastes. The purpose of the nonwaste determination petition process in section 241.3(c) and the 

new proposed petition process in section 241.4 is to allow 

various parties the opportunity to provide information and data 

so that the EPA could decide what other NHSMs are not solid 

 

122 See 76 FR 80473. 
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wastes. The preamble stated that the Agency proposed to amend 

section 241.3(a) to state that such secondary materials are 

“presumed to be” solid wastes except for those described in 

section 241.3(b) in order to better reflect the rulemaking 

record. 

Comment: No comment supported inclusion of the “presumed to be” 

language in the rule. 

Most of the comments on the language argue that it means that 

the EPA continues to improperly determine that certain NHSMs are 

presumptively wastes. Comments generally argue that the 

“presumed to be” language shows that the EPA, in spite of 

statements to the contrary, is continuing to make an 

inappropriate determination that NHSMs transferred to other 

parties are presumptively wastes until a combustor proves 

otherwise. According to comments, the use of the “presumed to 

be” language is a clear statement that the EPA is making the 

presumption. The addition of these words does not change the 

fact that, under the EPA’s regulatory framework, NHSMs are 

wastes until proven otherwise. 

Several comments, in fact, argued that to address the legal 

flaws in the proposal, the EPA should reverse the presumption 

and presume that NHSMs burned for energy recovery or used as an 
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ingredient is not for the purpose of disposal and, therefore, is 

not a waste. 

Response: The EPA is not addressing in this rulemaking the 

comment that the Agency has inappropriately made presumptions 

about whether materials are wastes. This issue has not been 

reopened. Instead, the Agency has only opened very specific 

issues on particular wastes. 

 In the December 2011 proposal at 76 FR 80473, the EPA 

referred to the March 2011 preamble in which the Agency stated 

that it has not “arbitrarily determined that secondary materials 

transferred between companies are wastes. Instead, the EPA has 

evaluated whether certain categories of materials are discarded 

or not. The Agency has not adopted the extremes of saying that 

all burning of secondary material, regardless of ultimate use, 

is waste treatment or that any secondary material that is 

recycled for legitimate fuel value is a commodity and not a 

waste. Wastes may have value, but are still wastes.” 76 FR 

15471. Further, the Agency stated that it “has examined a number 

of specific materials, recycled within the control of the 

generator and transferred to a third party for recycling, and 

determined whether they would be appropriately placed within the 

waste or non-waste categories.” Id. The EPA went on to examine a 

number of different categories of NHSMs used as fuels and 
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ingredients that was summarized in the Federal Register (76 FR 

15477-15520). The EPA cannot “reverse” a presumption that it 

never made to declare that materials burned for energy recovery 

are presumptively non-wastes. Further, it would be entirely 

improper for the Agency to do so. The EPA has evaluated specific 

groups of materials as to their waste status, while the comments 

regarding reversal of a purported presumption have only 

presented arguments “in broad abstraction, providing little 

detail about the many processes throughout the industry that 

generate residual material” that could be subject to this rule. 

Association of Battery Recyclers v. EPA, 208 F.3d 1047, 1056.123

Accordingly, the Agency stands on its March 2011 rulemaking 

record for the issues discussed in these comments. 

Comment: Comments objected that the change in word choice that 

materials are “presumed to be” solid wastes from the statement 

that that materials “are” solid wastes (except as otherwise 

provided in the regulation) still puts the burden to prove 

material is not a waste on persons who use NHSMs in combustion 

units. One comment, in particular, noted that there would be no 

practical effect of the new language even though it is viewed by 

 

123 Note how the April 4, 2012, letter from Timothy G. Hunt to 

James Berlow (a copy of which is in the docket for today’s 

rule), provided specific information on pulp and paper sludge 

where EPA added a categorical determination based on specific 

information provided by industry. 
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the EPA as an “optically less drastic stance.” That is, there 

would be no real leeway for a party in an enforcement proceeding 

to counter the EPA’s prosecution based on the fact that the 

secondary material in question is only “presumed to be” a waste, 

rather than the material “is” a waste. 

Response: The EPA has decided not to retain the “presumed to be” 

language, since it is unnecessary and does not actually reflect 

the rulemaking record. No comment argued in favor of it. In 

addition, there is no need to temper the existing language 

stating that a material is a solid waste if it does not fall 

within the section 241.3(b) categories or the non-waste 

determination processes. As noted in the previous response to 

comments regarding the Agency’s “presumption” of the waste 

status of materials, the Agency stands on its March 2011 

rulemaking record. 

E. Cost and Benefits of the Final Rule 

The RCRA aspects of this rule do not directly invoke any 

costs (excluding minor administrative burden/cost), or benefits. 

Any RCRA related costs to the regulated community, and 

corresponding benefits to human health and the environment, have 

been considered as part of the CISWI action, and the 

corresponding CISWI and Boiler MACT (area source and major 

source) final rules. As such, the Agency has not prepared a 
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separate cost-benefit assessment in support of this part of the 

final rule. Consequently, any potential costs or benefits, 

including impacts to small entities, indirectly associated with 

the RCRA aspects of this rule are addressed in the corresponding 

impact assessment prepared in support of the CISWI part of this 

action.

III. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and 

Executive Order 13563: Improving Regulation and Regulatory 

Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), 

this action is a “significant regulatory action” because it may 

raise novel legal or policy issues. Accordingly, the EPA 

submitted this action to the Office of Management and Budget 

(OMB) for review under Executive Order 12866 and 13563 (76 FR 

3821, January 21, 2011). Any changes made in response to OMB 

recommendations have been documented in the docket for this 

action. 

In addition, the EPA prepared an update to the Regulatory 

Impact Analysis (RIA) of the potential costs and benefits 

associated with this action. The RIA available in the docket 

describes in detail the empirical basis for the EPA’s 

assumptions and characterizes the various sources of 
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uncertainties affecting the estimates below and a memo documents 

the updates since the RIA was prepared. Table 9 of this preamble 

shows the results of the cost and benefits analysis for these 

final rules. 

Table 9. Summary of the Monetized Benefits, Social Costs and Net 

Benefits for the Final CISWI NSPS and EG in 2015 (Millions of 

2008$)1

3 percent Discount 

Rate 

7 percent Discount 

Rate 

Total Monetized 

Benefits2 $460 to $1,100 $420 to $1,100 

Total Social Costs3 $270 $270 

Net Benefits $190 to $730 $150 to $630 

Non-monetized Benefits 

Health effects from exposure to HAP (790 

tons of HCl, 2.6 tons of lead, 1.8 tons 

of cadmium, 740 pounds of mercury, and 93 

grams of dioxins/furans) 

Health effects from exposure to criteria 

pollutants (23,000 tons of CO, 7,300 tons 

of SO2, 7,200 tons of NO2, and secondary 

formation of ozone) 

Ecosystem effects 

Visibility impairment 

1 All estimates are for the implementation year (2015), and are 

rounded to two significant figures. These results reflect the 

lowest cost disposal assumption. 

2

 The total monetized benefits reflect the human health benefits 

associated with reducing exposure to PM2.5 through reductions of 

PM2.5 precursors such as directly emitted particles, SO2, and 

NOx. It is important to note that the monetized benefits 

include many but not all health effects associated with PM2.5

exposure. Monetized benefits are shown as a range from Pope et 

al. (2002) to Laden et al. (2006). These models assume that all 

fine particles, regardless of their chemical composition, are 

equally potent in causing premature mortality because there is 

no clear scientific evidence that would support the development 

of differential effects estimates by particle type. These 
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estimates include the energy disbenefits valued at $3.8 million 

(using the 3 percent discount rate), which do not change the 

rounded totals. CO2-related disbenefits were calculated using 

the “social cost of carbon”, which is discussed further in the 

RIA.

3

 The methodology used to estimate social costs for one year in 

the multimarket model using surplus changes results in the same 

social costs for both discount rates. 

B. Paperwork Reduction Act

This action does not impose any new information collection 

burden. This action is believed to result in no changes to the 

information collection requirements of the final NHSM rule and 

will have no impact on the information collection estimate of 

project cost and hour burden made and approved by OMB. Due to 

changes in the CISWI inventory and monitoring requirements of 

the CISWI rule, the information collection estimate of project 

cost and hour burden have been revised. Therefore, only the 

CISWI ICR has been revised. The OMB control numbers for the 

EPA’s regulations in 40 CFR are listed in 40 CFR part 9. 

However, the Office of Management and Budget (OMB) has 

previously approved the information collection requirements 

contained in the existing CISWI and NHSM124 regulations (40 CFR 

part 60, subparts CCCC and DDDD, and 40 CFR part 241) under the 

provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et

 

124 Identification of Non-Hazardous Secondary Materials That Are Solid Waste, Final 

Rule. March 11, 2011.
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seq., and has been assigned EPA ICR number 2384.04 for subpart 

CCCC, 40 CFR part 60, EPA ICR number 2385.04 for subpart DDDD, 

40 CFR part 60, and EPA ICR number 2382.04 for 40 CFR part 241. 

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an 

agency to prepare a regulatory flexibility analysis of any rule 

subject to notice and comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless the 

agency certifies that the rule will not have a significant 

economic impact on a substantial number of small entities. Small 

entities include small businesses, small organizations and small 

governmental jurisdictions. 

For purposes of assessing the impacts of today’s rule on 

small entities, small entity is defined as: (1) a small business 

as defined by the Small Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a city, county, town, 

school district or special district with a population of less 

than 50,000; or (3) a small organization that is any not-forprofit enterprise that is independently owned and operated and 

is not dominant in its field. 

After considering the economic impacts of today’s final 

rule on small entities, I certify that this action will not have 
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a significant economic impact on a substantial number of small 

entities. This final rule will not impose any new requirements 

on any entities because it does not impose any additional 

regulatory requirements relative to those specified in the March 

2011 final CISWI and NHSM rules. The March 2011 final CISWI and 

NHSM rules were both certified as not having a significant 

economic impact on a substantial number of small entities. In 

this final action, there are three fewer small entities in the 

CISWI than in the March 2011 final CISWI rule, as discussed in 

the “Regulatory Impact Results for the Reconsideration Final for 

Standards of Performance for New Stationary Sources and Emission 

Guidelines for Existing Sources: Commercial and Industrial Solid 

Waste Incineration Units” memorandum in the CISWI docket. 

D. Unfunded Mandates Reform Act

This action does not contain a federal mandate that may 

result in expenditures of $100 million or more for state, local 

and tribal governments, in the aggregate or the private sector 

in any one year. This rule finalizes amendments to the final 

CISWI rule provisions and technical clarifications to the final 

NHSM rule. Thus, this rule is not subject to the requirements of 

sections 202 or 205 of UMRA. However, the March 2011 final CISWI 

rule contains a federal mandate that may result in expenditures 

of $100 million or more for state, local and tribal governments, 
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in the aggregate, or the private sector in any 1 year. 

Accordingly, we have prepared under section 202 of the UMRA a 

written statement, which is summarized in the preamble to the 

final CISWI rule (76 FR 15747). 

This rule is also not subject to the requirements of 

section 203 of UMRA because it contains no regulatory 

requirements that might significantly or uniquely affect small 

governments. 

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will 

not have substantial direct effects on the states, on the 

relationship between the national government and the states, or 

on the distribution of power and responsibilities among the 

various levels of government, as specified in Executive Order 

13132. This final rule will not impose direct compliance costs 

on state or local governments and will not preempt state law. 

Thus, Executive Order 13132 does not apply to this action. 

F. Executive Order 13175: Consultation and Coordination with 

Indian Tribal Governments

This action does not have tribal implications, as specified 

in Executive Order 13175, (65 FR 67249, November 9, 2000). The 

EPA is not aware of any CISWI in Indian country or owned or 

operated by Indian tribal governments. The CISWI aspects of this 
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rule may, however, invoke minor indirect tribal implications to 

the extent that entities generating solid wastes on tribal lands 

could be affected. However, any indirect NHSM impacts that may 

occur as a result of the CISWI action are expected to be 

negligible due to the very limited focus of the CISWI part or 

this rule. Thus, Executive Order 13175 does not apply to this 

action. 

G. Executive Order 13045: Protection of Children from 

Environmental Health Risks and Safety Risks

The EPA interprets Executive Order 13045 (62 FR 19885, 

April 23, 1997) as applying to those regulatory actions that 

concern health or safety risks, such that the analysis required 

under section 5-501 of the Executive Order has the potential to 

influence the regulation. This action is not subject to 

Executive Order 13045 because it is based solely on technology 

performance and technical corrections. 

H. Executive Order 13211: Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 

28355, May 22, 2001), because it is not a significant regulatory 

action under Executive Order 12866.

I. National Technology Transfer and Advancement Act
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Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) 

(15 U.S.C. 272 note) directs the EPA to use voluntary consensus 

standards in its regulatory activities, unless to do so would be 

inconsistent with applicable law or otherwise impractical. 

Voluntary consensus standards are technical standards (e.g., 

materials specifications, test methods, sampling procedures, and 

business practices) that are developed or adopted by voluntary 

consensus standards bodies. The NTTAA directs the EPA to provide 

Congress, through OMB, explanations when the agency decides not 

use available and applicable voluntary consensus standards. 

This action does not involve any revisions to the technical 

standards or test methods required in the final CISWI rule. 

Therefore, the EPA did not reconsider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations

Executive Order 12898 (59 FR 7629, February 16, 1994) 

establishes federal executive policy on environmental justice. 

Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental 

justice part of their mission by identifying and addressing, as 
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appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies and activities 

on minority populations and low-income populations in the United 

States. 

The EPA has determined that this final rule will not have 

disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 

because it increases the level of environmental protection for 

all affected populations without having any disproportionately 

high and adverse human health or environmental effects on any 

population, including any minority or low-income population. The 

amendments do not relax the control measures on sources 

regulated by the CISWI rule, and, therefore, will not cause 

emissions increases from these sources. The March 2011 final 

CISWI rule will reduce emissions of all the listed HAP emitted 

from this source. Furthermore, the targeted revisions finalized 

in the NHSM section of this rule are designed to improve the 

management of these materials, thereby helping to further ensure 

against any disproportionately high and adverse human health or 

environmental effects on minority or low-income populations. 

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as 

added by the Small Business Regulatory Enforcement Fairness Act 
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of 1996, generally provides that before a rule may take effect, 

the agency promulgating the rule must submit a rule report, 

which includes a copy of the rule, to each House of the Congress 

and to the Comptroller General of the United States. The EPA 

will submit a report containing this rule and other required 

information to the U.S. Senate, the U.S. House of 

Representatives, and the Comptroller General of the United 

States prior to publication of the rule in the Federal Register. 

A Major rule cannot take effect until 60 days after it is 

published in the Federal Register. This action is not a “major 

rule” as defined by 5 U.S.C. 804(2). This rule will be effective 

[INSERT THE DATE 60 DAYS AFTER THE DATE OF PUBLICATION IN THE 

FEDERAL REGISTER].
Standards of Performance for New Stationary Sources and Emission 

Guidelines for Existing Sources: 

Commercial and Industrial Solid Waste Incineration Units 

Page 302 of 526 

List of Subjects 40 CFR Part 60 

Environmental protection, Administrative practice and 

procedure, Air pollution control, Hazardous substances. 

40 CFR Part 241 

Environmental protection, air pollution control, waste 

treatment and disposal. 

 

Dated: 

 

Lisa P. Jackson, 

Administrator. 
Page 303 of 526 

For the reasons stated in the preamble, Title 40, chapter 

I, of the Code of Federal Regulations is proposed to be amended 

as follows: 

PART 60—[AMENDED] 

1. The authority citation for part 60 continues to read 

as follows: 

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

2. Section 60.17 is amended by: 

a. Adding paragraph (a)(93). 

b. Revising paragraph (h)(4). 

c. Adding paragraph (o). 

§60.17 Incorporations by reference.

* * * * * 

(a) * * * 

(93) ASTM D6784-02 (Reapproved 2008) Standard Test Method 

for Elemental, Oxidized, Particle-Bound and Total Mercury in 

Flue Gas Generated from Coal-Fired Stationary Sources (Ontario 

Hydro Method), approved April 1, 2008, IBR approved for 

§§60.2165(j), 60.2730(j), tables 1, 5, 6 and 8 to subpart CCCC, 

and tables 2, 6, 7, and 9 to subpart DDDD, §§60.4900(b)(4)(v), 

60.5220(b)(4)(v), tables 1 and 2 to subpart LLLL, and tables 2 

and 3 to subpart MMMM. 

* * * * * 
Page 304 of 526 

(h) * * * 

(4) ANSI/ASME PTC 19.10–1981, Flue and Exhaust Gas Analyses 

[Part 10, Instruments and Apparatus], IBR approved for 

§60.56c(b)(4), §60.63(f)(2) and (f)(4), §60.106(e)(2), 

§§60.104a(d)(3), (d)(5), (d)(6), (h)(3), (h)(4), (h)(5), (i)(3), 

(i)(4), (i)(5), (j)(3), and (j)(4), §60.105a(d)(4), (f)(2), 

(f)(4), (g)(2), and (g)(4), §60.106a(a)(1)(iii), (a)(2)(iii), 

(a)(2)(v), (a)(2)(viii), (a)(3)(ii), and (a)(3)(v), and 

§60.107a(a)(1)(ii), (a)(1)(iv), (a)(2)(ii), (c)(2), (c)(4), and 

(d)(2), tables 1 and 3 of subpart EEEE, tables 2 and 4 of 

subpart FFFF, table 2 of subpart JJJJ, §§60.4415(a)(2) and 

(a)(3), 60.2145(s)(1)(i) and (ii), 60.2145(t)(1)(ii), 

60.2145(t)(5)(i), 60.2710(s)(1)(i) and (ii), 60.2710(t)(1)(ii), 

60.2710(t)(5)(i), 60.2710(w)(3), 60.2730(q)(3), 

60.4900(b)(4)(vii) and (viii), 60.4900(b)(5)(i), 

60.5220(b)(4)(vii) and (viii), 60.5220(b)(5)(i), tables 1 and 2 

to subpart LLLL, and tables 2 and 3 to subpart MMMM. 

* * * * * 

(o) The following material is available from the U.S. 

Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, 

Washington, DC 20460, (202) 272-0167, http://www.epa.gov. 

(1) Office of Air Quality Planning and Standards (OAQPS) 

Fabric Filter Bag Leak Detection Guidance, EPA–454/R–98–015, 
Page 305 of 526 

September 1997, IBR approved for §§60.2145(r)(2), 60.2710(r)(2), 

60.4905(b)(3)(i)(B), and 60.5225(b)(3)(i)(B). 

(2) [Reserved] 

3. Revise the heading for subpart CCCC to read as 

follows: 

Subpart CCCC-Standards of Performance for Commercial and 

Industrial Solid Waste Incineration Units 

* * * * * 

4. Section 60.2005 is revised to read as follows: 

§60.2005 When does this subpart become effective?

This subpart takes effect on [THE DATE 6 MONTHS AFTER 

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]. Some of 

the requirements in this subpart apply to planning the CISWI 

unit (i.e., the preconstruction requirements in §§60.2045 and 

60.2050). Other requirements such as the emission limitations 

and operating limits apply after the CISWI unit begins 

operation. 

5. Section 60.2015 is revised to read as follows: 

§60.2015 What is a new incineration unit?

(a) A new incineration unit is an incineration unit that 

meets any of the criteria specified in paragraph (a)(1) through 

(a)(2) of this section. 

(1) A CISWI unit that commenced construction after June 4, 

2010. 
Page 306 of 526 

(2) A CISWI unit that commenced reconstruction or 

modification after [THE DATE 6 MONTHS AFTER PUBLICATION OF THE 

FINAL RULE IN THE FEDERAL REGISTER]. 

(b) This subpart does not affect your CISWI unit if you 

make physical or operational changes to your incineration unit 

to comply with subpart DDDD of this part (Emission Guidelines 

and Compliance Times for Commercial and Industrial Solid Waste 

Incineration Units). Such changes do not qualify as 

reconstruction or modification under this subpart. 

6. Section 60.2020 is amended by: 

§60.2020 What combustion units are exempt from this subpart?

a. Revising the introductory text. 

b. Removing and reserving paragraph (b). 

c. Revising paragraph (c). 

d. Revising paragraphs (e)(3), (f)(3), (g), (m) and (n). 

e. Removing and reserving paragraphs (j), (k), and (l). 

f. Removing paragraph (o). 

§60.2020 What combustion units are exempt from this subpart?

This subpart exempts the types of units described in 

paragraphs (a), (c) through (i) and (n) of this section, but 

some units are required to provide notifications. Air curtain 

incinerators are exempt from the requirements in this subpart 

except for the provisions in §§60.2242, 60.2250, and 60.2260. 

* * * * * 
Page 307 of 526 

(b) [Reserved] 

(c) Municipal waste combustion units. Incineration units 

that are subject to subpart Ea of this part (Standards of 

Performance for Municipal Waste Combustors); subpart Eb of this 

part (Standards of Performance for Large Municipal Waste 

Combustors); subpart Cb of this part (Emission Guidelines and 

Compliance Time for Large Municipal Combustors); subpart AAAA of 

this part (Standards of Performance for Small Municipal Waste 

Combustion Units); or subpart BBBB of this part (Emission 

Guidelines for Small Municipal Waste Combustion Units). 

* * * * * 

(e) * * * 

(3) You submit a request to the Administrator for a 

determination that the qualifying cogeneration facility is 

combusting homogenous waste. The request must include 

information sufficient to document that the unit meets the 

criteria of the definition of a small power production facility 

and that the waste material the unit is proposed to burn is 

homogeneous. 

* * * * * 

(f) * * * 

(3) You submit a request to the Administrator for a 

determination that the qualifying cogeneration facility is 

combusting homogenous waste. The request must include 
Page 308 of 526 

information sufficient to document that the unit meets the 

criteria of the definition of a cogeneration facility and that 

the waste material the unit is combusting is homogeneous. 

(g) Hazardous waste combustion units. Units for which you 

are required to get a permit under section 3005 of the Solid 

Waste Disposal Act. 

* * * * * 

(j) [Reserved] 

(k) [Reserved] 

(l) [Reserved] 

(m) Sewage treatment plants. Incineration units regulated 

under subpart O of this part (Standards of Performance for 

Sewage Treatment Plants). 

(n) Sewage sludge incineration units. Incineration units 

combusting sewage sludge for the purpose of reducing the volume 

of the sewage sludge by removing combustible matter that are 

subject to subpart LLLL of this part (Standards of Performance 

for Sewage Sludge Incineration Units) or subpart MMMM of this 

part (Emission Guidelines for Sewage Sludge Incineration Units). 

7. Section 60.2025 is removed. 

8. Section 60.2030 is amended by: 

a. Revising paragraph (c) introductory text. 

b. Removing and reserving paragraph (c)(5). 

c. Adding paragraphs (c)(8) through (c)(10). 
Page 309 of 526 

§60.2030 Who implements and enforces this subpart?

* * * * * 

(c) The authorities that will not be delegated to state, 

local, or tribal agencies are specified in paragraphs (c)(1) 

through (4) and (c)(6) through (10) of this section. 

* * * * * 

(5) [Reserved] 

* * * * * 

(8) Approval of alternative opacity emission limits in 

§60.2105 under §60.11(e)(6) through (e)(8). 

(9) Performance test and data reduction waivers under 

§60.2125(j), 60.8(b)(4) and (5). 

(10) Determination of whether a qualifying small power 

production facility or cogeneration facility under §60.2020(e) 

or (f) is combusting homogenous waste. 

9. Section 60.2045 is revised to read as follows: 

(a) You must prepare a siting analysis if you plan to 

commence construction of an incinerator after December 1, 2000. 

(b) You must prepare a siting analysis for CISWI units that 

commenced construction after June 4, 2010, or that commenced 

reconstruction or modification after [THE DATE 6 MONTHS AFTER 

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER]. 

(c) You must prepare a siting analysis if you are required 

to submit an initial application for a construction permit under 
Page 310 of 526 

40 CFR part 51, subpart I, or 40 CFR part 52, as applicable, for 

the reconstruction or modification of your CISWI unit. 

* * * * * 

10. Section 60.2070 is amended by revising paragraph 

(c)(1)(vii) to read as follows: 

§60.2070 What are the operator training and qualification 

requirements?

* * * * * 

(c) * * * 

(1) * * * 

(vii) Actions to prevent and correct malfunctions or to 

prevent conditions that may lead to malfunctions. 

* * * * * 

11. Section 60.2085 is amended by revising paragraph (d) 

to read as follows: 

§60.2085 How do I maintain my operator qualification?

* * * * * 

(d) Prevention and correction of malfunctions or conditions 

that may lead to malfunction. 

* * * * * 

12. Section 60.2105 is revised to read as follows: 

§60.2105 What emission limitations must I meet and by when?

(a) You must meet the emission limitations for each CISWI 

unit, including bypass stack or vent, specified in table 1 of 
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this subpart or tables 5 through 8 of this subpart by the 

applicable date in §60.2140. You must be in compliance with the 

emission limitations of this subpart that apply to you at all 

times. 

(b) An incinerator unit that commenced construction after 

November 30, 1999, but no later than June 4, 2010, or that 

commenced reconstruction or modification on or after June 1, 

2001, but no later than [THE DATE 6 MONTHS AFTER PUBLICATION OF 

THE FINAL RULE IN THE FEDERAL REGISTER] must meet the more 

stringent emission limit for the respective pollutant in table 1 

of this subpart or table 6 of subpart DDDD. 

13. Section 60.2110 is amended by: 

a. Revising paragraph (a) introductory text. 

b. Revising paragraphs (a)(2) through (a)(4). 

c. Adding paragraphs (d) through (h). 

§60.2110 What operating limits must I meet and by when?

(a) If you use a wet scrubber(s) to comply with the 

emission limitations, you must establish operating limits for up 

to four operating parameters (as specified in table 2 of this 

subpart) as described in paragraphs (a)(1) through (4) of this 

section during the initial performance test. 

* * * * * 

(2) Minimum pressure drop across the wet particulate matter 

scrubber, which is calculated as the lowest 1-hour average 
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pressure drop across the wet scrubber measured during the most 

recent performance test demonstrating compliance with the 

particulate matter emission limitations; or minimum amperage to 

the fan for the wet scrubber, which is calculated as the lowest 

1-hour average amperage to the wet scrubber measured during the 

most recent performance test demonstrating compliance with the 

particulate matter emission limitations. 

(3) Minimum scrubber liquid flow rate, which is calculated 

as the lowest 1-hour average liquid flow rate at the inlet to 

the wet acid gas or particulate matter scrubber measured during 

the most recent performance test demonstrating compliance with 

all applicable emission limitations. 

(4) Minimum scrubber liquor pH, which is calculated as the 

lowest 1-hour average liquor pH at the inlet to the wet acid gas 

scrubber measured during the most recent performance test 

demonstrating compliance with the hydrogen chloride emission 

limitation. 

* * * * * 

(d) If you use an electrostatic precipitator to comply with 

the emission limitations, you must measure the (secondary) 

voltage and amperage of the electrostatic precipitator 

collection plates during the particulate matter performance 

test. Calculate the average electric power value (secondary 

voltage x secondary current = secondary electric power) for each 
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test run. The operating limit for the electrostatic precipitator 

is calculated as the lowest 1-hour average secondary electric 

power measured during the most recent performance test 

demonstrating compliance with the particulate matter emission 

limitations. 

(e) If you use activated carbon sorbent injection to comply 

with the emission limitations, you must measure the sorbent flow 

rate during the performance testing. The operating limit for the 

carbon sorbent injection is calculated as the lowest 1-hour 

average sorbent flow rate measured during the most recent 

performance test demonstrating compliance with the mercury 

emission limitations. 

(f) If you use selective noncatalytic reduction to comply 

with the emission limitations, you must measure the charge rate, 

the secondary chamber temperature (if applicable to your CISWI 

unit), and the reagent flow rate during the nitrogen oxides 

performance testing. The operating limits for the selective 

noncatalytic reduction are calculated as the highest 1-hour 

average charge rate, secondary chamber temperature, and reagent 

flow rate measured during the most recent performance test 

demonstrating compliance with the nitrogen oxides emission 

limitations. 

(g) If you use a dry scrubber to comply with the emission 

limitations, you must measure the injection rate of each sorbent 
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during the performance testing. The operating limit for the 

injection rate of each sorbent is calculated as the lowest 1-

hour average injection rate or each sorbent measured during the 

most recent performance test demonstrating compliance with the 

hydrogen chloride emission limitations. 

(h) If you do not use a wet scrubber, electrostatic 

precipitator, or fabric filter to comply with the emission 

limitations, and if you do not determine compliance with your 

particulate matter emission limitation with a particulate matter 

CEMS, you must maintain opacity to less than or equal to 10 

percent opacity (1-hour block average). 

14. Section 60.2115 is revised to read as follows: 

§60.2115 What if I do not use a wet scrubber, fabric filter, 

activated carbon injection, selective noncatalytic reduction, an 

electrostatic precipitator, or a dry scrubber to comply with the 

emission limitations?

If you use an air pollution control device other than a wet 

scrubber, activated carbon injection, selective noncatalytic 

reduction, fabric filter, an electrostatic precipitator, or a 

dry scrubber or limit emissions in some other manner, including 

material balances, to comply with the emission limitations under 

§60.2105, you must petition the EPA Administrator for specific 

operating limits to be established during the initial 

performance test and continuously monitored thereafter. You must 
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submit the petition at least sixty days before the performance 

test is scheduled to begin. Your petition must include the five 

items listed in paragraphs (a) through (e) of this section. 

(a) Identification of the specific parameters you propose 

to use as additional operating limits. 

(b) A discussion of the relationship between these 

parameters and emissions of regulated pollutants, identifying 

how emissions of regulated pollutants change with changes in 

these parameters and how limits on these parameters will serve 

to limit emissions of regulated pollutants. 

(c) A discussion of how you will establish the upper and/or 

lower values for these parameters which will establish the 

operating limits on these parameters. 

(d) A discussion identifying the methods you will use to 

measure and the instruments you will use to monitor these 

parameters, as well as the relative accuracy and precision of 

these methods and instruments. 

(e) A discussion identifying the frequency and methods for 

recalibrating the instruments you will use for monitoring these 

parameters. 

15. Section 60.2120 is revised to read as follows: 

§60.2120 Affirmative Defense for Violation of Emission Standards 

During Malfunction.
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In response to an action to enforce the standards set forth 

in paragraph §60.2105, you may assert an affirmative defense to 

a claim for civil penalties for exceedances of such standards 

that are caused by malfunction, as defined at 40 CFR 60.2. 

Appropriate penalties may be assessed; however, if you fail to 

meet your burden of proving all of the requirements in the 

affirmative defense, the affirmative defense shall not be 

available for claims for injunctive relief. 

(a) To establish the affirmative defense in any action to 

enforce such a standard, you must timely meet the reporting 

requirements in paragraph (b) of this section, and must prove by 

a preponderance of evidence that: 

(1) The violation: 

(i) Was caused by a sudden, infrequent, and unavoidable 

failure of air pollution control equipment, process equipment, 

or a process to operate in a normal or usual manner; and 

(ii) Could not have been prevented through careful 

planning, proper design or better operation and maintenance 

practices; and 

(iii) Did not stem from any activity or event that could 

have been foreseen and avoided, or planned for; and 

(iv) Was not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; and 
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(2) Repairs were made as expeditiously as possible when a 

violation occurred. Off-shift and overtime labor were used, to 

the extent practicable to make these repairs; and 

(3) The frequency, amount and duration of the violation 

(including any bypass) were minimized to the maximum extent 

practicable; and 

(4) If the violation resulted from a bypass of control 

equipment or a process, then the bypass was unavoidable to 

prevent loss of life, personal injury, or severe property 

damage; and 

(5) All possible steps were taken to minimize the impact of 

the violation on ambient air quality, the environment, and human 

health; and 

(6) All emissions monitoring and control systems were kept 

in operation if at all possible, consistent with safety and good 

air pollution control practices; and 

(7) All of the actions in response to the violation were 

documented by properly signed, contemporaneous operating logs; 

and 

(8) At all times, the affected facility was operated in a 

manner consistent with good practices for minimizing emissions; 

and 

(9) A written root cause analysis has been prepared, the 

purpose of which is to determine, correct, and eliminate the 
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primary causes of the malfunction and the violation resulting 

from the malfunction event at issue. The analysis shall also 

specify, using best monitoring methods and engineering judgment, 

the amount of any emissions that were the result of the 

malfunction. 

(b) Report. The owner or operator seeking to assert an 

affirmative defense shall submit a written report to the 

Administrator with all necessary supporting documentation that 

it has met the requirements set forth in paragraph (a) of this 

section. This affirmative defense report shall be included in 

the first periodic compliance, deviation report or excess 

emission report otherwise required after the initial occurrence 

of the violation of the relevant standard (which may be the end 

of any applicable averaging period). If such compliance, 

deviation report or excess emission report is due less than 45 

days after the initial occurrence of the violation, the 

affirmative defense report may be included in the second 

compliance, deviation report or excess emission report due after 

the initial occurrence of the violation of the relevant 

standard. 

16. Section 60.2125 is amended by: 

a. Revising paragraph (c). 

b. Revising paragraphs (g)(1) and (g)(2). 

c. Adding paragraphs (h) and (i) to read as follows: 
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§60.2125 How do I conduct the initial and annual performance 

test?

* * * * * 

(c) All performance tests must be conducted using the 

minimum run duration specified in table 1 of this subpart or 

tables 5 through 8 of this subpart. 

* * * * * 

(g) * * * 

(1) Measure the concentration of each dioxin/furan tetrathrough octa-chlorinated isomer emitted using EPA Method 23 at 

40 CFR part 60, appendix A-7. 

(2) For each dioxin/furan (tetra-through octa-chlorinated) 

isomer measured in accordance with paragraph (g)(1) of this 

section, multiply the isomer concentration by its corresponding 

toxic equivalency factor specified in table 3 of this subpart. 

* * * * * 

(h) Method 22 at 40 CFR part 60, appendix A-7 of this part 

must be used to determine compliance with the fugitive ash 

emission limit in table 1 of this subpart or tables 5 through 8 

of this subpart. 

(i) If you have an applicable opacity operating limit, you 

must determine compliance with the opacity limit using Method 9 

at 40 CFR part 60, appendix A-4 of this part, based on three 1-

hour blocks consisting of ten 6-minute average opacity values, 
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unless you are required to install a continuous opacity 

monitoring system, consistent with §§60.2145 and 60.2165. 

17. Section 60.2130 is revised to read as follows: 

§60.2130 How are the performance test data used?

You use results of performance tests to demonstrate 

compliance with the emission limitations in table 1 of this 

subpart or tables 5 through 8 of this subpart. 

18. Section 60.2135 is revised to read as follows: 

§60.2135 How do I demonstrate initial compliance with the 

emission limitations and establish the operating limits?

You must conduct a performance test, as required under 

§§60.2125 and 60.2105 to determine compliance with the emission 

limitations in table 1 of this subpart or tables 5 through 8 of 

this subpart, to establish compliance with any opacity operating 

limit in §60.2110,and to establish operating limits using the 

procedures in §§60.2110 or 60.2115. The performance test must be 

conducted using the test methods listed in table 1 of this 

subpart or tables 5 through 8 of this subpart and the procedures 

in §60.2125. The use of the bypass stack during a performance 

test shall invalidate the performance test. You must conduct a 

performance evaluation of each continuous monitoring system 

within 60 days of installation of the monitoring system. 

19. Section 60.2140 is revised to read as follows: 
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§60.2140 By what date must I conduct the initial performance 

test?

(a) The initial performance test must be conducted within 

60 days after your CISWI unit reaches the charge rate at which 

it will operate, but no later than 180 days after its initial 

startup. 

(b) If you commence or recommence combusting a solid waste 

at an existing combustion unit at any commercial or industrial 

facility, and you conducted a test consistent with the 

provisions of this subpart while combusting the solid waste 

within the 6 months preceding the reintroduction of that solid 

waste in the combustion chamber, you do not need to retest until 

6 months from the date you reintroduce that solid waste. 

(c) If you commence combusting or recommence combusting a 

solid waste at an existing combustion unit at any commercial or 

industrial facility and you have not conducted a performance 

test consistent with the provisions of this subpart while 

combusting the given solid waste within the 6 months preceding 

the reintroduction of that solid waste in the combustion 

chamber, you must conduct a performance test within 60 days 

commencing or recommencing solid waste combustion. 

20. Section 60.2141 is added to read as follows: 

§60.2141 By what date must I conduct the initial air pollution 

control device inspection?
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(a) The initial air pollution control device inspection 

must be conducted within 60 days after installation of the 

control device and the associated CISWI unit reaches the charge 

rate at which it will operate, but no later than 180 days after 

the device’s initial startup. 

(b) Within 10 operating days following an air pollution 

control device inspection, all necessary repairs must be 

completed unless the owner or operator obtains written approval 

from the state agency establishing a date whereby all necessary 

repairs of the designated facility must be completed. 

21. Section 60.2145 is revised to read as follows: 

§60.2145 How do I demonstrate continuous compliance with the 

emission limitations and the operating limits?

(a) Compliance with standards. 

(1) The emission standards and operating requirements set 

forth in this subpart apply at all times. 

(2) If you cease combusting solid waste, you may opt to 

remain subject to the provisions of this subpart. Consistent 

with the definition of CISWI unit, you are subject to the 

requirements of this subpart at least 6 months following the 

last date of solid waste combustion. Solid waste combustion is 

ceased when solid waste is not in the combustion chamber (i.e., 

the solid waste feed to the combustor has been cut off for a 

period of time not less than the solid waste residence time). 
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(3) If you cease combusting solid waste, you must be in 

compliance with any newly applicable standards on the effective 

date of the waste-to-fuel switch. The effective date of the 

waste-to-fuel switch is a date selected by you, that must be at 

least 6 months from the date that you ceased combusting solid 

waste, consistent with §60.2145(a)(2). Your source must remain 

in compliance with this subpart until the effective date of the 

waste-to-fuel switch. 

(4) If you own or operate an existing commercial or 

industrial combustion unit that combusted a fuel or non-waste 

material, and you commence or recommence combustion of solid 

waste, you are subject to the provisions of this subpart as of 

the first day you introduce or reintroduce solid waste to the 

combustion chamber, and this date constitutes the effective date 

of the fuel-to-waste switch. You must complete all initial 

compliance demonstrations for any section 112 standards that are 

applicable to your facility before you commence or recommence 

combustion of solid waste. You must provide 30 days prior notice 

of the effective date of the waste-to-fuel switch. The 

notification must identify: 

(i) The name of the owner or operator of the CISWI unit, 

the location of the source, the emissions unit(s) that will 

cease burning solid waste, and the date of the notice; 
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(ii) The currently applicable subcategory under this 

subpart, and any 40 CFR part 63 subpart and subcategory that 

will be applicable after you cease combusting solid waste; 

(iii) The fuel(s), non-waste material(s) and solid waste(s) 

the CISWI unit is currently combusting and has combusted over 

the past 6 months, and the fuel(s) or non-waste materials the 

unit will commence combusting; 

(iv) The date on which you became subject to the currently 

applicable emission limits; 

(v) The date upon which you will cease combusting solid 

waste, and the date (if different) that you intend for any new 

requirements to become applicable (i.e., the effective date of 

the waste-to-fuel switch), consistent with (2) and (3)) above. 

(5) All air pollution control equipment necessary for 

compliance with any newly applicable emissions limits which 

apply as a result of the cessation or commencement or 

recommencement of combusting solid waste must be installed and 

operational as of the effective date of the waste-to-fuel, or 

fuel-to-waste switch. 

(6) All monitoring systems necessary for compliance with 

any newly applicable monitoring requirements which apply as a 

result of the cessation or commencement or recommencement of 

combusting solid waste must be installed and operational as of 

the effective date of the waste-to-fuel, or fuel-to-waste 
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switch. All calibration and drift checks must be performed as of 

the effective date of the waste-to-fuel, or fuel-to-waste 

switch. Relative accuracy tests must be performed as of the 

performance test deadline for PM CEMS (if PM CEMS are elected to 

demonstrate continuous compliance with the particulate matter 

emission limits). Relative accuracy testing for other CEMS need 

not be repeated if that testing was previously performed 

consistent with Clean Air Act section 112 monitoring 

requirements or monitoring requirements under this subpart. 

(b) You must conduct an annual performance test for the 

pollutants listed in table 1 of this subpart or tables 5 through 

8 of this subpart and opacity for each CISWI unit as required 

under §60.2125. The annual performance test must be conducted 

using the test methods listed in table 1 of this subpart or 

tables 5 through 8 of this subpart and the procedures in 

§60.2125. Annual performance tests are not required if you use 

CEMS or continuous opacity monitoring systems to determine 

compliance. 

(c) You must continuously monitor the operating parameters 

specified in §60.2110 or established under §60.2115 and as 

specified in §60.2170. Use 3-hour block average values to 

determine compliance (except for baghouse leak detection system 

alarms) unless a different averaging period is established under 

§60.2115 or, for energy recovery units, where the averaging time 
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for each operating parameter is a 30-day rolling, calculated 

each hour as the average of the previous 720 operating hours. 

Operation above the established maximum, below the established 

minimum, or outside the allowable range of the operating limits 

specified in paragraph (a) of this section constitutes a 

deviation from your operating limits established under this 

subpart, except during performance tests conducted to determine 

compliance with the emission and operating limits or to 

establish new operating limits. Operating limits are confirmed 

or reestablished during performance tests. 

(d) You must burn only the same types of waste and fuels 

used to establish subcategory applicability (for energy recovery 

units) and operating limits during the performance test. 

(e) For energy recovery units, incinerators, and small 

remote units, you must perform an annual visual emissions test 

for ash handling. 

(f) For energy recovery units, you must conduct an annual 

performance test for opacity using EPA Reference Method 9 at 40 

CFR part 60 (except where particulate matter CEMS or continuous 

parameter monitoring system are used) and the pollutants listed 

in table 6 of this subpart. 

(g) You may elect to demonstrate continuous compliance with 

the carbon monoxide emission limit using a carbon monoxide CEMS 

according to the following requirements: 
Page 327 of 526 

(1) You must measure emissions according to §60.13 to 

calculate 1-hour arithmetic averages, corrected to 7 percent 

oxygen. CEMS data during startup and shutdown, as defined in 

this subpart, are not corrected to 7 percent oxygen, and are 

measured at stack oxygen content. You must demonstrate initial 

compliance with the carbon monoxide emissions limit using a 30-

day rolling average of these 1-hour arithmetic average emission 

concentrations, including CEMS data during startup and shutdown 

as defined in this subpart, calculated using Equation 19-19 in 

section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, 

appendix A–7 of this part. 

(2) Operate the carbon monoxide CEMS in accordance with the 

requirements of performance specification 4A of appendix B of 

this part and quality assurance procedure 1 of appendix F of 

this part. 

(h) Energy recovery units with annual average heat input 

rates greater than or equal to 250 MMBtu/hr and waste-burning 

kilns may elect to demonstrate continuous compliance with the 

particulate matter emissions limit using a particulate matter 

CEMS according to the procedures in §60.2165(n) instead of the 

particulate matter continuous parameter monitoring system (CPMS) 

specified in §60.2145. 

(i) For energy recovery units with annual average heat 

input rates greater than or equal to 10 MMBtu/hour and less than 
Page 328 of 526 

250 MMBtu/hr, you must install, operate, certify and maintain a 

continuous opacity monitoring system (COMS) according to the 

procedures in §60.2165. 

(j) For waste-burning kilns, you must conduct an annual 

performance test for cadmium, lead, dioxins/furans and hydrogen 

chloride as listed in table 7 of this subpart. You must 

determine compliance with hydrogen chloride using a hydrogen 

chloride CEMS if you do not use an acid gas wet scrubber or dry 

scrubber. You must determine compliance with nitrogen oxides, 

sulfur dioxide, and carbon monoxide using CEMS. You must 

determine compliance with particulate matter using CPMS. You 

must determine compliance with the mercury emissions limit using 

a mercury CEMS according to the following requirements: 

(1) Operate a CEMS system in accordance with performance 

specification 12A of 40 CFR part 60, appendix B or a sorbent 

trap based integrated monitor in accordance with performance 

specification 12B of 40 CFR part 60, appendix B. The duration of 

the performance test must be a calendar month. For each calendar 

month in which the waste-burning kiln operates, hourly mercury 

concentration data, and stack gas volumetric flow rate data must 

be obtained. You must demonstrate compliance with the mercury 

emissions limit using a 30-day rolling average of these 1-hour 

mercury concentrations, including CEMS data during startup and 

shutdown as defined in this subpart, calculated using Equation 
Page 329 of 526 

19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR 

part 60, appendix A–7 of this part. CEMS data during startup and 

shutdown, as defined in this subpart, are not corrected to 7 

percent oxygen, and are measured at stack oxygen content. 

(2) Owners or operators using a mercury CEMS must install, 

operate, calibrate, and maintain an instrument for continuously 

measuring and recording the mercury mass emissions rate to the 

atmosphere according to the requirements of performance 

specifications 6 and 12A of 40 CFR part 60, appendix B, and 

quality assurance procedure 6 of 40 CFR part 60, appendix F. 

(3) The owner or operator of a waste-burning kiln must 

demonstrate initial compliance by operating a mercury CEMS while 

the raw mill of the in-line kiln/raw mill is operating under 

normal conditions and while the raw mill of the in-line kiln/raw 

mill is not operating. 

(k) If you use an air pollution control device to meet the 

emission limitations in this subpart, you must conduct an 

initial and annual inspection of the air pollution control 

device. The inspection must include, at a minimum, the 

following: 

(1) Inspect air pollution control device(s) for proper 

operation. 

(2) Develop a site-specific monitoring plan according to 

the requirements in paragraph (l) of this section. This 
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requirement also applies to you if you petition the EPA 

Administrator for alternative monitoring parameters under 

§60.13(i). 

(l) For each continuous monitoring system required in this 

section, you must develop and submit to the EPA Administrator 

for approval a site-specific monitoring plan according to the 

requirements of this paragraph (l) that addresses paragraphs 

(l)(1)(i) through (vi) of this section. 

(1) You must submit this site-specific monitoring plan at 

least 60 days before your initial performance evaluation of your 

continuous monitoring system. 

(i) Installation of the continuous monitoring system 

sampling probe or other interface at a measurement location 

relative to each affected process unit such that the measurement 

is representative of control of the exhaust emissions (e.g., on 

or downstream of the last control device). 

(ii) Performance and equipment specifications for the 

sample interface, the pollutant concentration or parametric 

signal analyzer and the data collection and reduction systems. 

(iii) Performance evaluation procedures and acceptance 

criteria (e.g., calibrations). 

(iv) Ongoing operation and maintenance procedures in 

accordance with the general requirements of §60.11(d). 
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(v) Ongoing data quality assurance procedures in accordance 

with the general requirements of §60.13. 

(vi) Ongoing recordkeeping and reporting procedures in 

accordance with the general requirements of §60.7(b),(c), 

(c)(1), (c)(4), (d), (e), (f), and (g). 

(2) You must conduct a performance evaluation of each 

continuous monitoring system in accordance with your sitespecific monitoring plan. 

(3) You must operate and maintain the continuous monitoring 

system in continuous operation according to the site-specific 

monitoring plan. 

(m) If you have an operating limit that requires the use of 

a flow monitoring system, you must meet the requirements in 

paragraphs (l) and (m)(1) through (4) of this section. 

(1) Install the flow sensor and other necessary equipment 

in a position that provides a representative flow. 

(2) Use a flow sensor with a measurement sensitivity of no 

greater than 2 percent of the expected process flow rate. 

(3) Minimize the effects of swirling flow or abnormal 

velocity distributions due to upstream and downstream 

disturbances. 

(4) Conduct a flow monitoring system performance evaluation 

in accordance with your monitoring plan at the time of each 

performance test but no less frequently than annually. 
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(n) If you have an operating limit that requires the use of 

a pressure monitoring system, you must meet the requirements in 

paragraphs (l) and (n)(1) through (6) of this section. 

(1) Install the pressure sensor(s) in a position that 

provides a representative measurement of the pressure (e.g., PM 

scrubber pressure drop). 

(2) Minimize or eliminate pulsating pressure, vibration, 

and internal and external corrosion. 

(3) Use a pressure sensor with a minimum tolerance of 1.27 

centimeters of water or a minimum tolerance of 1 percent of the 

pressure monitoring system operating range, whichever is less. 

(4) Perform checks at least once each process operating day 

to ensure pressure measurements are not obstructed (e.g., check 

for pressure tap pluggage daily). 

(5) Conduct a performance evaluation of the pressure 

monitoring system in accordance with your monitoring plan at the 

time of each performance test but no less frequently than 

annually. 

(6) If at any time the measured pressure exceeds the 

manufacturer's specified maximum operating pressure range, 

conduct a performance evaluation of the pressure monitoring 

system in accordance with your monitoring plan and confirm that 

the pressure monitoring system continues to meet the performance 
Page 333 of 526 

requirements in your monitoring plan. Alternatively, install and 

verify the operation of a new pressure sensor. 

(o) If you have an operating limit that requires a pH 

monitoring system, you must meet the requirements in paragraphs 

(l) and (o)(1) through (4) of this section. 

(1) Install the pH sensor in a position that provides a 

representative measurement of scrubber effluent pH. 

(2) Ensure the sample is properly mixed and representative 

of the fluid to be measured. 

(3) Conduct a performance evaluation of the pH monitoring 

system in accordance with your monitoring plan at least once 

each process operating day. 

(4) Conduct a performance evaluation (including a two-point 

calibration with one of the two buffer solutions having a pH 

within 1 of the pH of the operating limit) of the pH monitoring 

system in accordance with your monitoring plan at the time of 

each performance test but no less frequently than quarterly. 

(p) If you have an operating limit that requires a 

secondary electric power monitoring system for an electrostatic 

precipitator, you must meet the requirements in paragraphs (l) 

and (p)(1) through (2) of this section. 

(1) Install sensors to measure (secondary) voltage and 

current to the precipitator collection plates. 
Page 334 of 526 

(2) Conduct a performance evaluation of the electric power 

monitoring system in accordance with your monitoring plan at the 

time of each performance test but no less frequently than 

annually. 

(q) If you have an operating limit that requires the use of 

a monitoring system to measure sorbent injection rate (e.g., 

weigh belt, weigh hopper, or hopper flow measurement device), 

you must meet the requirements in paragraphs (l) and (q)(1) and 

(2) of this section. 

(1) Install the system in a position(s) that provides a 

representative measurement of the total sorbent injection rate. 

(2) Conduct a performance evaluation of the sorbent 

injection rate monitoring system in accordance with your 

monitoring plan at the time of each performance test but no less 

frequently than annually. 

(r) If you elect to use a fabric filter bag leak detection 

system to comply with the requirements of this subpart, you must 

install, calibrate, maintain, and continuously operate a bag 

leak detection system as specified in paragraphs(l) and (r)(1) 

through (5) of this section. 

(1) Install a bag leak detection sensor(s) in a position(s) 

that will be representative of the relative or absolute 

particulate matter loadings for each exhaust stack, roof vent, 
Page 335 of 526 

or compartment (e.g., for a positive pressure fabric filter) of 

the fabric filter. 

(2) Use a bag leak detection system certified by the 

manufacturer to be capable of detecting particulate matter 

emissions at concentrations of 10 milligrams per actual cubic 

meter or less. 

(3) Conduct a performance evaluation of the bag leak 

detection system in accordance with your monitoring plan and 

consistent with the guidance provided in EPA–454/R–98–015 

(incorporated by reference, see §60.17). 

(4) Use a bag leak detection system equipped with a device 

to continuously record the output signal from the sensor. 

(5) Use a bag leak detection system equipped with a system 

that will sound an alarm when an increase in relative 

particulate matter emissions over a preset level is detected. 

The alarm must be located where it is observed readily by plant 

operating personnel. 

(s) For facilities using a CEMS to demonstrate compliance 

with the sulfur dioxide emission limit, compliance with the 

sulfur dioxide emission limit may be demonstrated by using the 

CEMS specified in §60.2165 to measure sulfur dioxide. CEMS data 

during startup and shutdown, as defined in this subpart, are not 

corrected to 7 percent oxygen, and are measured at stack oxygen 

content. You must calculate a 30-day rolling average of the 1-
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hour arithmetic average emission concentrations, including CEMS 

data during startup and shutdown as defined in this subpart, 

calculated using Equation 19-19 in section 12.4.1 of EPA 

Reference Method 19 at 40 CFR part 60, Appendix A-7 of this 

part. The sulfur dioxide CEMS must be operated according to 

performance specification 2 in appendix B of this part and must 

follow the procedures and methods specified in this paragraph 

(s). For sources that have actual inlet emissions less than 100 

parts per million dry volume, the relative accuracy criterion 

for inlet sulfur dioxide CEMS should be no greater than 20 

percent of the mean value of the reference method test data in 

terms of the units of the emission standard, or 5 parts per 

million dry volume absolute value of the mean difference between 

the reference method and the CEMS, whichever is greater. 

(1) During each relative accuracy test run of the CEMS 

required by performance specification 2 in appendix B of this 

part, collect sulfur dioxide and oxygen (or carbon dioxide) data 

concurrently (or within a 30- to 60-minute period) with both the 

continuous emissions monitors and the test methods specified in 

paragraphs (s)(1)(i) and (s)(1)(ii) of this section. 

(i) For sulfur dioxide, EPA Reference Method 6 or 6C, or as 

an alternative ANSI/ASME PTC 19.10–1981 (incorporated by 

reference, see §60.17) must be used. 
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(ii) For oxygen (or carbon dioxide), EPA Reference Method 

3A or 3B, or as an alternative ANSI/ASME PTC 19.10–1981 

(incorporated by reference, see §60.17), must be used. 

(2) The span value of the CEMS at the inlet to the sulfur 

dioxide control device must be 125 percent of the maximum 

estimated hourly potential sulfur dioxide emissions of the unit 

subject to this rule. The span value of the CEMS at the outlet 

of the sulfur dioxide control device must be 50 percent of the 

maximum estimated hourly potential sulfur dioxide emissions of 

the unit subject to this rule. 

(3) Conduct accuracy determinations quarterly and 

calibration drift tests daily in accordance with procedure 1 in 

appendix F of this part. 

(t) For facilities using a CEMS to demonstrate continuous 

compliance with the nitrogen oxides emission limit, compliance 

with the nitrogen oxides emission limit may be demonstrated by 

using the CEMS specified in §60.2165 to measure nitrogen oxides. 

CEMS data during startup and shutdown, as defined in this 

subpart, are not corrected to 7 percent oxygen, and are measured 

at stack oxygen content. You must calculate a 30-day rolling 

average of the 1-hour arithmetic average emission 

concentrations, including CEMS data during startup and shutdown 

as defined in this subpart, using Equation 19-19 in section 

12.4.1 of EPA Reference Method 19 at 40 CFR part 60, appendix A-
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7 of this part. The nitrogen oxides CEMS must be operated 

according to performance specification 2 in appendix B of this 

part and must follow the procedures and methods specified in 

paragraphs (t)(1) through (t)(5) of this section. 

(1) During each relative accuracy test run of the CEMS 

required by performance specification 2 of appendix B of this 

part, collect nitrogen oxides and oxygen (or carbon dioxide) 

data concurrently (or within a 30- to 60-minute period) with 

both the CEMS and the test methods specified in paragraphs 

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

(i) For nitrogen oxides, EPA Reference Method 7 or 7E at 40 

CFR part 60, appendix A-4 must be used. 

(ii) For oxygen (or carbon dioxide), EPA Reference Method 

3A or 3B at 40 CFR part 60, appendix A-3, or as an alternative 

ANSI/ASME PTC 19–10.1981 (incorporated by reference, see 

§60.17), as applicable, must be used. 

(2) The span value of the CEMS must be 125 percent of the 

maximum estimated hourly potential nitrogen oxide emissions of 

the unit. 

(3) Conduct accuracy determinations quarterly and 

calibration drift tests daily in accordance with procedure 1 in 

appendix F of this part. 

(4) The owner or operator of an affected facility may 

request that compliance with the nitrogen oxides emission limit 
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be determined using carbon dioxide measurements corrected to an 

equivalent of 7 percent oxygen. If carbon dioxide is selected 

for use in diluent corrections, the relationship between oxygen 

and carbon dioxide levels must be established during the initial 

performance test according to the procedures and methods 

specified in paragraphs (t)(4)(i) through (t)(4)(iv) of this 

section. This relationship may be re-established during 

performance compliance tests. 

(i) The fuel factor equation in Method 3B must be used to 

determine the relationship between oxygen and carbon dioxide at 

a sampling location. Method 3A or 3B, or as an alternative 

ANSI/ASME PTC 19.10–1981 (incorporated by reference, see 

§60.17), as applicable, must be used to determine the oxygen 

concentration at the same location as the carbon dioxide 

monitor. 

(ii) Samples must be taken for at least 30 minutes in each 

hour. 

(iii) Each sample must represent a 1-hour average. 

(iv) A minimum of three runs must be performed. 

(u) For facilities using a CEMS to demonstrate continuous 

compliance with any of the emission limits of this subpart, you 

must complete the following: 

(1) Demonstrate compliance with the appropriate emission 

limit(s) using a 30-day rolling average of 1-hour arithemetic 
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average emission concentrations, including CEMS data during 

startup and shutdown as defined in this subpart, calculated 

using Equation 19-19 in section 12.4.1 of EPA Reference Method 

19 at 40 CFR part 60, appendix A-7 of this part. CEMS data 

during startup and shutdown, as defined in this subpart, are not 

corrected to 7 percent oxygen, and are measured at stack oxygen 

content. 

(2) Operate all CEMS in accordance with the applicable 

procedures under appendices B and F of this part. 

(v) Use of the bypass stack at any time is an emissions 

standards deviation for particulate matter, HCl, Pb, Cd, Hg, 

NOx, SO2, and dioxin/furans. 

(w) For energy recovery units with a design heat input 

capacity of 100 MMBtu per hour or greater that do not use a 

carbon monoxide CEMS, you must install, operate, and maintain a 

oxygen analyzer system as defined in §60.2265 according to the 

procedures in paragraphs (w)(1) through (4) of this section. 

(1) The oxygen analyzer system must be installed by the 

initial performance test date specified in §60.2675. 

(2) You must operate the oxygen trim system within 

compliance with paragraph (w)(3) of this section at all times. 

(3) You must maintain the oxygen level such that the 30-day 

rolling average that is established as the operating limit for 

oxygen is not below the lowest hourly average oxygen 
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concentration measured during the most recent CO performance 

test. 

(4) You must calculate and record a 30-day rolling average 

oxygen concentration using Equation 19-19 in section 12.4.1 of 

EPA Reference Method 19 of Appendix A-7 of this part. 

(x) For energy recovery units with annual average heat 

input rates greater than or equal to 250 MMBtu/hour and wasteburning kilns, you must install, calibrate, maintain, and 

operate a PM CPMS and record the output of the system as 

specified in paragraphs (x)(1) through (7) of this section. For 

other energy recovery units, you may elect to use PM CPMS 

operated in accordance with this section. PM CPMS are suitable 

in lieu of using other CMS for monitoring PM compliance (e.g., 

bag leak detectors, ESP secondary power, PM scrubber pressure). 

(1) Install, calibrate, operate, and maintain your PM CPMS 

according to the procedures in your approved site-specific 

monitoring plan developed in accordance with §60.2145(l) and 

(x)(1)(i) through (iii) of this section. 

(i) The operating principle of the PM CPMS must be based on 

in-stack or extractive light scatter, light scintillation, beta 

attenuation, or mass accumulation detection of the exhaust gas 

or representative sample. The reportable measurement output from 

the PM CPMS may be expressed as milliamps, stack concentration, 

or other raw data signal. 
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(ii) The PM CPMS must have a cycle time (i.e., period 

required to complete sampling, measurement, and reporting for 

each measurement) no longer than 60 minutes. 

(iii) The PM CPMS must be capable of detecting and 

responding to particulate matter concentrations of no greater 

than 0.5 mg/actual cubic meter. 

(2) During the initial performance test or any such 

subsequent performance test that demonstrates compliance with 

the PM limit, you must: 

(i) Record all hourly average output values (e.g., 

milliamps, stack concentration, or other raw data signal) from 

the PM CPMS for the periods corresponding to the test runs 

(e.g., three 1-hour average PM CPMS output values for three 1-

hour test runs), and 

(ii) Determine your operating limit as the highest 1-hour 

average PM CPMS output value recorded during the performance 

test. You must verify an existing or establish a new operating 

limit after each repeated performance test. 

(3) Collect PM CPMS hourly average output data for all 

energy recovery unit or waste-burning kiln operating hours. 

Express the PM CPMS output as millamps, PM concentration, or 

other raw data signal value. 

(4) Calculate the arithmetic 30-day rolling average of all 

of the hourly average PM CPMS output collected during all energy 
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recovery unit or waste-burning kiln operating hours data (e.g., 

milliamps, PM concentration, raw data signal). 

 (5) You must collect data using the PM CPMS at all times 

the energy recovery unit or waste-burning kiln is operating and 

at the intervals specified in paragraph (x)(1)(ii) of this 

section, except for periods of monitoring system malfunctions, 

repairs associated with monitoring system malfunctions, required 

monitoring system quality assurance or quality control 

activities (including, as applicable, calibration checks and 

required zero and span adjustments), and any scheduled 

maintenance as defined in your site-specific monitoring plan.

 (6) You must use all the data collected during all energy 

recovery unit or waste-burning kiln operating hours in assessing 

the compliance with your operating limit except:

 (i) Any data collected during monitoring system 

malfunctions, repairs associated with monitoring system 

malfunctions, or required monitoring system quality assurance or 

quality control activities conducted during monitoring system 

malfunctions are not used in calculations (report any such 

periods in your annual deviation report);

 (ii) Any data collected during periods when the monitoring 

system is out of control as specified in your site-specific 

monitoring plan, repairs associated with periods when the 

monitoring system is out of control, or required monitoring 
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system quality assurance or quality control activities conducted 

during out-of-control periods are not used in calculations 

(report emissions or operating levels and report any such 

periods in your annual deviation report); 

 (iii) Any PM CPMS data recorded during periods of CEMS data 

during startup and shutdown, as defined in this subpart.

(7) You must record and make available upon request results 

of PM CPMS system performance audits, as well as the dates and 

duration of periods from when the PM CPMS is out of control 

until completion of the corrective actions necessary to return 

the PM CPMS to operation consistent with your site-specific 

monitoring plan. 

22. Section 60.2150 is revised to read as follows: 

§60.2150 By what date must I conduct the annual performance 

test?

You must conduct annual performance tests between 11 and 13 

months of the previous performance test. 

23. Section 60.2151 is added to read as follows: 

§60.2151 By what date must I conduct the annual air pollution 

control device inspection?

On an annual basis (no more than 12 months following the 

previous annual air pollution control device inspection), you 

must complete the air pollution control device inspection as 

described in §60.2141. 
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24. Section 60.2155 is revised to read as follows: 

§60.2155 May I conduct performance testing less often?

(a) You must conduct annual performance tests according to 

the schedule specified in §60.2150, with the following 

exceptions: 

(1) You may conduct a repeat performance test at any time 

to establish new values for the operating limits to apply from 

that point forward, as specified in §60.2160. The Administrator 

may request a repeat performance test at any time. 

(2) You must repeat the performance test within 60 days of 

a process change, as defined in §60.2265. 

(3) If the initial or any subsequent performance test for 

any pollutant in table 1 or tables 5 through 8 of this subpart, 

as applicable, demonstrates that the emission level for the 

pollutant is no greater than the emission level specified in 

paragraph (a)(3)(i) or (a)(3)(ii) of this section, as 

applicable, and you are not required to conduct a performance 

test for the pollutant in response to a request by the 

Administrator in paragraph (a)(1) of this section or a process 

change in paragraph (a)(2) of this section, you may elect to 

skip conducting a performance test for the pollutant for the 

next 2 years. You must conduct a performance test for the 

pollutant during the third year and no more than 37 months 

following the previous performance test for the pollutant. For 
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cadmium and lead, both cadmium and lead must be emitted at 

emission levels no greater than their respective emission levels 

specified in paragraph (a)(3)(i) of this section for you to 

qualify for less frequent testing under this paragraph. 

(i) For particulate matter, hydrogen chloride, mercury, 

nitrogen oxides, sulfur dioxide, cadmium, lead and 

dioxins/furans, the emission level equal to 75 percent of the 

applicable emission limit in table 1 or tables 5 through 8 of 

this subpart, as applicable, to this subpart. 

(ii) For fugitive emissions, visible emissions (of 

combustion ash from the ash conveying system) for 2 percent of 

the time during each of the three 1-hour observations periods. 

(4) If you are conducting less frequent testing for a 

pollutant as provided in paragraph (a)(3) of this section and a 

subsequent performance test for the pollutant indicates that 

your CISWI unit does not meet the emission level specified in 

paragraph (a)(3)(i) or (a)(3)(ii) of this section, as 

applicable, you must conduct annual performance tests for the 

pollutant according to the schedule specified in paragraph (a) 

of this section until you qualify for less frequent testing for 

the pollutant as specified in paragraph (a)(3) of this section. 

(b) [Reserved] 

25. Section 60.2165 is amended by: 

a. Revising paragraph (b)(6). 
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b. Revising paragraph (c). 

c. Adding paragraphs (d) through (s) to read as follows: 

§60.2165 What monitoring equipment must I install and what 

parameters must I monitor?

* * * * * 

(b) * * * 

(6) The bag leak detection system must be equipped with an 

alarm system that will alert automatically an operator when an 

increase in relative particulate matter emissions over a preset 

level is detected. The alarm must be located where it is 

observed easily by plant operating personnel. 

* * * * * 

(c) If you are using something other than a wet scrubber, 

activated carbon, selective non-catalytic reduction, an 

electrostatic precipitator, or a dry scrubber to comply with the 

emission limitations under §60.2105, you must install, calibrate 

(to the manufacturers’ specifications), maintain, and operate 

the equipment necessary to monitor compliance with the sitespecific operating limits established using the procedures in 

§60.2115. 

(d) If you use activated carbon injection to comply with 

the emission limitations in this subpart, you must measure the 

minimum mercury sorbent flow rate once per hour. 
Page 348 of 526 

(e) If you use selective noncatalytic reduction to comply 

with the emission limitations, you must complete the following: 

(1) Following the date on which the initial performance 

test is completed or is required to be completed under §60.2125, 

whichever date comes first, ensure that the affected facility 

does not operate above the maximum charge rate, or below the 

minimum secondary chamber temperature (if applicable to your 

CISWI unit) or the minimum reagent flow rate measured as 3-hour 

block averages at all times. 

(2) Operation of the affected facility above the maximum 

charge rate, below the minimum secondary chamber temperature and 

below the minimum reagent flow rate simultaneously constitute a 

violation of the nitrogen oxides emissions limit. 

(f) If you use an electrostatic precipitator to comply with 

the emission limits of this subpart, you must monitor the 

secondary power to the electrostatic precipitator collection 

plates and maintain the 3-hour block averages at or above the 

operating limits established during the mercury or particulate 

matter performance test. 

(g) For waste-burning kilns not equipped with a wet 

scrubber or dry scrubber, in place of hydrogen chloride testing 

with EPA Method 321 at 40 CFR part 63, appendix A, an owner or 

operator must install, calibrate, maintain, and operate a CEMS 

for monitoring hydrogen chloride emissions discharged to the 
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atmosphere and record the output of the system. To demonstrate 

continuous compliance with the hydrogen chloride emissions limit 

for units other than waste-burning kilns not equipped with a wet 

scrubber or dry scrubber, a facility may substitute use of a 

hydrogen chloride CEMS for conducting the hydrogen chloride 

annual performance test, monitoring the minimum hydrogen 

chloride sorbent flow rate, monitoring the minimum scrubber 

liquor pH, and monitoring minimum injection rate. 

(h) To demonstrate continuous compliance with the 

particulate matter emissions limit, a facility may substitute 

use of a particulate matter CEMS for conducting the PM annual 

performance test and using other CMS for monitoring PM 

compliance (e.g., bag leak detectors, ESP secondary power, PM 

scrubber pressure). 

(i) To demonstrate continuous compliance with the 

dioxin/furan emissions limit, a facility may substitute use of a 

continuous automated sampling system for the dioxin/furan annual 

performance test. You must record the output of the system and 

analyze the sample according to EPA Method 23 at 40 CFR part 60, 

appendix A-7 of this part. This option to use a continuous 

automated sampling system takes effect on the date a final 

performance specification applicable to dioxin/furan from 

continuous monitors is published in the Federal Register. The 

owner or operator who elects to continuously sample dioxin/furan 
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emissions instead of sampling and testing using EPA Method 23 at 

40 CFR part 60, appendix A-7 must install, calibrate, maintain, 

and operate a continuous automated sampling system and must 

comply with the requirements specified in §60.58b(p) and (q). A 

facility may substitute continuous dioxin/furan monitoring for 

the minimum sorbent flow rate, if activated carbon sorbent 

injection is used solely for compliance with the dioxin/furan 

emission limit. 

(j) To demonstrate continuous compliance with the mercury 

emissions limit, a facility may substitute use of a continuous 

automated sampling system for the mercury annual performance 

test. You must record the output of the system and analyze the 

sample at set intervals using any suitable determinative 

technique that can meet performance specification 12B. The owner 

or operator who elects to continuously sample mercury emissions 

instead of sampling and testing using EPA Reference Method 29 or 

30B at 40 CFR part 60, appendix A-8 of this part, ASTM D6784-02 

(Reapproved 2008) (incorporated by reference, see §60.17), or an 

approved alternative method for measuring mercury emissions, 

must install, calibrate, maintain, and operate a continuous 

automated sampling system and must comply with performance 

specification 12A and quality assurance procedure 5, as well as 

the requirements specified in §60.58b(p) and (q). A facility may 

substitute continuous mercury monitoring for the minimum sorbent 
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flow rate, if activated carbon sorbent injection is used solely 

for compliance with the mercury emission limit. 

(k) To demonstrate continuous compliance with the nitrogen 

oxides emissions limit, a facility may substitute use of a CEMS 

for the nitrogen oxides annual performance test to demonstrate 

compliance with the nitrogen oxides emissions limits and 

monitoring the charge rate, secondary chamber temperature and 

reagent flow for selective noncatalytic reduction, if 

applicable. 

(1) Install, calibrate, maintain, and operate a CEMS for 

measuring nitrogen oxides emissions discharged to the atmosphere 

and record the output of the system. The requirements under 

performance specification 2 of appendix B of this part, the 

quality assurance procedure one of appendix F of this part and 

the procedures under §60.13 must be followed for installation, 

evaluation, and operation of the CEMS. 

(2) Following the date that the initial performance test 

for nitrogen oxides is completed or is required to be completed 

under §60.2125, compliance with the emission limit for nitrogen 

oxides required under §60.52b(d) must be determined based on the 

30-day rolling average of the hourly emission concentrations 

using CEMS outlet data. The 1-hour arithmetic averages must be 

expressed in parts per million by volume corrected to 7 percent 

oxygen (dry basis) and used to calculate the 30-day rolling 
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average concentrations. CEMS data during startup and shutdown, 

as defined in this subpart, are not corrected to 7 percent 

oxygen, and are measured at stack oxygen content. The 1-hour 

arithmetic averages must be calculated using the data points 

required under §60.13(e)(2). 

(l) To demonstrate continuous compliance with the sulfur 

dioxide emissions limit, a facility may substitute use of a 

continuous automated sampling system for the sulfur dioxide 

annual performance test to demonstrate compliance with the 

sulfur dioxide emissions limits. 

(1) Install, calibrate, maintain, and operate a CEMS for 

measuring sulfur dioxide emissions discharged to the atmosphere 

and record the output of the system. The requirements under 

performance specification 2 of appendix B of this part, the 

quality assurance requirements of procedure one of appendix F of 

this part and procedures under §60.13 must be followed for 

installation, evaluation, and operation of the CEMS. 

(2) Following the date that the initial performance test 

for sulfur dioxide is completed or is required to be completed 

under §60.2125, compliance with the sulfur dioxide emission 

limit may be determined based on the 30-day rolling average of 

the hourly arithmetic average emission concentrations using CEMS 

outlet data. The 1-hour arithmetic averages must be expressed in 

parts per million corrected to 7 percent oxygen (dry basis) and 
Page 353 of 526 

used to calculate the 30-day rolling average emission 

concentrations. CEMS data during startup and shutdown, as 

defined in this subpart, are not corrected to 7 percent oxygen, 

and are measured at stack oxygen content. The 1-hour arithmetic 

averages must be calculated using the data points required under 

§60.13(e)(2). 

(m) For energy recovery units over 10 MMBtu/hr but less 

than 250 MMBtu/hr annual average heat input rates that do not 

use a wet scrubber, fabric filter with bag leak detection 

system, or particulate matter CEMS, you must install, operate, 

certify, and maintain a continuous opacity monitoring system 

according to the procedures in paragraphs (m)(1) through (5) of 

this section by the compliance date specified in §60.2105. 

Energy recovery units that use a CEMS to demonstrate initial and 

continuing compliance according to the procedures in §60.2165(n) 

are not required to install a continuous opacity monitoring 

system and must perform the annual performance tests for the 

opacity consistent with §60.2145(f). 

(1) Install, operate, and maintain each continuous opacity 

monitoring system according to performance specification 1 of 40 

CFR part 60, appendix B. 

(2) Conduct a performance evaluation of each continuous 

opacity monitoring system according to the requirements in 

§60.13 and according to PS-1 of 40 CFR part 60, appendix B. 
Page 354 of 526 

(3) As specified in §60.13(e)(1), each continuous opacity 

monitoring system must complete a minimum of one cycle of 

sampling and analyzing for each successive 10-second period and 

one cycle of data recording for each successive 6-minute period. 

(4) Reduce the continuous opacity monitoring system data as 

specified in §60.13(h)(1). 

(5) Determine and record all the 6-minute averages (and 1-

hour block averages as applicable) collected. 

(n) For energy recovery units with annual average heat 

input rates greater than 250 MMBtu/hr and waste-burning kilns, 

in place of particulate matter testing with EPA Method 5 at 40 

CFR part 60, appendix A-3, an owner or operator may install, 

calibrate, maintain, and operate a CEMS for monitoring 

particulate matter emissions discharged to the atmosphere and 

record the output of the system. The owner or operator of an 

affected facility who continuously monitors particulate matter 

emissions instead of conducting performance testing using EPA 

Method 5 at 40 CFR part 60, appendix A-3 must or particulate 

matter CPMS according to paragraph (r) of this section, install, 

calibrate, maintain and operate a CEMS and must comply with the 

requirements specified in paragraphs (n)(1) through (n)(13) of 

this section. 

(1) Notify the Administrator 1 month before starting use of 

the system. 
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(2) Notify the Administrator 1 month before stopping use of 

the system. 

(3) The monitor must be installed, evaluated, and operated 

in accordance with the requirements of performance specification 

11 of appendix B of this part and quality assurance requirements 

of procedure two of appendix F of this part and §60.13. Use 

Method 5 or Method 5I of Appendix A of this part for the PM CEMS 

correlation testing. 

(4) The initial performance evaluation must be completed no 

later than 180 days after the date of initial startup of the 

affected facility, as specified under §60.2125 or within 180 

days of notification to the Administrator of use of the 

continuous monitoring system if the owner or operator was 

previously determining compliance by Method 5 performance tests, 

whichever is later. 

(5) The owner or operator of an affected facility may 

request that compliance with the particulate matter emission 

limit be determined using carbon dioxide measurements corrected 

to an equivalent of 7 percent oxygen. The relationship between 

oxygen and carbon dioxide levels for the affected facility must 

be established according to the procedures and methods specified 

in §60.2145(s)(5)(i) through (s)(5)(iv). 

(6) The owner or operator of an affected facility must 

conduct an initial performance test for particulate matter 
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emissions as required under §60.2125. Compliance with the 

particulate matter emission limit, if PM CEMS are elected for 

demonstrating compliance, must be determined by using the CEMS 

specified in paragraph (n) of this section to measure 

particulate matter. You must calculate a 30-day rolling average 

of 1-hour arithmetic average emission concentrations, including 

CEMS data during startup and shutdown as defined in this 

subpart, using Equation 19-19 in section 12.4.1 of EPA Reference 

Method 19 at 40 CFR part 60, appendix A-7. 

(7) Compliance with the particulate matter emission limit 

must be determined based on the 30-day rolling average 

calculated using Equation 19-19 in section 12.4.1 of EPA 

Reference Method 19 at 40 CFR part 60, appendix A-7 from the 1-

hour arithmetic average CEMS outlet data. 

(8) At a minimum, valid continuous monitoring system hourly 

averages must be obtained as specified in §60.2170(e). 

(9) The 1-hour arithmetic averages required under paragraph 

(n)(7) of this section must be expressed in milligrams per dry 

standard cubic meter corrected to 7 percent oxygen (dry basis) 

and must be used to calculate the 30-day rolling average 

emission concentrations. CEMS data during startup and shutdown, 

as defined in this subpart, are not corrected to 7 percent 

oxygen, and are measured at stack oxygen content. The 1-hour 
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arithmetic averages must be calculated using the data points 

required under §60.13(e)(2). 

(10) All valid CEMS data must be used in calculating 

average emission concentrations even if the minimum CEMS data 

requirements of paragraph (n)(8) of this section are not met. 

(11) The CEMS must be operated according to performance 

specification 11 in appendix B of this part. 

(12) During each relative accuracy test run of the CEMS 

required by performance specification 11 in appendix B of this 

part, particulate matter and oxygen (or carbon dioxide) data 

must be collected concurrently (or within a 30- to 60-minute 

period) by both the continuous emissions monitors and the 

following test methods. 

(i) For particulate matter, EPA Reference Method 5 must be 

used. 

(ii) For oxygen (or carbon dioxide), EPA Reference Method 

3A or 3B, as applicable, must be used. 

(13) Quarterly accuracy determinations and daily 

calibration drift tests must be performed in accordance with 

procedure 2 in appendix F of this part. 

(o) To demonstrate continuous compliance with the carbon 

monoxide emissions limit, you may elect to use a continuous 

automated sampling system. 
Page 358 of 526 

(1) Install, calibrate, maintain, and operate a CEMS for 

measuring carbon monoxide emissions discharged to the atmosphere 

and record the output of the system. The requirements under 

performance specification 4B of appendix B of this part, the 

quality assurance procedure 1 of appendix F of this part and the 

procedures under §60.13 must be followed for installation, 

evaluation, and operation of the CEMS. 

(2) Following the date that the initial performance test 

for carbon monoxide is completed or is required to be completed 

under §60.2140, compliance with the carbon monoxide emission 

limit may be determined based on the 30-day rolling average of 

the hourly arithmetic average emission concentrations, including 

CEMS data during startup and shutdown as defined in this 

subpart, using CEMS outlet data. Except for CEMS data during 

startup and shutdown, as defined in this subpart, the 1-hour 

arithmetic averages must be expressed in parts per million 

corrected to 7 percent oxygen (dry basis) and used to calculate 

the 30-day rolling average emission concentrations. CEMS data 

during startup and shutdown, as defined in this subpart, are not 

corrected to 7 percent oxygen, and are measured at stack oxygen 

content. The 1-hour arithmetic averages must be calculated using 

the data points required under §60.13(e)(2). 

(p) The owner/operator of an affected source with a bypass 

stack shall install, calibrate (to manufacturers’ 
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specifications), maintain, and operate a device or method for 

measuring the use of the bypass stack including date, time and 

duration. 

(q) For energy recovery units with a design heat input 

capacity of 100 MMBtu per hour or greater that do not use a 

carbon monoxide CEMS, you must install, operate, and maintain a 

oxygen analyzer system as defined in §60.2265 according to the 

procedures in paragraphs (q)(1) through (4) of this section. 

(1) The oxygen analyzer system must be installed by the 

initial performance test date specified in §60.2675. 

(2) You must operate the oxygen trim system within 

compliance with paragraph (q)(3) of this section at all times. 

(3) You must maintain the oxygen level such that the 30-day 

rolling average that is established as the operating limit for 

oxygen according to paragraph (q)(4) of this section is not 

below the lowest hourly average oxygen concentration measured 

during the most recent CO performance test. 

(4) You must calculate and record a 30-day rolling average 

oxygen concentration using Equation 19-19 in section 12.4.1 of 

EPA Reference Method 19 of Appendix A-7 of this part. 

(r) For energy recovery units with annual average heat 

input rates greater than or equal to 250 MMBtu/hour and wasteburning kilns, you must install, calibrate, maintain, and 

operate a PM CPMS and record the output of the system as 
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specified in paragraphs (r)(1) through (7) of this section. If 

you elect to use a particulate matter CEMS as specified in 

paragraph (n) of this section, you are not required to use a PM 

CPMS to monitor particulate matter emissions. For other energy 

recovery units, you may elect to use PM CPMS operated in 

accordance with this section. PM CPMS are suitable in lieu of 

using other CMS for monitoring PM compliance (e.g., bag leak 

detectors, ESP secondary power, PM scrubber pressure) 

(1) Install, calibrate, operate, and maintain your PM CPMS 

according to the procedures in your approved site-specific 

monitoring plan developed in accordance with §60.2145(l) and 

(r)(1)(i) through (iii) of this section. 

(i) The operating principle of the PM CPMS must be based on 

in-stack or extractive light scatter, light scintillation, beta 

attenuation, or mass accumulation detection of the exhaust gas 

or representative sample. The reportable measurement output from 

the PM CPMS may be expressed as milliamps, stack concentration, 

or other raw data signal. 

(ii) The PM CPMS must have a cycle time (i.e., period 

required to complete sampling, measurement, and reporting for 

each measurement) no longer than 60 minutes. 

(iii) The PM CPMS must be capable of detecting and 

responding to particulate matter concentrations of no greater 

than 0.5 mg/actual cubic meter. 
Page 361 of 526 

(2) During the initial performance test or any such 

subsequent performance test that demonstrates compliance with 

the PM limit, you must: 

(i) Record all hourly average output values (e.g., 

milliamps, stack concentration, or other raw data signal) from 

the PM CPMS for the periods corresponding to the test runs 

(e.g., three 1-hour average PM CPMS output values for three 1-

hour test runs), and 

(ii) Determine your operating limit as the highest 1-hour 

average PM CPMS output value recorded during the performance 

test. You must verify an existing or establish a new operating 

limit after each repeated performance test. 

(3) Collect PM CPMS hourly average output data for all 

energy recovery unit or waste-burning kiln operating hours. 

Express the PM CPMS output as millamps, PM concentration, or 

other raw data signal value. 

(4) Calculate the arithmetic 30-day rolling average of all 

of the hourly average PM CPMS output collected during all energy 

recovery unit or waste-burning kiln operating hours data (e.g., 

milliamps, PM concentration, raw data signal). 

 (5) You must collect data using the PM CPMS at all times 

the energy recovery unit or waste-burning kiln is operating and 

at the intervals specified in paragraph (r)(1)(ii) of this 

section, except for periods of monitoring system malfunctions, 
Page 362 of 526 

repairs associated with monitoring system malfunctions, required 

monitoring system quality assurance or quality control 

activities (including, as applicable, calibration checks and 

required zero and span adjustments), and any scheduled 

maintenance as defined in your site-specific monitoring plan.

 (6) You must use all the data collected during all energy 

recovery unit or waste-burning kiln operating hours in assessing 

the compliance with your operating limit except:

 (i) Any data collected during monitoring system 

malfunctions, repairs associated with monitoring system 

malfunctions, or required monitoring system quality assurance or 

quality control activities conducted during monitoring system 

malfunctions are not used in calculations (report any such 

periods in your annual deviation report);

 (ii) Any data collected during periods when the monitoring 

system is out of control as specified in your site-specific 

monitoring plan, repairs associated with periods when the 

monitoring system is out of control, or required monitoring 

system quality assurance or quality control activities conducted 

during out-of-control periods are not used in calculations 

(report emissions or operating levels and report any such 

periods in your annual deviation report); 

 (iii) Any PM CPMS data recorded during periods of CEMS data 

during startup and shutdown, as defined in this subpart.
Page 363 of 526 

(7) You must record and make available upon request results 

of PM CPMS system performance audits, as well as the dates and 

duration of periods from when the PM CPMS is out of control 

until completion of the corrective actions necessary to return 

the PM CPMS to operation consistent with your site-specific 

monitoring plan. 

(s) If you use a dry scrubber to comply with the emission 

limits of this subpart, you must monitor the injection rate of 

each sorbent and maintain the 3-hour block averages at or above 

the operating limits established during the hydrogen chloride 

performance test. 

26. Section 60.2170 is revised to read as follows: 

§60.2170 Is there a minimum amount of monitoring data I must 

obtain?

For each continuous monitoring system required or 

optionally allowed under §60.2165, you must collect data 

according to this section: 

(a) You must operate the monitoring system and collect data 

at all required intervals at all times compliance is required 

except for periods of monitoring system malfunctions or out-ofcontrol periods, repairs associated with monitoring system 

malfunctions or out-of-control periods (as specified in 

60.2210(o) of this part), and required monitoring system quality 

assurance or quality control activities (including, as 
Page 364 of 526 

applicable, calibration checks and required zero and span 

adjustments). A monitoring system malfunction is any sudden, 

infrequent, not reasonably preventable failure of the monitoring 

system to provide valid data. Monitoring system failures that 

are caused in part by poor maintenance or careless operation are 

not malfunctions. You are required to effect monitoring system 

repairs in response to monitoring system malfunctions or out-ofcontrol periods and to return the monitoring system to operation 

as expeditiously as practicable. 

(b) You may not use data recorded during monitoring system 

malfunctions or out-of-control periods, repairs associated with 

monitoring system malfunctions or out-of-control periods, or 

required monitoring system quality assurance or control 

activities in calculations used to report emissions or operating 

levels. You must use all the data collected during all other 

periods in assessing the operation of the control device and 

associated control system. 

(c) Except for periods of monitoring system malfunctions 

or out-of-control periods, repairs associated with monitoring 

system malfunctions or out-of-control periods, and required 

monitoring system quality assurance or quality control 

activities including, as applicable, calibration checks and 

required zero and span adjustments, failure to collect required 

data is a deviation of the monitoring requirements. 
Page 365 of 526 

27. Section 60.2175 is amended by: 

a. Revising the introductory text. 

b. Revising paragraphs (b)(5) and (e). 

c. Removing and reserving paragraphs (c) and (d). 

d. Adding paragraphs (o) through (v). 

§60.2175 What records must I keep?

You must maintain the items (as applicable) as specified in 

paragraphs (a), (b), and (e) through (u) of this section for a 

period of at least 5 years: 

* * * * * 

(b) * * * 

(5) For affected CISWI units that establish operating 

limits for controls other than wet scrubbers under §60.2110(d) 

through (g) or §60.2115, you must maintain data collected for 

all operating parameters used to determine compliance with the 

operating limits. 

* * * * * 

(c) [Reserved] 

(d) [Reserved] 

(e) Identification of calendar dates and times for which 

data show a deviation from the operating limits in table 2 of 

this subpart or a deviation from other operating limits 

established under §60.2110(d) through (g) or §60.2115 with a 
Page 366 of 526 

description of the deviations, reasons for such deviations, and 

a description of corrective actions taken. 

* * * * * 

(o) Maintain records of the annual air pollution control 

device inspections that are required for each CISWI unit subject 

to the emissions limits in table 1 of this subpart or tables 5 

through 8 of this subpart, any required maintenance, and any 

repairs not completed within 10 days of an inspection or the 

timeframe established by the state regulatory agency. 

(p) For continuously monitored pollutants or parameters, 

you must document and keep a record of the following parameters 

measured using continuous monitoring systems. 

(1) All 6-minute average levels of opacity. 

(2) All 1-hour average concentrations of sulfur dioxide 

emissions. 

(3) All 1-hour average concentrations of nitrogen oxides 

emissions. 

(4) All 1-hour average concentrations of carbon monoxide 

emissions. You must indicate which data are CEMS data during 

startup and shutdown. 

(5) All 1-hour average concentrations of particulate matter 

emissions. 

(6) All 1-hour average concentrations of mercury emissions. 
Page 367 of 526 

(7) All 1-hour average concentrations of hydrogen chloride 

emissions. 

(8) All 1-hour average percent oxygen concentrations. 

(9) All 1-hour average PM CPMS readings or particulate 

matter continuous emissions monitor outputs. 

(q) Records indicating use of the bypass stack, including 

dates, times, and durations. 

(r) If you choose to stack test less frequently than 

annually, consistent with §60.2155(a) through (c), you must keep 

annual records that document that your emissions in the previous 

stack test(s) were less than 75 percent of the applicable 

emission limit and document that there was no change in source 

operations including fuel composition and operation of air 

pollution control equipment that would cause emissions of the 

relevant pollutant to increase within the past year. 

(s) Records of the occurrence and duration of each 

malfunction of operation (i.e., process equipment) or the air 

pollution control and monitoring equipment. 

(t) Records of all required maintenance performed on the 

air pollution control and monitoring equipment. 

(u) Records of actions taken during periods of malfunction 

to minimize emissions in accordance with §60.11(d), including 

corrective actions to restore malfunctioning process and air 
Page 368 of 526 

pollution control and monitoring equipment to its normal or 

usual manner of operation. 

(v) For operating units that combust non-hazardous 

secondary materials that have been determined not to be solid 

waste pursuant to §241.3(b)(1) of this chapter, you must keep a 

record which documents how the secondary material meets each of 

the legitimacy criteria under §241.3(d)(1). If you combust a 

fuel that has been processed from a discarded non-hazardous 

secondary material pursuant to §241.3(b)(4) of this chapter, you 

must keep records as to how the operations that produced the 

fuel satisfies the definition of processing in §241.2 and each 

of the legitimacy criteria of §241.3(d)(1) of this chapter. If 

the fuel received a non-waste determination pursuant to the 

petition process submitted under §241.3(c) of this chapter, you 

must keep a record that documents how the fuel satisfies the 

requirements of the petition process. For operating units that 

combust non-hazardous secondary materials as fuel per §241.4, 

you must keep records documenting that the material is a listed 

non-waste under §241.4(a). 

* * * * * 

28. Section 60.2210 is amended by revising paragraph (e) 

and adding paragraphs (k) through (p) to read as follows: 

§60.2210 What information must I include in my annual report?

* * * * * 
Page 369 of 526 

(e) If no deviation from any emission limitation or 

operating limit that applies to you has been reported, a 

statement that there was no deviation from the emission 

limitations or operating limits during the reporting period. 

* * * * * 

(k) If you had a malfunction during the reporting period, 

the compliance report must include the number, duration, and a 

brief description for each type of malfunction that occurred 

during the reporting period and that caused or may have caused 

any applicable emission limitation to be exceeded. The report 

must also include a description of actions taken by an owner or 

operator during a malfunction of an affected source to minimize 

emissions in accordance with §60.11(d), including actions taken 

to correct a malfunction. 

(l) For each deviation from an emission or operating 

limitation that occurs for a CISWI unit for which you are not 

using a continuous monitoring system to comply with the emission 

or operating limitations in this subpart, the annual report must 

contain the following information. 

(1) The total operating time of the CISWI unit at which the 

deviation occurred during the reporting period. 

(2) Information on the number, duration, and cause of 

deviations (including unknown cause, if applicable), as 

applicable, and the corrective action taken. 
Page 370 of 526 

(m) If there were periods during which the continuous 

monitoring system, including the CEMS, was out of control as 

specified in paragraph (o) of this section, the annual report 

must contain the following information for each deviation from 

an emission or operating limitation occurring for a CISWI unit 

for which you are using a continuous monitoring system to comply 

with the emission and operating limitations in this subpart. 

(1) The date and time that each malfunction started and 

stopped. 

(2) The date, time, and duration that each CMS was 

inoperative, except for zero (low-level) and high-level checks. 

(3) The date, time, and duration that each continuous 

monitoring system was out-of-control, including start and end 

dates and hours and descriptions of corrective actions taken. 

(4) The date and time that each deviation started and 

stopped, and whether each deviation occurred during a period of 

malfunction or during another period. 

(5) A summary of the total duration of the deviation during 

the reporting period, and the total duration as a percent of the 

total source operating time during that reporting period. 

(6) A breakdown of the total duration of the deviations 

during the reporting period into those that are due to control 

equipment problems, process problems, other known causes, and 

other unknown causes. 
Page 371 of 526 

(7) A summary of the total duration of continuous 

monitoring system downtime during the reporting period, and the 

total duration of continuous monitoring system downtime as a 

percent of the total operating time of the CISWI unit at which 

the continuous monitoring system downtime occurred during that 

reporting period. 

(8) An identification of each parameter and pollutant that 

was monitored at the CISWI unit. 

(9) A brief description of the CISWI unit. 

(10) A brief description of the continuous monitoring 

system. 

(11) The date of the latest continuous monitoring system 

certification or audit. 

(12) A description of any changes in continuous monitoring 

system, processes, or controls since the last reporting period. 

(n) If there were periods during which the continuous 

monitoring system, including the CEMS, was not out of control as 

specified in paragraph (o) of this section, a statement that 

there were not periods during which the continuous monitoring 

system was out of control during the reporting period. 

(o) A continuous monitoring system is out of control in 

accordance with the procedure in 40 CFR part 60, appendix F of 

this part, as if any of the following occur. 
Page 372 of 526 

(1) The zero (low-level), mid-level (if applicable), or 

high-level calibration drift exceeds two times the applicable 

calibration drift specification in the applicable performance 

specification or in the relevant standard. 

(2) The continuous monitoring system fails a performance 

test audit (e.g., cylinder gas audit), relative accuracy audit, 

relative accuracy test audit, or linearity test audit. 

(3) The continuous opacity monitoring system calibration 

drift exceeds two times the limit in the applicable performance 

specification in the relevant standard. 

(p) For energy recovery units, include the annual heat 

input and average annual heat input rate of all fuels being 

burned in the unit to verify which subcategory of energy 

recovery unit applies. 

29. Section 60.2220 is amended by revising paragraph (c) 

and removing paragraphs (e) and (f) to read as follows: 

§60.2220 What must I include in the deviation report?

* * * * * 

(c) Durations and causes of the following: 

(1) Each deviation from emission limitations or operating 

limits and your corrective actions. 

(2) Bypass events and your corrective actions. 

* * * * * 

30. Section 60.2230 is revised to read as follows: 
Page 373 of 526 

§60.2230 Are there any other notifications or reports that I 

must submit?

(a) Yes. You must submit notifications as provided by 

§60.7. 

(b) If you cease combusting solid waste but continue to 

operate, you must provide 30 days prior notice of the effective 

date of the waste-to-fuel switch, consistent with §60.2145(a). 

The notification must identify: 

(1) The name of the owner or operator of the CISWI unit, 

the location of the source, the emissions unit(s) that will 

cease burning solid waste, and the date of the notice; 

(2) The currently applicable subcategory under this 

subpart, and any 40 CFR part 63 subpart and subcategory that 

will be applicable after you cease combusting solid waste; 

(3) The fuel(s), non-waste material(s) and solid waste(s) 

the CISWI unit is currently combusting and has combusted over 

the past 6 months, and the fuel(s) or non-waste materials the 

unit will commence combusting; 

(4) The date on which you became subject to the currently 

applicable emission limits; 

(5) The date upon which you will cease combusting solid 

waste, and the date (if different) that you intend for any new 

requirements to become applicable (i.e., the effective date of 
Page 374 of 526 

the waste-to-fuel switch), consistent with paragraphs (2) and 

(3)) of this section. 

31. Section 60.2235 is revised to read as follows: 

§60.2235 In what form can I submit my reports?

(a) Submit initial, annual, and deviation reports 

electronically or in paper format, postmarked on or before the 

submittal due dates. 

(b)(1) Within 60 days after the date of completing each 

performance test as required by this subpart, you must submit 

the results of the performance tests required by this subpart to 

EPA’s WebFIRE database by using the Compliance and Emissions 

Data Reporting Interface (CEDRI) that is accessed through EPA’s 

Central Data Exchange (CDX)(www.epa.gov/cdx). Performance test 

data must be submitted in the file format generated through use 

of EPA’s Electronic Reporting Tool (ERT) (see 

http://www.epa.gov/ttn/chief/ert/index.html). Only data 

collected using test methods on the ERT website are subject to 

this requirement for submitting reports electronically to 

WebFIRE. Owners or operators who claim that some of the 

information being submitted for performance tests is 

confidential business information (CBI) must submit a complete 

ERT file including information claimed to be CBI on a compact 

disk, flash drives, or other commonly used electronic storage 

media to EPA. The electronic media must be clearly marked as CBI 
Page 375 of 526 

and mailed to U.S. EPA/OAPQS/CORE CBI Office, Attention: WebFIRE 

Administrator, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. 

The same ERT file with the CBI omitted must be submitted to EPA 

via CDX as described earlier in this paragraph. At the 

discretion of the delegated authority, you must also submit 

these reports, including the confidential business information, 

to the delegated authority in the format specified by the 

delegated authority. For any performance test conducted using 

test methods that are not listed on the ERT website, the owner 

or operator shall submit the reports of the performance test in 

paper submissions to the Administrator. 

(2) Within 60 days after the date of completing each CEMS 

performance evaluation test, as defined in this subpart and 

required by this subpart, you must submit the relative accuracy 

test audit (RATA) data electronically into EPA’s Central Data 

Exchange by using CEDRI as mentioned in paragraph (b)(1) of this 

section. Only RATA pollutants that can be documented with the 

ERT (as listed on the ERT website) are subject to this 

requirement. For any performance evaluations with no 

corresponding RATA pollutants listed on the ERT website, the 

owner or operator shall submit the results of the performance 

evaluation in paper submissions to the Administrator. 

* * * * * 
Page 376 of 526 

32. Section 60.2242 is revised to read as follows: 

§60.2242 Am I required to apply for and obtain a Title V 

operating permit for my unit?

Yes. Each CISWI unit and air curtain incinerator subject to 

standards under this subpart must operate pursuant to a permit 

issued under section 129(e) and Title V of the Clean Air Act. 

* * * * * 

33. Section 60.2250 is revised to read as follows: 

§60.2250 What are the emission limitations for air curtain 

incinerators?

Within 60 days after your air curtain incinerator reaches 

the charge rate at which it will operate, but no later than 180 

days after its initial startup, you must meet the two 

limitations specified in paragraphs (a) and (b) of this section. 

(a) Maintain opacity to less than or equal to 10 percent 

opacity (as determined by the average of three 1-hour blocks 

consisting of ten 6-minute average opacity values), except as 

described in paragraph (b) of this section. 

(b) Maintain opacity to less than or equal to 35 percent 

opacity (as determined by the average of three 1-hour blocks 

consisting of ten 6-minute average opacity values) during the 

startup period that is within the first 30 minutes of operation. 

34. Section 60.2260 is amended by revising paragraph (d) 

to read as follows: 
Page 377 of 526 

§60.2260 What are the recordkeeping and reporting requirements 

for air curtain incinerators?

* * * * * 

(d) You must submit the results (as determined by the 

average of three 1-hour blocks consisting of ten 6-minute 

average opacity values) of the initial opacity tests no later 

than 60 days following the initial test. Submit annual opacity 

test results within 12 months following the previous report. 

* * * * * 

35. Section 60.2265 is amended by: 

a. Adding definitions for “30-day rolling average”, 

“Affirmative defense”, “Annual heat input”, “Average annual heat 

input rate”, “Burn-off oven”, “Bypass stack”, “CEMS data during 

startup and shutdown”, “Chemical recovery unit”, “Continuous 

monitoring system”, “Dry scrubber”, “Energy recovery unit”, 

“Energy recovery unit designed to burn biomass (Biomass)”, 

“Energy recovery unit designed to burn coal (Coal)”, “Energy 

recovery unit designed to burn solid materials (Solids)”, 

“Foundry sand thermal reclamation unit”, “Incinerator”, “Kiln”, 

“Laboratory analysis unit”, “Minimum voltage or amperage”, 

“Opacity”, “Operating day”, “Oxygen analyzer system”, “Oxygen 

trim system”, “Performance evaluation”, “Performance test”, 

“Process change”, “Raw mill”, “Responsible official”, “Small 

remote incinerator”, “Soil treatment unit”, “Solid waste 
Page 378 of 526 

incineration unit,” “Space heater” and “Waste-burning kiln”, in 

alphabetical order. 

b. Revising the definition for “Commercial and industrial 

solid waste incineration (CISWI) unit”, “Cyclonic burn barrel”, 

“dioxin/furans”, “Modification or modified CISWI unit”, “Solid 

waste”, and “Wet scrubber”. 

c. Removing paragraph (3) of the definition for 

“Deviation.” 

d. Removing the definition for “Agricultural waste”, and 

“Commercial or industrial waste.” 

§60.2265 What definitions must I know?

* * * * * 

30-day rolling average means the arithmetic mean of the 

previous 720 hours of valid operating data. Valid data excludes 

periods when this unit is not operating. The 720 hours should be 

consecutive, but not necessarily continuous if operations are 

intermittent. 

Affirmative defense means, in the context of an enforcement 

proceeding, a response or defense put forward by a defendant, 

regarding which the defendant has the burden of proof, and the 

merits of which are independently and objectively evaluated in a 

judicial or administrative proceeding. 

Annual heat input means the heat input for the 12 months 

preceding the compliance demonstration. 
Page 379 of 526 

Average annual heat input rate means annual heat input 

divided by the hours of operation for the 12 months preceding 

the compliance demonstration. 

* * * * * 

Burn-off oven means any rack reclamation unit, part 

reclamation unit, or drum reclamation unit. A burn-off oven is 

not an incinerator, waste-burning kiln, an energy recovery unit 

or a small, remote incinerator under this subpart. 

Bypass stack means a device used for discharging combustion 

gases to avoid severe damage to the air pollution control device 

or other equipment. 

* * * * * 

CEMS data during startup and shutdown means CEMS data 

collected during the first hours of a CISWI unit startup from a 

cold start until waste is fed to the unit and the hours of 

operation following the cessation of waste material being fed to 

CISWI unit during a unit shutdown. For each startup event, the 

length of time that CEMS data may be claimed as being CEMS data 

during startup must be 48 operating hours or less. For each 

shutdown event, the length of time that CEMS data may be claimed 

as being CEMS data during shutdown must be 24 operating hours or 

less. 

Chemical recovery unit means combustion units burning 

materials to recover chemical constituents or to produce 
Page 380 of 526 

chemical compounds where there is an existing commercial market 

for such recovered chemical constituents or compounds. A 

chemical recovery unit is not an incinerator, waste-burning 

kiln, an energy recovery unit or a small, remote incinerator 

under this subpart. The following seven types of units are 

considered chemical recovery units: 

(1) Units burning only pulping liquors (i.e., black liquor) 

that are reclaimed in a pulping liquor recovery process and 

reused in the pulping process. 

(2) Units burning only spent sulfuric acid used to produce 

virgin sulfuric acid. 

(3) Units burning only wood or coal feedstock for the 

production of charcoal. 

(4) Units burning only manufacturing byproduct 

streams/residue containing catalyst metals that are reclaimed 

and reused as catalysts or used to produce commercial grade 

catalysts. 

(5) Units burning only coke to produce purified carbon 

monoxide that is used as an intermediate in the production of 

other chemical compounds. 

(6) Units burning only hydrocarbon liquids or solids to 

produce hydrogen, carbon monoxide, synthesis gas, or other gases 

for use in other manufacturing processes. 

(7) Units burning only photographic film to recover silver. 
Page 381 of 526 

* * * * * 

Commercial and industrial solid waste incineration (CISWI) 

unit means any distinct operating unit of any commercial or 

industrial facility that combusts, or has combusted in the 

preceding 6 months, any solid waste as that term is defined in 

40 CFR part 241. If the operating unit burns materials other 

than traditional fuels as defined in §241.2 that have been 

discarded, and you do not keep and produce records as required 

by §60.2175(v), the material is a solid waste and the operating 

unit is a CISWI unit. While not all CISWI units will include all 

of the following components, a CISWI unit includes, but is not 

limited to, the solid waste feed system, grate system, flue gas 

system, waste heat recovery equipment, if any, and bottom ash 

system. The CISWI unit does not include air pollution control 

equipment or the stack. The CISWI unit boundary starts at the 

solid waste hopper (if applicable) and extends through two 

areas: The combustion unit flue gas system, which ends 

immediately after the last combustion chamber or after the waste 

heat recovery equipment, if any; and the combustion unit bottom 

ash system, which ends at the truck loading station or similar 

equipment that transfers the ash to final disposal. The CISWI 

unit includes all ash handling systems connected to the bottom 

ash handling system. 

* * * * * 
Page 382 of 526 

Continuous monitoring system (CMS) means the total 

equipment, required under the emission monitoring sections in 

applicable subparts, used to sample and condition (if 

applicable), to analyze, and to provide a permanent record of 

emissions or process parameters. A particulate matter continuous 

parameter monitoring system (PM CPMS) is a type of CMS. 

* * * * * 

Cyclonic burn barrel means a combustion device for waste 

materials that is attached to a 55 gallon, openhead drum. The 

device consists of a lid, which fits onto and encloses the drum, 

and a blower that forces combustion air into the drum in a 

cyclonic manner to enhance the mixing of waste material and air. 

A cyclonic burn barrel is not an incinerator, waste-burning 

kiln, an energy recovery unit or a small, remote incinerator 

under this subpart. 

Deviation means any instance in which an affected source 

subject to this subpart, or an owner or operator of such a 

source: 

(1) Fails to meet any requirement or obligation established 

by this subpart, including but not limited to any emission 

limitation, operating limit, or operator qualification and 

accessibility requirements. 

(2) Fails to meet any term or condition that is adopted to 

implement an applicable requirement in this subpart and that is 
Page 383 of 526 

included in the operating permit for any affected source 

required to obtain such a permit. 

Dioxins/furans means tetra- through octa-chlorinated 

dibenzo-p-dioxins and dibenzofurans. 

* * * * * 

Dry scrubber means an add-on air pollution control system 

that injects dry alkaline sorbent (dry injection) or sprays an 

alkaline sorbent (spray dryer) to react with and neutralize acid 

gas in the exhaust stream forming a dry powder material. Sorbent 

injection systems in fluidized bed boilers and process heaters 

are included in this definition. A dry scrubber is a dry control 

system. 

* * * * * 

Energy recovery unit means a combustion unit combusting 

solid waste (as that term is defined by the Administrator in 40 

CFR part 241) for energy recovery. Energy recovery units include 

units that would be considered boilers and process heaters if 

they did not combust solid waste. 

Energy recovery unit designed to burn biomass (Biomass)

means an energy recovery unit that burns solid waste, biomass, 

and non-coal solid materials but less than 10 percent coal, on a 

heat input basis on an annual average, either alone or in 

combination with liquid waste, liquid fuel or gaseous fuels. 
Page 384 of 526 

Energy recovery unit designed to burn coal (Coal) means an 

energy recovery unit that burns solid waste and at least 10 

percent coal on a heat input basis on an annual average, either 

alone or in combination with liquid waste, liquid fuel or 

gaseous fuels. 

Energy recovery unit designed to burn liquid waste 

materials and gas (Liquid/gas) means an energy recovery unit 

that burns a liquid waste with liquid or gaseous fuels not 

combined with any solid fuel or waste materials. 

Energy recovery unit designed to burn solid materials 

(Solids) includes energy recovery units designed to burn coal 

and energy recovery units designed to burn biomass. 

* * * * * 

Foundry sand thermal reclamation unit means a type of part 

reclamation unit that removes coatings that are on foundry sand. 

A foundry sand thermal reclamation unit is not an incinerator, 

waste-burning kiln, an energy recovery unit or a small, remote 

incinerator under this subpart. 

* * * * * 

Incinerator means any furnace used in the process of 

combusting solid waste (as that term is defined by the 

Administrator in 40 CFR part 241) for the purpose of reducing 

the volume of the waste by removing combustible matter. 

Incinerator designs include single chamber and two-chamber. 
Page 385 of 526 

Kiln means an oven or furnace, including any associated 

preheater or precalciner devices, used for processing a 

substance by burning, firing or drying. Kilns include cement 

kilns that produce clinker by heating limestone and other 

materials for subsequent production of Portland Cement. 

Laboratory analysis unit means units that burn samples of 

materials for the purpose of chemical or physical analysis. A 

laboratory analysis unit is not an incinerator, waste-burning 

kiln, an energy recovery unit or a small, remote incinerator 

under this subpart. 

* * * * * 

Minimum voltage or amperage means 90 percent of the lowest 

test-run average voltage or amperage to the electrostatic 

precipitator measured during the most recent particulate matter 

or mercury performance test demonstrating compliance with the 

applicable emission limits. 

Modification or modified CISWI unit means a CISWI unit that 

has been changed later than [THE DATE SIX MONTHS AFTER 

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and that 

meets one of two criteria: 

(1) The cumulative cost of the changes over the life of the 

unit exceeds 50 percent of the original cost of building and 

installing the CISWI unit (not including the cost of land) 

updated to current costs (current dollars). To determine what 
Page 386 of 526 

systems are within the boundary of the CISWI unit used to 

calculate these costs, see the definition of CISWI unit. 

(2) Any physical change in the CISWI unit or change in the 

method of operating it that increases the amount of any air 

pollutant emitted for which section 129 or section 111 of the 

Clean Air Act has established standards. 

Opacity means the degree to which emissions reduce the 

transmission of light and obscure the view of an object in the 

background. 

Operating day means a 24-hour period between 12:00 midnight 

and the following midnight during which any amount of solid 

waste is combusted at any time in the CISWI unit. 

Oxygen analyzer system means all equipment required to 

determine the oxygen content of a gas stream and used to monitor 

oxygen in the boiler or process heater flue gas, boiler/process 

heater, firebox, or other appropriate location. This definition 

includes oxygen trim systems and certified oxygen CEMS. The 

source owner or operator is responsible to install, calibrate, 

maintain, and operate the oxygen analyzer system in accordance 

with the manufacturer’s recommendations. 

Oxygen trim system means a system of monitors that is used 

to maintain excess air at the desired level in a combustion 

device. A typical system consists of a flue gas oxygen and/or 
Page 387 of 526 

carbon monoxide monitor that automatically provides a feedback 

signal to the combustion air controller. 

* * * * * 

Performance evaluation means the conduct of relative 

accuracy testing, calibration error testing, and other 

measurements used in validating the continuous monitoring system 

data. 

Performance test means the collection of data resulting 

from the execution of a test method (usually three emission test 

runs) used to demonstrate compliance with a relevant emission 

standard as specified in the performance test section of the 

relevant standard. 

Process change means a significant permit revision, but 

only with respect to those pollutant-specific emission units for 

which the proposed permit revision is applicable, including but 

not limited to a change in the air pollution control devices 

used to comply with the emission limits for the affected CISWI 

unit (e.g., change in the sorbent used for activated carbon 

injection). 

* * * * * 

Raw mill means a ball or tube mill, vertical roller mill or 

other size reduction equipment, that is not part of an in-line 

kiln/raw mill, used to grind feed to the appropriate size. 

Moisture may be added or removed from the feed during the 
Page 388 of 526 

grinding operation. If the raw mill is used to remove moisture 

from feed materials, it is also, by definition, a raw material 

dryer. The raw mill also includes the air separator associated 

with the raw mill. 

* * * * * 

 Responsible official means one of the following: 

(1) For a corporation: a president, secretary, treasurer, or 

vice-president of the corporation in charge of a principal 

business function, or any other person who performs similar 

policy or decision-making functions for the corporation, or a 

duly authorized representative of such person if the 

representative is responsible for the overall operation of one 

or more manufacturing, production, or operating facilities 

applying for or subject to a permit and either: 

(i) The facilities employ more than 250 persons or have gross 

annual sales or expenditures exceeding $25 million (in second 

quarter 1980 dollars); or 

(ii) The delegation of authority to such representatives is 

approved in advance by the permitting authority; 

(2) For a partnership or sole proprietorship: a general partner 

or the proprietor, respectively; 

(3) For a municipality, State, Federal, or other public agency: 

Either a principal executive officer or ranking elected 

official. For the purposes of this part, a principal executive 
Page 389 of 526 

officer of a Federal agency includes the chief executive officer 

having responsibility for the overall operations of a principal 

geographic unit of the agency (e.g., a Regional Administrator of 

EPA); or 

(4) For affected facilities: 

(i) The designated representative in so far as actions, 

standards, requirements, or prohibitions under title IV of the 

Clean Air Act or the regulations promulgated thereunder are 

concerned; or 

(ii) The designated representative for any other purposes under 

part 60. 

* * * * * 

Small, remote incinerator means an incinerator that 

combusts solid waste (as that term is defined by the 

Administrator in 40 CFR part 241) and combusts 3 tons per day or 

less solid waste and is more than 25 miles driving distance to 

the nearest municipal solid waste landfill. 

Soil treatment unit means a unit that thermally treats 

petroleum-contaminated soils for the sole purpose of site 

remediation. A soil treatment unit may be direct-fired or 

indirect fired. A soil treatment unit is not an incinerator, 

waste-burning kiln, an energy recovery unit or a small, remote 

incinerator under this subpart. 
Page 390 of 526 

Solid waste means the term solid waste as defined in 40 CFR 

241.2. 

Solid waste incineration unit means a distinct operating 

unit of any facility which combusts any solid waste (as that 

term is defined by the Administrator in 40 CFR part 241) 

material from commercial or industrial establishments or the 

general public (including single and multiple residences, hotels 

and motels). Such term does not include incinerators or other 

units required to have a permit under section 3005 of the Solid 

Waste Disposal Act. The term "solid waste incineration unit" 

does not include: (A) materials recovery facilities (including 

primary or secondary smelters) which combust waste for the 

primary purpose of recovering metals; (B) qualifying small power 

production facilities, as defined in section 3(17)(C) of the 

Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying 

cogeneration facilities, as defined in section 3(18)(B) of the 

Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous 

waste (such as units which burn tires or used oil, but not 

including refuse-derived fuel) for the production of electric 

energy or in the case of qualifying cogeneration facilities 

which burn homogeneous waste for the production of electric 

energy and steam or forms of useful energy (such as heat) which 

are used for industrial, commercial, heating or cooling 

purposes; or (C) air curtain incinerators provided that such 
Page 391 of 526 

incinerators only burn wood wastes, yard wastes, and clean 

lumber and that such air curtain incinerators comply with 

opacity limitations to be established by the Administrator by 

rule. 

Space heater means a usually portable appliance for heating 

a relatively small area. A space heater is not an incinerator, 

waste-burning kiln, an energy recovery unit or a small, remote 

incinerator under this subpart. 

* * * * * 

Waste-burning kiln means a kiln that is heated, in whole or 

in part, by combusting solid waste (as that term is defined by 

the Administrator pursuant to subtitle D of RCRA). Secondary 

materials used in Portland cement kilns shall not be deemed to 

be combusted unless they are introduced into the combustion zone 

in the hot end of the kiln or into the combustion zone of the 

precalciner or riser burner (if installed). 

Wet scrubber means an add-on air pollution control device 

that uses an aqueous or alkaline scrubbing liquor to collect 

particulate matter (including nonvaporous metals and condensed 

organics) and/or to absorb and neutralize acid gases. 

* * * * * 

36. Table 1 of subpart CCCC is revised to read as follows: 

Table 1 to Subpart CCCC of Part 60—Emission Limitations for 

CISWI Units for Which Construction Is Commenced After November 

30, 1999, but no later than June 4, 2010, or for Which 
Page 392 of 526 

Modification or Reconstruction Is Commenced on or After June 1, 

2001, but no later than [THE DATE 6 MONTHS AFTER PUBLICATION OF 

THE FINAL RULE IN THE FEDERAL REGISTER]. 

For the air 

pollutant

You must 

meet this 

emission 

limitationa

Using this averaging 

time 

And determining 

compliance 

using this 

method 

Cadmium 0.004 

milligrams 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic meter 

per run) 

Performance 

test (Method 29 

at 40 CFR part 

60, appendix A8). 

Carbon 

Monoxide 

157 parts 

per million 

by dry 

volume 

3-run average (1 hour 

minimum sample time 

per run) 

Performance 

test (Method 10 

at 40 CFR part 

60, appendix A4). 

Dioxin/Furan 

(toxic 

equivalency 

basis) 

0.41 

nanograms 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 4 dry 

standard cubic meters 

per run) 

Performance 

test (Method 23 

of appendix A-7

of this part). 

Hydrogen 

Chloride 

62 parts per 

million by 

dry volume 

3-run average (For 

Method 26, collect a 

minimum volume of 120 

liters per run. For 

Method 26A, collect a 

minimum volume of 1 

dry standard cubic 

meter per run) 

Performance 

test (Method 26 

or 26A at 40 

CFR part 60, 

appendix A-8). 

Lead 0.04 

milligrams 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic meter 

per run) 

Performance 

test (Method 29 

at 40 CFR part 

60, appendix A8). 

Mercury 0.47 

milligrams 

per dry 

standard 

cubic meter 

3-run average (For 

Method 29 and ASTM 

D6784-02 (Reapproved 

2008)b, collect a 

minimum volume of 1 

dry standard cubic 

meter per run. For 

Performance 

test (Method 29 

or 30B at 40 

CFR part 60, 

appendix A-8) 

or ASTM D6784-

02 (Reapproved 
Page 393 of 526 

For the air 

pollutant

You must 

meet this 

emission 

limitationa

Using this averaging 

time 

And determining 

compliance 

using this 

method 

Method 30B, collect a 

minimum sample as 

specified in Method 

30B at 40 CFR part 

60, appendix A) 

2008)b. 

Opacity 10 percent Three 1-hour blocks 

consisting of ten 6-

minute averages 

opacity values 

Performance 

test (Method 9 

at 40 CFR part 

60, appendix A4). 

Nitrogen 

Oxides 

388 parts 

per million 

by dry 

volume 

3-run average (for 

Method 7E, 1 hour 

minimum sample time 

per run) 

Performance 

test (Method 7 

or 7E at 40 CFR 

part 60, 

appendix A-4). 

. 

Particulate 

matter 

70 

milligrams 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic meter 

per run) 

Performance 

test (Method 5 

or 29 at 40 CFR 

part 60, 

appendix A-3 or 

A-8). 

Sulfur 

Dioxide 

20 parts per 

million by 

dry volume 

3-run average (For 

Method 6, collect a 

minimum volume of 20 

liters per run. For 

Method 6C, collect 

sample for a minimum 

duration of 1 hour 

per run) 

Performance 

test (Method 6 

or 6C at 40 CFR 

part 60, 

appendix A-4. 

a All emission limitations (except for opacity) are measured at 

7 percent oxygen, dry basis at standard conditions. 

b Incorporated by reference, see §60.17. 
Page 394 of 526 

37. Table 4 of subpart CCCC is amended by revising the 

entry for “Annual Report” and “Emission limitation or operating 

limit deviation report.” 

Table 4 to Subpart CCCC of Part 60—Summary of Reporting 

Requirementsa

Report Due date Contents Reference

* * * * * * *

Annual 

report

No later than 12 

months following the 

submission of the 

initial test report. 

Subsequent reports 

are to be submitted 

no more than 12 

months following the 

previous report

• Name and address 

• Statement and signature 

by responsible official 

• Date of report 

• Values for the operating 

limits 

• Highest recorded 3-hour 

average and the lowest 3-

hour average, as 

applicable, for each 

operating parameter 

recorded for the calendar 

year being reported 

• If a performance test 

was conducted during the 

reporting period, the 

results of the test 

• If a performance test 

was not conducted during 

the reporting period, a 

statement that the 

requirements of 

§60.2155(a) were met 

• Documentation of periods 

when all qualified CISWI 

unit operators were 

unavailable for more than 

8 hours but less than 2 

weeks 

• If you are conducting 

performance tests once 

every 3 years consistent 

with §60.2155(a), the date 

of the last 2 performance 

tests, a comparison of the 

emission level you 

§§60.2205 

and 

60.2210
Page 395 of 526 

Report Due date Contents Reference

achieved in the last 2 

performance tests to the 

75 percent emission limit 

threshold required in 

§60.2155(a) and a 

statement as to whether 

there have been any 

operational changes since 

the last performance test 

that could increase 

emissions. 

* * * * *

Emission 

limitation 

or operating 

limit 

deviation 

report

By August 1 of that 

year for data 

collected during the 

first half of the 

calendar year. By 

February 1 of the 

following year for 

data collected 

during the second 

half of the calendar 

year

• Dates and times of 

deviation 

• Averaged and recorded 

data for those dates 

• Duration and causes of 

each deviation and the 

corrective actions taken 

• Copy of operating limit 

monitoring data and any 

test reports 

• Dates, times and causes 

for monitor downtime 

incidents

§60.2215 

and 

60.2220

* * * * *

a This table is only a summary, see the referenced sections of the 

rule for the complete requirements. 

38. Table 5 to Subpart CCCC is added to read as follows: 

Table 5 to Subpart CCCC of Part 60—Emission Limitations for 

Incinerators That Commenced Construction After June 4, 2010, Or 

That Commenced Reconstruction or Modification After [THE DATE 6 

MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL 

REGISTER]

For the air 

pollutant 

You must meet 

this emission

limitationa

Using this 

averaging time 

And determining 

compliance using 

this method 

Cadmium 0.0023 

milligrams per 

dry standard 

3-run average 

(collect a minimum 

volume of 4 dry 

Performance test 

(Method 29 at 40 

CFR part 60, 
Page 396 of 526 

For the air 

pollutant 

You must meet 

this emission

limitationa

Using this 

averaging time 

And determining 

compliance using 

this method 

cubic meter standard cubic 

meter per run) 

appendix A-8 of 

this part). 

Use ICPMS for 

the analytical 

finish. 

Carbon 

Monoxide 

17 parts per 

million by dry 

volume 

3-run average (1 

hour minimum sample 

time per run) 

Performance test 

(Method 10 at 40 

CFR part 60, 

appendix A-4). 

Dioxin/furan 

(Total Mass 

Basis) 

0.58 nanograms 

per dry 

standard cubic 

meterc

3-run average 

(collect a minimum 

volume of 4 dry 

standard cubic 

meter per run) 

Performance test 

(Method 23 at 40 

CFR part 

60,appendix A7). 

Dioxin/furan 

(toxic 

equivalency 

basis) 

0.13 nanograms 

per dry 

standard cubic 

meter 

3-run average 

(collect a minimum 

volume of 4 dry 

standard cubic 

meter per run) 

Performance test 

(Method 23 at 40 

CFR part 

60,appendix A7). 

Hydrogen 

Chloride 

0.091 part per 

million by dry 

volume 

3-run average (For 

Method 26, collect 

a minimum volume of 

360 liters per run. 

For Method 26A, 

collect a minimum 

volume of 3 dry 

standard cubic 

meter per run) 

Performance test 

(Method 26 or 

26A at 40 CFR 

part 60, 

appendix A-8). 

Lead 0.015 

milligrams per 

dry standard 

cubic meterc

3-run average 

(collect a minimum 

volume of 4 dry 

standard cubic 

meter per run) 

Performance test 

(Method 29 of 

appendix A-8 at 

40 CFR part 60). 

Use ICPMS for 

the analytical 

finish. 

Mercury 0.00084 

milligrams per 

dry standard 

cubic meterc

3-run average 

(collect enough 

volume to meet a 

detection limit 

Performance test 

(Method 29 or 

30B at 40 CFR 

part 60, 
Page 397 of 526 

For the air 

pollutant 

You must meet 

this emission

limitationa

Using this 

averaging time 

And determining 

compliance using 

this method 

data quality 

objective of 0.03 

ug/dry standard 

cubic meter) 

appendix A-8) or 

ASTM D6784-02 

(Reapproved 

2008)b. 

Nitrogen 

Oxides 

23 parts per 

million dry 

volume 

3-run average (for 

Method 7E, 1 hour 

minimum sample time 

per run) 

Performance test 

(Method 7 or 7E 

at 40 CFR part 

60, appendix A4). 

Particulate 

matter 

(filterable) 

18 milligrams 

per dry 

standard cubic 

meter 

3-run average 

(collect a minimum 

volume of 2 dry 

standard cubic 

meters per run) 

Performance test 

(Method 5 or 29 

at 40 CFR part 

60, appendix A-3

or appendix A-8 

at 40 CFR part 

60). 

Sulfur 

dioxide 

11 parts per 

million dry 

volume 

3-run average (1 

hour minimum sample 

time per run) 

Performance test 

(Method 6 or 6C 

at 40 CFR part 

60, appendix A4. 

Fugitive ash Visible 

emissions for 

no more than 5 

percent of the 

hourly 

observation 

period 

Three 1-hour 

observation periods

Visible emission 

test (Method 22 

at 40 CFR part 

60, appendix A7). 

a All emission limitations are measured at 7 percent oxygen, dry 

basis at standard conditions. For dioxins/furans, you must meet 

either the Total Mass Limit or the toxic equivalency basis 

limit. 

b Incorporated by reference, see §60.17. 

c If you are conducting stack tests to demonstrate compliance 

and your performance tests for this pollutant for at least 2 

consecutive years show that your emissions are at or below this 

limit, you can skip testing according to §60.2155 if all of the 

other provision of §60.2155 are met. For all other pollutants 

that do not contain a footnote “c”, your performance tests for 

this pollutant for at least 2 consecutive years must show that 
Page 398 of 526 

your emissions are at or 75 percent of this limit in order to 

qualify for skip testing. 

39. Table 6 to Subpart CCCC is added to read as follows: 

Table 6 to Subpart CCCC of Part 60—Emission Limitations for 

Energy Recovery Units That Commenced Construction After June 4, 

2010, Or That Commenced Reconstruction or Modification After 

[THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE 

FEDERAL REGISTER]

For the air 

pollutant 

You must meet this 

emission 

limitationa Using this 

averaging 

time 

And determining 

compliance 

using this 

Liquid/Gas Solids method 

Cadmium 0.023 

milligrams 

per dry 

standard 

cubic meter

Biomass -

0.0014 

milligrams 

per dry 

standard 

cubic meterc

3-run average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic meters 

per run) 

Performance 

test (Method 29 

at 40 CFR part 

60, appendix A8). Use ICPMS 

for the 

analytical 

finish. Coal – 

0.058 

milligrams 

per dry 

standard 

cubic meter 

Carbon 

monoxide 

35 parts 

per million 

dry volume 

Biomass – 

240 parts 

per million 

dry volume 

3-run average 

(1 hour 

minimum 

sample time 

per run) 

Performance 

test (Method 10 

at 40 CFR part 

60, appendix A4). Coal – 95 

parts per 

million dry 

volume 

Dioxins/furans 

(Total Mass 

Basis) 

No Total 

Mass Basis 

limit, must 

meet the 

toxic 

equivalency 

Biomass - 

0.52 

nanograms 

per dry 

standard 

cubic meterc

3-run average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic meters) 

Performance 

test (Method 23 

at 40 CFR part 

60, appendix A7). 
Page 399 of 526 

For the air 

pollutant 

You must meet this 

emission 

limitationa

Using this 

averaging 

time 

And determining 

compliance 

using this 

th d

basis limit 

below 

Coal – 0.51 

nanograms 

per dry 

standard 

cubic meterc

Dioxins/furans 

(toxic 

equivalency 

basis) 

0.093 

nanograms 

per dry 

standard 

cubic meterc

Biomass - 

0.076 

nanograms 

per dry 

standard 

cubic meterc

3-run average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic meters 

per run) 

Performance 

test (Method 23 

of appendix A-7

of this part). 

Coal - 

0.075 

nanograms 

per dry 

standard 

cubic meterc

Hydrogen 

chloride 

14 parts 

per million 

dry volume 

Biomass - 

0.20 parts 

per million 

dry volume 

3-run average 

(For Method 

26, collect a 

minimum 

volume of 360 

liters per 

run. For 

Method 26A, 

collect a 

minimum 

volume of 3 

dry standard 

cubic meters 

per run) 

Performance 

test (Method 26 

or 26A at 40 

CFR part 60, 

appendix A-8). 

Coal – 

21 parts 

per million 

dry volume 

Lead 0.096 

milligrams 

per dry 

standard 

cubic meter

Biomass -

0.014 

milligrams 

per dry 

standard 

cubic meterc

3-run average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic meters 

Performance 

test (Method 29 

at 40 CFR part 

60, appendix A8). Use ICPMS 

for the 
Page 400 of 526 

For the air 

pollutant 

You must meet this 

emission 

limitationa

Using this 

averaging 

time 

And determining 

compliance 

using this 

th d

Coal -0.013 

milligrams 

per dry 

standard 

cubic meterc

per run) analytical 

finish. 

Mercury 0.00091 

milligrams 

per dry 

standard 

cubic meterc

Biomass - 

0.0022 

milligrams 

per dry 

standard 

cubic meter 

3-run average 

(collect 

enough volume 

to meet an 

in-stack 

detection 

limit data 

quality 

objective of 

0.03 ug/dscm) 

Performance 

test (Method 29 

or 30B at 40 

CFR part 60, 

appendix A-8) 

or ASTM D6784-

02 (Reapproved 

Coal - 2008)b. 0.0028 

milligrams 

per dry 

standard 

cubic meter 

Oxides of 

nitrogen 

76 parts 

per million 

dry volume 

Biomass – 

290 parts 

per million 

dry volume 

3-run average 

(for Method 

7E, 1 hour 

minimum 

sample time 

per run) 

Performance 

test (Method 7 

or 7E at 40 CFR 

part 60, 

appendix A-4). Coal – 340 

parts per 

million dry 

volume 
Page 401 of 526 

For the air 

pollutant 

You must meet this 

emission 

limitationa

Using this 

averaging 

time 

And determining 

compliance 

using this 

th d

Particulate 

matter 

(filterable) 

110 

milligrams 

per dry 

standard 

cubic meter

Biomass - 

5.1 

milligrams 

per dry 

standard 

cubic meter 

3-run average 

(collect a 

minimum 

volume of 1 

dry standard 

cubic meter 

per run) 

Performance 

test (Method 5 

or 29 at 40 CFR 

part 60, 

appendix A-3 or 

appendix A-8) 

if the unit has 

an annual 

average heat 

input rate less 

than 250 

MMBtu/hr; or PM 

CPMS (as 

specified in 

§60.2145(x)) if 

the unit has an 

annual average 

heat input rate

equal to or 

greater than 

250 MMBtu/hr. 

Coal - 60 

milligrams 

per dry 

standard 

cubic meter 

Sulfur dioxide 720 parts 

per million 

dry volume 

Biomass – 

7.3 parts 

per million 

dry volume 

3-run average 

(for Method 

6, collect a 

minimum of 60 

liters, for 

Method 6C, 1 

hour minimum 

sample time 

per run) 

Performance 

test (Method 6 

or 6C at 40 CFR 

part 60, 

appendix A-4. Coal – 650 

parts per 

million dry 

volume 
Page 402 of 526 

For the air 

pollutant 

You must meet this 

emission 

limitationa

Using this 

averaging 

time 

And determining 

compliance 

using this 

th d

Fugitive ash Visible 

emissions 

for no more 

than 5 

percent of 

the hourly 

observation 

period 

Visible 

emissions 

for no more 

than 5 

percent of 

the hourly 

observation 

period 

Three 1-hour 

observation 

periods 

Visible 

emission test 

(Method 22 at 

40 CFR part 60, 

appendix A-7). 

a All emission limitations are measured at 7 percent oxygen, dry 

basis at standard conditions. For dioxins/furans, you must meet 

either the Total Mass Basis limit or the toxic equivalency basis 

limit. 

b Incorporated by reference, see §60.17. 

c If you are conducting stack tests to demonstrate compliance 

and your performance tests for this pollutant for at least 2 

consecutive years show that your emissions are at or below this 

limit, you can skip testing according to §60.2155 if all of the 

other provision of §60.2155 are met. For all other pollutants 

that do not contain a footnote “c”, your performance tests for 

this pollutant for at least 2 consecutive years must show that 

your emissions are at or 75 percent of this limit in order to 

qualify for skip testing. 

40. Table 7 to Subpart CCCC is added to read as follows: 

Table 7 to Subpart CCCC of Part 60—Emission Limitations for 

Waste-burning Kilns That Commenced Construction After June 4, 

2010, or Reconstruction or Modification After [THE DATE 6 MONTHS 

AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] 

For the air 

pollutant 

You must meet 

this emission 

limitationa

Using this 

averaging 

time 

And determining 

compliance using 

this method 

Cadmium 0.0014 

milligrams per 

dry standard 

cubic meterb

3-run average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic meters 

per run) 

Performance test 

(Method 29 at 40 

CFR part 60, 

appendix A-8). Use 

ICPMS for the 

analytical finish. 
Page 403 of 526 

For the air 

pollutant 

You must meet 

this emission 

limitationa

Using this 

averaging 

time 

And determining 

compliance using 

this method 

Carbon monoxide 90 (long kilns) 

/ 190 

(preheater / 

precalciner) 

parts per 

million dry 

volume 

3-run average 

(1 hour 

minimum 

sample time 

per run) 

Performance test 

(Method 10 at 40 

CFR part 60, 

appendix A-4). 

Dioxins/furans 

(total mass 

basis) 

0.51 nanograms 

per dry 

standard cubic 

meterb

3-run average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic meters 

per run) 

Performance test 

(Method 23 at 40 

CFR part 60, 

appendix A-7). 

Dioxins/furans 

(toxic 

equivalency 

basis) 

0.075 nanograms 

per dry 

standard cubic 

meterb

3-run average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic meters)

Performance test 

(Method 23 at 40 

CFR part 60, 

appendix A-7). 

Hydrogen 

chloride 

3.0 parts per 

million dry 

volumeb

3-run average 

(1 hour 

minimum 

sample time 

per run) or 

30-day 

rolling 

average if 

HCl CEMS are 

used 

Performance test 

(Method 321 at 40 

CFR part 63, 

appendix A) or HCl 

CEMS if a wet 

scrubber or dry 

scrubber is not 

used. 

Lead 0.014 

milligrams per 

dry standard 

cubic meterb

3-run average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic meters)

Performance test 

(Method 29 at 40 

CFR part 60, 

appendix A-8). Use 

ICPMS for the 

analytical finish. 

Mercury 0.0037 

milligrams per 

dry standard 

30-day 

rolling 

average 

Mercury CEMS or 

sorbent trap 

monitoring system 
Page 404 of 526 

For the air 

pollutant 

You must meet 

this emission 

limitationa

Using this 

averaging 

time 

And determining 

compliance using 

this method 

cubic meter (performance 

specification 12A 

or 12B, 

respectively, of 

appendix B of this 

part.) 

Oxides of 

nitrogen 

200 parts per 

million dry 

volume 

30-day 

rolling 

average 

NOx Continuous 

Emissions 

Monitoring System 

(performance 

specification 2 of 

appendix B and 

procedure 1 of 

appendix F of this 

part). 

Particulate 

matter 

(filterable) 

3.2 milligrams 

per dry 

standard cubic 

meter 

30-day 

rolling 

average 

PM CPMS (as 

specified in 

§60.2145(x)) 

Sulfur dioxide 130 parts per 

million dry 

volume 

30-day 

rolling 

average 

Sulfur dioxide 

Continuous 

Emissions 

Monitoring System 

(performance 

specification 2 of 

appendix B and 

procedure 1 of 

appendix F of this 

part). 

a All emission limitations are measured at 7 percent oxygen, dry 

basis at standard conditions. For dioxins/furans, you must meet 

either the total mass basis limit or the toxic equivalency basis 

limit. 

b If you are conducting stack tests to demonstrate compliance 

and your performance tests for this pollutant for at least 2 

consecutive years show that your emissions are at or below this 

limit, you can skip testing according to §60.2155 if all of the 

other provision of §60.2155 are met. For all other pollutants 

that do not contain a footnote “b”, your performance tests for 

this pollutant for at least 2 consecutive years must show that 
Page 405 of 526 

your emissions are at or 75 percent of this limit in order to 

qualify for skip testing. 

41. Table 8 to Subpart CCCC is added to read as follows: 

Table 8 to Subpart CCCC of Part 60—Emission Limitations for 

Small, Remote Incinerators That Commenced Construction After 

June 4, 2010, Or That Commenced Reconstruction or Modification 

After [THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN 

THE FEDERAL REGISTER] 

For the air 

pollutant 

You must meet 

this emission

limitationa

Using this averaging 

time 

And determining 

compliance 

using this 

method 

Cadmium 0.61 

milligrams 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic meter 

per run) 

Performance 

test (Method 29 

at 40 CFR part 

60, appendix A8). 

Carbon monoxide 13 parts per 

million dry 

volume 

3-run average (1 

hour minimum sample 

time per run) 

Performance 

test (Method 10 

at 40 CFR part 

60, appendix A4). 

Dioxins/furans 

(total mass 

basis) 

1,200 

nanograms per 

dry standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic meter 

per run) 

Performance 

test (Method 23 

at 40 CFR part 

60, appendix A7). 

Dioxins/furans 

(toxic 

equivalency 

basis) 

31 nanograms 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic meter 

per run) 

Performance 

test (Method 23 

at 40 CFR part 

60, appendix A7). 

Hydrogen 

chloride 

200 parts per 

million by 

dry volume 

3-run average (For 

Method 26, collect a 

minimum volume of 60 

liters per run. For 

Method 26A, collect 

a minimum volume of 

1 dry standard cubic 

meter per run) 

Performance 

test (Method 26 

or 26A at 40 

CFR part 60, 

appendix A-8). 

Lead 0.26 3-run average Performance 
Page 406 of 526 

For the air 

pollutant 

You must meet 

this emission

limitationa

Using this averaging 

time 

And determining 

compliance 

using this 

method 

milligrams 

per dry 

standard 

cubic meter 

(collect a minimum 

volume of 1 dry 

standard cubic) 

test (Method 29 

at 40 CFR part 

60,appendix A8). Use ICPMS 

for the 

analytical 

finish. 

Mercury 0.0035 

milligrams 

per dry 

standard 

cubic meter 

3-run average (For 

Method 29 and ASTM 

D6784-02 (Reapproved 

2008)b, collect a 

minimum volume of 2 

dry standard cubic 

meters per run. For 

Method 30B, collect 

a minimum volume as 

specified in Method 

30B at 40 CFR part 

60, appendix A) 

Performance 

test (Method 29 

or 30B at 40 

CFR part 60, 

appendix A-8) 

or ASTM D6784-

02 (Reapproved 

2008)b. 

Oxides of 

nitrogen 

78 parts per 

million dry 

volume 

3-run average (for 

Method 7E, 1 hour 

minimum sample time 

per run) 

Performance 

test (Method 7 

or 7E at 40 CFR 

part 60, 

appendix A-4). 

Particulate 

matter 

(filterable) 

230 

milligrams 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic 

meter) 

Performance 

test (Method 5 

or 29 at 40 CFR 

part 60, 

appendix A-3 or 

appendix A-8). 

Sulfur dioxide 1.2 parts per 

million dry 

volume 

3-run average (1 

hour minimum sample 

time per run) 

Performance 

test (Method 6 

or 6c at 40 CFR 

part 60, 

appendix A-4. 

Fugitive ash Visible 

emissions for 

no more than 

5 percent of 

Three 1-hour 

observation periods 

Visible 

emission test 

(Method 22 at 

40 CFR part 60, 
Page 407 of 526 

For the air 

pollutant 

You must meet 

this emission

limitationa

Using this averaging 

time 

And determining 

compliance 

using this 

method 

the hourly 

observation 

period 

appendix A-7). 

a All emission limitations (except for opacity) are measured at 

7 percent oxygen, dry basis at standard conditions. For 

dioxins/furans, you must meet either the total mass basis limit 

or the toxic equivalency basis limit. 

b Incorporated by reference, see §60.17. 

42. Revise the heading for subpart DDDD to read as 

follows: 

Subpart DDDD-Emissions Guidelines and Compliance Times for 

Commercial and Industrial Solid Waste Incineration Units

43. Section 60.2500 is revised to read as follows: 

§60.2500 What is the purpose of this subpart?

This subpart establishes emission guidelines and compliance 

schedules for the control of emissions from commercial and 

industrial solid waste incineration (CISWI) units. The 

pollutants addressed by these emission guidelines are listed in 

table 2 of this subpart and tables 6 through 9 of this subpart. 

These emission guidelines are developed in accordance with 

sections 111(d) and 129 of the Clean Air Act and subpart B of 

this part. 

44. Section 60.2505 is revised to read as follows: 

§60.2505 Am I affected by this subpart?
Page 408 of 526 

(a) If you are the Administrator of an air quality program 

in a state or United States protectorate with one or more 

existing CISWI units that meets the criteria in paragraphs (b) 

through (d) of this section, you must submit a state plan to EPA 

that implements the emission guidelines contained in this 

subpart. 

(b) You must submit a state plan to EPA by December 3, 2001 

for incinerator units that commenced construction on or before 

November 30, 1999 and that were not modified or reconstructed 

after June 1, 2001. 

(c) You must submit a state plan that meets the 

requirements of this subpart and contains the more stringent 

emission limit for the respective pollutant in table 6 of this 

subpart or table 1 of subpart CCCC of this part to EPA by [THE 

DATE 1 YEAR AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL 

REGISTER] for incinerators that commenced construction after 

November 30, 1999, but no later than June 4, 2010, or commenced 

modification or reconstruction after June 1, 2001 but no later 

than [THE DATE 6 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN 

THE FEDERAL REGISTER]. 

(d) You must submit a state plan to EPA that meets the 

requirements of this subpart and contains the emission limits in 

tables 7 through 9 of this subpart by [INSERT THE DATE 1 YEAR 

AFTER PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] for 
Page 409 of 526 

CISWI units other than incinerator units that commenced 

construction on or before June 4, 2010. 

45. Section 60.2525 is revised to read as follows: 

§60.2525 What if my state plan is not approvable? 

(a) If you do not submit an approvable state plan (or a 

negative declaration letter) by December 2, 2002, EPA will 

develop a federal plan according to §60.27 to implement the 

emission guidelines contained in this subpart. Owners and 

operators of CISWI units not covered by an approved state plan 

must comply with the federal plan. The federal plan is an 

interim action and will be automatically withdrawn when your 

state plan is approved. 

(b) If you do not submit an approvable state plan (or a 

negative declaration letter) to EPA that meets the requirements 

of this subpart and contains the emission limits in tables 6 

through 9 of this subpart for CISWI units that commenced 

construction on or before June 4, 2010, then EPA will develop a 

federal plan according to §60.27 to implement the emission 

guidelines contained in this subpart. Owners and operators of 

CISWI units not covered by an approved state plan must comply 

with the federal plan. The federal plan is an interim action and 

will be automatically withdrawn when your state plan is 

approved. 

46. Section 60.2535 is amended by: 
Page 410 of 526 

a. Revising paragraph (a) introductory text. 

b. Redesignating paragraph (b) as paragraph (d). 

c. Adding paragraphs (b) and (c). 

§60.2535 What compliance schedule must I include in my state 

plan?

(a) For CISWI units in the incinerator subcategory that 

commenced construction on or before November 30, 1999, your 

state plan must include compliance schedules that require CISWI 

units to achieve final compliance as expeditiously as 

practicable after approval of the state plan but not later than 

the earlier of the two dates specified in paragraphs (a)(1) and 

(2) of this section. 

* * * * * 

(b) For CISWI units in the incinerator subcategory that 

commenced construction after November 30, 1999, but on or before 

June 4, 2010, and for CISWI units in the energy recovery units 

and waste-burning kilns subcategories that commenced 

construction before June 4, 2010, your state plan must include 

compliance schedules that require CISWI units to achieve final 

compliance as expeditiously as practicable after approval of the 

state plan but not later than the earlier of the two dates 

specified in paragraphs (b)(1) and (b)(2) of this section. 

(1) [INSERT THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL 

RULE IN THE FEDERAL REGISTER]. 
Page 411 of 526 

(2) 3 years after the effective date of state plan 

approval. 

(c) For CISWI units in the small remote incinerator 

subcategory that commenced construction after November 30, 1999, 

but on or before June 4, 2010, your state plan must include 

compliance schedules that require small remote incinerator CISWI 

units to achieve final compliance as expeditiously as 

practicable after approval of the state plan but not later than 

the earlier of the two dates specified in paragraphs (c)(1) and 

(c)(2) of this section. 

(1) [INSERT THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL 

RULE IN THE FEDERAL REGISTER]. 

(2) 3 years after the effective date of state plan 

approval. 

* * * * * 

47. Section 60.2540 is amended by revising paragraph (a) 

to read as follows: 

§60.2540 Are there any state plan requirements for this subpart 

that apply instead of the requirements specified in subpart B?

* * * * * 

(a) State plans developed to implement this subpart must be 

as protective as the emission guidelines contained in this 

subpart. State plans must require all CISWI units to comply by 

the dates specified in §60.2535. This applies instead of the 
Page 412 of 526 

option for case-by-case less stringent emission standards and 

longer compliance schedules in §60.24(f). 

* * * * * 

48. Section 60.2541 is added to read as follows:

§60.2541 In lieu of a state plan submittal, are there other 

acceptable option(s) for a state to meet its Clean Air Act 

section 111(d)/129(b)(2) obligations?

Yes, a state may meet its Clean Air Act section 111(d)/129 

obligations by submitting an acceptable written request for 

delegation of the federal plan that meets the requirements of 

this section. This is the only other option for a state to meet 

its Clean Air Act section 111(d)/129 obligations. 

(a) An acceptable federal plan delegation request must 

include the following: 

(1) A demonstration of adequate resources and legal 

authority to administer and enforce the federal plan. 

(2) The items under §60.2515(a)(1), (2) and (7). 

(3) Certification that the hearing on the state delegation 

request, similar to the hearing for a state plan submittal, was 

held, a list of witnesses and their organizational affiliations, 

if any, appearing at the hearing, and a brief written summary of 

each presentation or written submission. 

(4) A commitment to enter into a Memorandum of Agreement 

with the Regional Administrator who sets forth the terms, 
Page 413 of 526 

conditions, and effective date of the delegation and that serves 

as the mechanism for the transfer of authority. Additional 

guidance and information is given in EPA’s Delegation Manual, 

Item 7-139, Implementation and Enforcement of 111(d)(2) and 

111(d)/(2)/129(b)(3) federal plans. 

(b) A state with an already approved CISWI Clean Air Act 

section 111(d)/129 state plan is not precluded from receiving 

EPA approval of a delegation request for the revised federal 

plan, providing the requirements of paragraph (a) of this 

section are met, and at the time of the delegation request, the 

state also requests withdrawal of EPA’s previous state plan 

approval. 

(c) A state’s Clean Air Act section 111(d)/129 obligations 

are separate from its obligations under Title V of the Clean Air 

Act . 

49. Section 60.2542 is added to read as follows: 

§60.2542 What authorities will not be delegated to state, local, 

or tribal agencies?

The authorities listed under §60.2030(c) will not be 

delegated to state, local, or tribal agencies. 

50. Section 60.2545 is amended by revising paragraph (b) 

and adding paragraph (c) to read as follows: 

§60.2545 Does this subpart directly affect CISWI unit owners and 

operators in my state?
Page 414 of 526 

* * * * * 

(b) If you do not submit an approvable plan to implement 

and enforce the guidelines contained in this subpart for CISWI 

units that commenced construction on or before November 30, 1999 

by December 2, 2002, EPA will implement and enforce a federal 

plan, as provided in §60.2525, to ensure that each unit within 

your state reaches compliance with all the provisions of this 

subpart by December 1, 2005. 

(c) If you do not submit an approvable plan to implement 

and enforce the guidelines contained in this subpart by [INSERT 

THE DATE 1 YEAR AFTER PUBLICATION OF THE FINAL RULE IN THE 

FEDERAL REGISTER] for CISWI units that commenced construction on 

or before June 4, 2010, EPA will implement and enforce a federal 

plan, as provided in §60.2525, to ensure that each unit within 

your state that commenced construction on or before June 4, 

2010, reaches compliance with all the provisions of this subpart 

by [INSERT THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE 

IN THE FEDERAL REGISTER]. 

51. Section §60.2550 is amended by revising paragraph 

(a)(1) to read as follows: 

§60.2550 What CISWI units must I address in my state plan?

(a) * * * 

(1) Incineration units in your state that commenced 

construction on or before June 4, 2010. 
Page 415 of 526 

* * * * * 

52. Section §60.2555 is amended by: 

a. Revising the introductory text. 

b. Removing and reserving paragraph (b). 

c. Revising paragraphs (c), (e)(3), (f)(3), and (g). 

d. Removing and reserving paragraphs (j), (k) and (l). 

e. Revising paragraphs (m) and (n). 

f. Removing paragraph (o). 

§60.2555 What combustion units are exempt from my state plan?

This subpart exempts the types of units described in 

paragraphs (a), (c) through (i), (m), and (n) of this section, 

but some units are required to provide notifications. Air 

curtain incinerators are exempt from the requirements in this 

subpart except for the provisions in §§60.2805, 60.2860, and 

60.2870. 

* * * * * 

(b) [Reserved] 

(c) Municipal waste combustion units. Incineration units 

that are subject to subpart Ea of this part (Standards of 

Performance for Municipal Waste Combustors); subpart Eb of this 

part (Standards of Performance for Large Municipal Waste 

Combustors); subpart Cb of this part (Emission Guidelines and 

Compliance Time for Large Municipal Combustors); subpart AAAA of 

this part (Standards of Performance for Small Municipal Waste 
Page 416 of 526 

Combustion Units); or subpart BBBB of this part (Emission 

Guidelines for Small Municipal Waste Combustion Units). 

* * * * * 

(e) * * * 

(3) You submit a request to the Administrator for a 

determination that the qualifying cogeneration facility is 

combusting homogenous waste. The request must include 

information sufficient to document that the unit meets the 

criteria of the definition of a small power production facility 

and that the waste material the unit is proposed to burn is 

homogeneous. 

* * * * * 

(f) * * * 

(3) You submit a request to the Administrator for a 

determination that the qualifying cogeneration facility is 

combusting homogenous waste. The request must include 

information sufficient to document that the unit meets the 

criteria of the definition of a cogeneration facility and that 

the waste material the unit is proposed to burn is homogeneous. 

(g) Hazardous waste combustion units. Units for which you 

are required to get a permit under section 3005 of the Solid 

Waste Disposal Act. 

* * * * * 

(j) [Reserved] 
Page 417 of 526 

(k) [Reserved] 

(l) [Reserved] 

(m) Sewage treatment plants. Incineration units regulated 

under subpart O of this part (Standards of Performance for 

Sewage Treatment Plants). 

(n) Sewage sludge incineration units. Incineration units 

combusting sewage sludge for the purpose of reducing the volume 

of the sewage sludge by removing combustible matter that are 

subject to subpart LLLL of this part (Standards of Performance 

for Sewage Sludge Incineration Units) or subpart MMMM of this 

part (Emission Guidelines for Sewage Sludge Incineration Units). 

§60.2558 [Removed]

53. Section 60.2558 is removed. 

54. Section 60.2635 is amended by revising paragraph 

(c)(1)(vii) to read as follows: 

§60.2635 What are the operator training and qualification 

requirements?

* * * * * 

(c) * * * 

(1) * * * 

(vii) Actions to prevent and correct malfunctions or to 

prevent conditions that may lead to malfunctions. 

* * * * * 
Page 418 of 526 

55. Section 60.2650 is amended by revising paragraph (d) 

to read as follows: 

§60.2650 How do I maintain my operator qualification?

* * * * * 

(d) Prevention and correction of malfunctions or conditions 

that may lead to malfunction. 

* * * * * 

56. Section 60.2670 is revised to read as follows: 

§60.2670 What emission limitations must I meet and by when?

(a) You must meet the emission limitations for each CISWI 

unit, including bypass stack or vent, specified in table 2 of 

this subpart or tables 6 through 9 of this subpart by the final 

compliance date under the approved state plan, federal plan, or 

delegation, as applicable. The emission limitations apply at all 

times the unit is operating including and not limited to 

startup, shutdown, or malfunction. 

(b) Units that do not use wet scrubbers must maintain 

opacity to less than or equal to the percent opacity (three 1-

hour blocks consisting of ten 6-minute average opacity values) 

specified in table 2 of this subpart, as applicable. 

57. Section 60.2675 is amended by: 

a. Revising paragraphs (a) introductory text and paragraphs 

(a)(2), (a)(3), and (a)(4). 

b. Revising paragraph (b). 
Page 419 of 526 

c. Adding paragraphs (d), (e), (f), (g), and (h) to read as 

follows: 

§60.2675 What operating limits must I meet and by when?

(a) If you use a wet scrubber(s) to comply with the 

emission limitations, you must establish operating limits for up 

to four operating parameters (as specified in table 3 of this 

subpart) as described in paragraphs (a)(1) through (4) of this 

section during the initial performance test. 

* * * * * 

(2) Minimum pressure drop across the wet particulate matter 

scrubber, which is calculated as the lowest 1-hour average 

pressure drop across the wet scrubber measured during the most 

recent performance test demonstrating compliance with the 

particulate matter emission limitations; or minimum amperage to 

the fan for the wet scrubber, which is calculated as the lowest 

1-hour average amperage to the wet scrubber measured during the 

most recent performance test demonstrating compliance with the 

particulate matter emission limitations. 

(3) Minimum scrubber liquid flow rate, which is calculated 

as the lowest 1-hour average liquid flow rate at the inlet to 

the wet acid gas or particulate matter scrubber measured during 

the most recent performance test demonstrating compliance with 

all applicable emission limitations. 
Page 420 of 526 

(4) Minimum scrubber liquor pH, which is calculated as the 

lowest 1-hour average liquor pH at the inlet to the wet acid gas 

scrubber measured during the most recent performance test 

demonstrating compliance with the HCl emission limitation. 

* * * * * 

(b) You must meet the operating limits established during 

the initial performance test on the date the initial performance 

test is required or completed (whichever is earlier). You must 

conduct an initial performance evaluation of each continuous 

monitoring system and continuous parameter monitoring system 

within 60 days of installation of the monitoring system. 

* * * * * 

(d) If you use an electrostatic precipitator to comply with 

the emission limitations, you must measure the (secondary) 

voltage and amperage of the electrostatic precipitator 

collection plates during the particulate matter performance 

test. Calculate the average electric power value (secondary 

voltage x secondary current = secondary electric power) for each 

test run. The operating limit for the electrostatic precipitator 

is calculated as the lowest 1-hour average secondary electric 

power measured during the most recent performance test 

demonstrating compliance with the particulate matter emission 

limitations. 
Page 421 of 526 

(e) If you use activated carbon sorbent injection to comply 

with the emission limitations, you must measure the sorbent flow 

rate during the performance testing. The operating limit for the 

carbon sorbent injection is calculated as the lowest 1-hour 

average sorbent flow rate measured during the most recent 

performance test demonstrating compliance with the mercury 

emission limitations. 

(f) If you use selective noncatalytic reduction to comply 

with the emission limitations, you must measure the charge rate, 

the secondary chamber temperature (if applicable to your CISWI 

unit), and the reagent flow rate during the nitrogen oxides 

performance testing. The operating limits for the selective 

noncatalytic reduction are calculated as the highest 1-hour 

average charge rate, secondary chamber temperature, and reagent 

flow rate measured during the most recent performance test 

demonstrating compliance with the nitrogen oxides emission 

limitations. 

(g) If you use a dry scrubber to comply with the emission 

limitations, you must measure the injection rate of each sorbent 

during the performance testing. The operating limit for the 

injection rate of each sorbent is calculated as the lowest 1-

hour average injection rate or each sorbent measured during the 

most recent performance test demonstrating compliance with the 

hydrogen chloride emission limitations. 
Page 422 of 526 

(h) If you do not use a wet scrubber, electrostatic 

precipitator, or fabric filter to comply with the emission 

limitations, and if you do not determine compliance with your 

particulate matter emission limitation with a particulate matter 

continuous emissions monitoring system, you must maintain 

opacity to less than or equal to ten percent opacity (1-hour 

block average). 

58. Section 60.2680 is revised to read as follows: 

§60.2680 What if I do not use a wet scrubber, fabric filter, 

activated carbon injection, selective noncatalytic reduction, an 

electrostatic precipitator, or a dry scrubber to comply with the 

emission limitations?

(a) If you use an air pollution control device other than a 

wet scrubber, activated carbon injection, selective noncatalytic 

reduction, fabric filter, an electrostatic precipitator, or a 

dry scrubber or limit emissions in some other manner, including 

mass balances, to comply with the emission limitations under 

§60.2670, you must petition the EPA Administrator for specific 

operating limits to be established during the initial 

performance test and continuously monitored thereafter. You must 

submit the petition at least sixty days before the performance 

test is schedule to begin. Your petition must include the five 

items listed in paragraphs (a)(1) through (5) of this section. 
Page 423 of 526 

(1) Identification of the specific parameters you propose 

to use as additional operating limits. 

(2) A discussion of the relationship between these 

parameters and emissions of regulated pollutants, identifying 

how emissions of regulated pollutants change with changes in 

these parameters and how limits on these parameters will serve 

to limit emissions of regulated pollutants. 

(3) A discussion of how you will establish the upper and/or 

lower values for these parameters which will establish the 

operating limits on these parameters. 

(4) A discussion identifying the methods you will use to 

measure and the instruments you will use to monitor these 

parameters, as well as the relative accuracy and precision of 

these methods and instruments. 

(5) A discussion identifying the frequency and methods for 

recalibrating the instruments you will use for monitoring these 

parameters. 

(b) [Reserved] 

59. Section 60.2685 is revised to read as follows: 

§60.2685 Affirmative Defense for Violation of Emission Standards 

During Malfunction

In response to an action to enforce the standards set forth 

in paragraph §60.2670 you may assert an affirmative defense to a 

claim for civil penalties for violations of such standards that 
Page 424 of 526 

are caused by malfunction, as defined at 40 CFR 60.2. 

Appropriate penalties may be assessed; however, if you fail to 

meet your burden of proving all of the requirements in the 

affirmative defense, the affirmative defense shall not be 

available for claims for injunctive relief. 

(a) To establish the affirmative defense in any action to 

enforce such a standard, you must timely meet the reporting 

requirements in paragraph (b) of this section, and must prove by 

a preponderance of evidence that: 

(1) The violation: 

(i) Was caused by a sudden, infrequent, and unavoidable 

failure of air pollution control equipment, process equipment, 

or a process to operate in a normal or usual manner; and 

(ii) Could not have been prevented through careful 

planning, proper design or better operation and maintenance 

practices; and 

(iii) Did not stem from any activity or event that could 

have been foreseen and avoided, or planned for; and 

(iv) Was not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; and 

(2) Repairs were made as expeditiously as possible when a 

violation occurred. Off-shift and overtime labor were used, to 

the extent practicable to make these repairs; and 
Page 425 of 526 

(3) The frequency, amount and duration of the violation 

(including any bypass) were minimized to the maximum extent 

practicable; and 

(4) If the violation resulted from a bypass of control 

equipment or a process, then the bypass was unavoidable to 

prevent loss of life, personal injury, or severe property 

damage; and 

(5) All possible steps were taken to minimize the impact of 

the violation on ambient air quality, the environment, and human 

health; and 

(6) All emissions monitoring and control systems were kept 

in operation if at all possible, consistent with safety and good 

air pollution control practices; 

(7) All of the actions in response to the violation were 

documented by properly signed, contemporaneous operating logs; 

and 

(8) At all times, the affected facility was operated in a 

manner consistent with good practices for minimizing emissions; 

and 

(9) A written root cause analysis has been prepared, the 

purpose of which is to determine, correct, and eliminate the 

primary causes of the malfunction and the violation resulting 

from the malfunction event at issue. The analysis shall also 

specify, using best monitoring methods and engineering judgment, 
Page 426 of 526 

the amount of any emissions that were the result of the 

malfunction. 

(b) Report. The owner or operator seeking to assert an 

affirmative defense shall submit a written report to the 

Administrator with all necessary supporting documentation that 

it has met the requirements set forth in paragraph (a) of this 

section. This affirmative defense report shall be included in 

the first periodic compliance, deviation report or excess 

emission report otherwise required after the initial occurrence 

of the violation of the relevant standard (which may be the end 

of any applicable averaging period). If such compliance, 

deviation report or excess emission report is due less than 45 

days after the initial occurrence of the violation, the 

affirmative defense report may be included in the second 

compliance, deviation report or excess emission report due after 

the initial occurrence of the violation of the relevant 

standard. 

60. Section 60.2690 is amended by revising paragraphs (c) 

and (g)(1) and (2) and adding paragraphs (h) and (i) to read as 

follows: 

§60.2690 How do I conduct the initial and annual performance 

test?

* * * * * 
Page 427 of 526 

(c) All performance tests must be conducted using the 

minimum run duration specified in tables 2 and 6 through 9 of 

this subpart. 

* * * * * 

(g) * * * 

(1) Measure the concentration of each dioxin/furan tetrathrough octa-isomer emitted using EPA Method 23 at 40 CFR part 

60, appendix A. 

(2) For each dioxin/furan (tetra-through octa-chlorinated) 

isomer measured in accordance with paragraph (g)(1) of this 

section, multiply the isomer concentration by its corresponding 

toxic equivalency factor specified in table 4 of this subpart. 

* * * * * 

(h) Method 22 at 40 CFR part 60, appendix A-7 must be used 

to determine compliance with the fugitive ash emission limit in 

table 2 of this subpart or tables 6 through 9 of this subpart. 

(i) If you have an applicable opacity operating limit, you 

must determine compliance with the opacity limit using Method 9 

at 40 CFR part 60, appendix A-4, based on three 1-hour blocks 

consisting of ten 6-minute average opacity values, unless you 

are required to install a continuous opacity monitoring system, 

consistent with §60.2710 and §60.2730. 

61. Section 60.2695 is revised to read as follows: 

§60.2695 How are the performance test data used?
Page 428 of 526 

You use results of performance tests to demonstrate 

compliance with the emission limitations in table 2 of this 

subpart or tables 6 through 9 of this subpart. 

62. Section 60.2700 is revised to read as follows: 

§60.2700 How do I demonstrate initial compliance with the 

amended emission limitations and establish the operating limits?

You must conduct a performance test, as required under 

§§60.2690 and 60.2670, to determine compliance with the emission 

limitations in table 2 of this subpart and tables 6 through 9 of 

this subpart, to establish compliance with any opacity operating 

limits in §60.2675, and to establish operating limits using the 

procedures in §60.2675 or §60.2680. The performance test must be 

conducted using the test methods listed in table 2 of this 

subpart and tables 6 through 9 of this subpart and the 

procedures in §60.2690. The use of the bypass stack during a 

performance test shall invalidate the performance test. You must 

conduct a performance evaluation of each continuous monitoring 

system within 60 days of installation of the monitoring system. 

63. Section 60.2705 is revised to read as follows: 

§60.2705 By what date must I conduct the initial performance 

test?

(a) The initial performance test must be conducted no later 

than 180 days after your final compliance date. Your final 

compliance date is specified in table 1 of this subpart. 
Page 429 of 526 

(b) If you commence or recommence combusting a solid waste 

at an existing combustion unit at any commercial or industrial 

facility and you conducted a test consistent with the provisions 

of this subpart while combusting the given solid waste within 

the 6 months preceding the reintroduction of that solid waste in 

the combustion chamber, you do not need to retest until 6 months 

from the date you reintroduce that solid waste. 

(c) If you commence combusting or recommence combusting a 

solid waste at an existing combustion unit at any commercial or 

industrial facility and you have not conducted a performance 

test consistent with the provisions of this subpart while 

combusting the given solid waste within the 6 months preceding 

the reintroduction of that solid waste in the combustion 

chamber, you must conduct a performance test within 60 days 

commencing or recommencing solid waste combustion. 

64. Section 60.2706 is added to read as follows: 

§60.2706 By what date must I conduct the initial air pollution 

control device inspection?

(a) The initial air pollution control device inspection 

must be conducted within 60 days after installation of the 

control device and the associated CISWI unit reaches the charge 

rate at which it will operate, but no later than 180 days after 

the final compliance date for meeting the amended emission 

limitations. 
Page 430 of 526 

(b) Within 10 operating days following an air pollution 

control device inspection, all necessary repairs must be 

completed unless the owner or operator obtains written approval 

from the state agency establishing a date whereby all necessary 

repairs of the designated facility must be completed. 

65. Section 60.2710 is revised to read as follows: 

§60.2710 How do I demonstrate continuous compliance with the 

amended emission limitations and the operating limits?

(a) Compliance with standards. 

(1) The emission standards and operating requirements set 

forth in this subpart apply at all times. 

(2) If you cease combusting solid waste you may opt to 

remain subject to the provisions of this subpart. Consistent 

with the definition of CISWI unit, you are subject to the 

requirements of this subpart at least 6 months following the 

last date of solid waste combustion. Solid waste combustion is 

ceased when solid waste is not in the combustion chamber (i.e., 

the solid waste feed to the combustor has been cut off for a 

period of time not less than the solid waste residence time). 

(3) If you cease combusting solid waste you must be in 

compliance with any newly applicable standards on the effective 

date of the waste-to-fuel switch. The effective date of the 

waste-to-fuel switch is a date selected by you, that must be at 

least 6 months from the date that you ceased combusting solid 
Page 431 of 526 

waste, consistent with §60.2710(a)(2). Your source must remain 

in compliance with this subpart until the effective date of the 

waste-to-fuel switch. 

(4) If you own or operate an existing commercial or 

industrial combustion unit that combusted a fuel or non-waste 

material, and you commence or recommence combustion of solid 

waste, you are subject to the provisions of this subpart as of 

the first day you introduce or reintroduce solid waste to the 

combustion chamber, and this date constitutes the effective date 

of the fuel-to-waste switch. You must complete all initial 

compliance demonstrations for any section 112 standards that are 

applicable to your facility before you commence or recommence 

combustion of solid waste. You must provide 30 days prior notice 

of the effective date of the waste-to-fuel switch. The 

notification must identify: 

(i) The name of the owner or operator of the CISWI unit, 

the location of the source, the emissions unit(s) that will 

cease burning solid waste, and the date of the notice; 

(ii) The currently applicable subcategory under this 

subpart, and any 40 CFR part 63 subpart and subcategory that 

will be applicable after you cease combusting solid waste; 

(iii) The fuel(s), non-waste material(s) and solid waste(s) 

the CISWI unit is currently combusting and has combusted over 
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the past 6 months, and the fuel(s) or non-waste materials the 

unit will commence combusting; 

(iv) The date on which you became subject to the currently 

applicable emission limits; 

(v) The date upon which you will cease combusting solid 

waste, and the date (if different) that you intend for any new 

requirements to become applicable (i.e., the effective date of 

the waste-to-fuel switch), consistent with (2) and (3)) above. 

(5) All air pollution control equipment necessary for 

compliance with any newly applicable emissions limits which 

apply as a result of the cessation or commencement or 

recommencement of combusting solid waste must be installed and 

operational as of the effective date of the waste-to-fuel, or 

fuel-to-waste switch. 

(6) All monitoring systems necessary for compliance with 

any newly applicable monitoring requirements which apply as a 

result of the cessation or commencement or recommencement of 

combusting solid waste must be installed and operational as of 

the effective date of the waste-to-fuel, or fuel-to-waste 

switch. All calibration and drift checks must be performed as of 

the effective date of the waste-to-fuel, or fuel-to-waste 

switch. Relative accuracy tests must be performed as of the 

performance test deadline for PM CEMS (if PM CEMS are elected to 

demonstrate continuous compliance with the particulate matter 
Page 433 of 526 

emission limits). Relative accuracy testing for other CEMS need 

not be repeated if that testing was previously performed 

consistent with section 112 monitoring requirements or 

monitoring requirements under this subpart. 

(b) You must conduct an annual performance test for the 

pollutants listed in table 2 of this subpart or tables 6 through 

9 of this subpart and opacity for each CISWI unit as required 

under §60.2690. The annual performance test must be conducted 

using the test methods listed in table 2 of this subpart or 

tables 6 through 9 of this subpart and the procedures in 

§60.2690. Opacity must be measured using EPA Reference Method 9 

at 40 CFR part 60. Annual performance tests are not required if 

you use CEMS or continuous opacity monitoring systems to 

determine compliance. 

(c) You must continuously monitor the operating parameters 

specified in §60.2675 or established under §60.2680 and as 

specified in §60.2735. Operation above the established maximum 

or below the established minimum operating limits constitutes a 

deviation from the established operating limits. Three-hour 

block average values are used to determine compliance (except 

for baghouse leak detection system alarms) unless a different 

averaging period is established under §60.2680 or, for energy 

recovery units, where the averaging time for each operating 

parameter is a 30-day rolling, calculated each hour as the 
Page 434 of 526 

average of the previous 720 operating hours. Operation above the 

established maximum, below the established minimum, or outside 

the allowable range of the operating limits specified in 

paragraph (a) of this section constitutes a deviation from your 

operating limits established under this subpart, except during 

performance tests conducted to determine compliance with the 

emission and operating limits or to establish new operating 

limits. Operating limits are confirmed or reestablished during 

performance tests. 

(d) You must burn only the same types of waste and fuels 

used to establish subcategory applicability (for ERUs) and 

operating limits during the performance test. 

(e) For energy recovery units, incinerators, and small 

remote units, you must perform annual visual emissions test for 

ash handling. 

(f) For energy recovery units, you must conduct an annual 

performance test for opacity using EPA Reference Method 9 at 40 

CFR part 60 (except where particulate matter continuous 

monitoring system or continuous parameter monitoring systems are 

used) and the pollutants listed in table 7 of this subpart. 

(g) For facilities using a CEMS to demonstrate compliance 

with the carbon monoxide emission limit, compliance with the 

carbon monoxide emission limit may be demonstrated by using the 

CEMS according to the following requirements: 
Page 435 of 526 

(1) You must measure emissions according to §60.13 to 

calculate 1-hour arithmetic averages, corrected to 7 percent 

oxygen. CEMS data during startup and shutdown, as defined in 

this subpart, are not corrected to 7 percent oxygen, and are 

measured at stack oxygen content. You must demonstrate initial 

compliance with the carbon monoxide emissions limit using a 30-

day rolling average of the 1-hour arithmetic average emission 

concentrations, including CEMS data during startup and shutdown 

as defined in this subpart, calculated using Equation 19-19 in 

section 12.4.1 of EPA Reference Method 19 at 40 CFR part 60, 

appendix A–7. 

(2) Operate the carbon monoxide continuous emissions 

monitoring system in accordance with the applicable requirements 

of performance specification 4A of appendix B and the quality 

assurance procedures of appendix F of this part. 

(h) Energy recovery units with annual average heat input 

rates greater than 250 MMBtu/hr and waste-burning kilns may 

elect to demonstrate continuous compliance with the particulate 

matter emissions limit using a particulate matter CEMS according 

to the procedures in §60.2730(n) instead of the continuous 

parameter monitoring system specified in §60.2710(i). 

(i) For energy recovery units with annual average heat 

input rates greater than or equal to 10 MMBTU/hour but less than 

250 MMBtu/hr you must install, operate, certify and maintain a 
Page 436 of 526 

continuous opacity monitoring system (COMS) according to the 

procedures in §60.2730. 

(j) For waste-burning kilns, you must conduct an annual 

performance test for the pollutants (except mercury and 

particulate matter, and hydrogen chloride if no acid gas wet 

scrubber is used) listed in table 8 of this subpart. If your 

waste-burning kiln is not equipped with a wet scrubber or dry 

scrubber, you must determine compliance with the hydrogen 

chloride emission limit using a CEMS as specified in §60.2730. 

You must determine compliance with particulate matter using 

CPMS. You must determine compliance with the mercury emissions 

limit using a mercury CEMS according to the following 

requirements: 

(1) Operate a CEMSin accordance with performance 

specification 12A at 40 CFR part 60, appendix B or a sorbent 

trap based integrated monitor in accordance with performance 

specification 12B at 40 CFR part 60, appendix B. The duration of 

the performance test must be a calendar month. For each calendar 

month in which the waste-burning kiln operates, hourly mercury 

concentration data and stack gas volumetric flow rate data must 

be obtained. You must demonstrate compliance with the mercury 

emissions limit using a 30-day rolling average of these 1-hour 

mercury concentrations, including CEMS data during startup and 

shutdown as defined in this subpart, calculated using Equation 
Page 437 of 526 

19-19 in section 12.4.1 of EPA Reference Method 19 at 40 CFR 

part 60, appendix A–7 of this part. CEMS data during startup and 

shutdown, as defined in this subpart, are not corrected to 7 

percent oxygen, and are measured at stack oxygen content. 

(2) Owners or operators using a mercury continuous 

emissions monitoring systems must install, operate, calibrate 

and maintain an instrument for continuously measuring and 

recording the mercury mass emissions rate to the atmosphere 

according to the requirements of performance specifications 6 

and 12A at 40 CFR part 60, appendix B and quality assurance 

procedure 5 at 40 CFR part 60, appendix F. 

(3) The owner or operator of a waste-burning kiln must 

demonstrate initial compliance by operating a mercury continuous 

emissions monitor while the raw mill of the in-line kiln/raw 

mill is operating under normal conditions and while the raw mill 

of the in-line kiln/raw mill is not operating. 

(k) If you use an air pollution control device to meet the 

emission limitations in this subpart, you must conduct an 

initial and annual inspection of the air pollution control 

device. The inspection must include, at a minimum, the 

following: 

(1) Inspect air pollution control device(s) for proper 

operation. 
Page 438 of 526 

(2) Develop a site-specific monitoring plan according to 

the requirements in paragraph (l) of this section. This 

requirement also applies to you if you petition the EPA 

Administrator for alternative monitoring parameters under 

§60.13(i). 

(l) For each CMS required in this section, you must develop 

and submit to the EPA Administrator for approval a site-specific 

monitoring plan according to the requirements of this paragraph 

(l) that addresses paragraphs (l)(1)(i) through (vi) of this 

section. 

(1) You must submit this site-specific monitoring plan at 

least 60 days before your initial performance evaluation of your 

continuous monitoring system. 

(i) Installation of the continuous monitoring system 

sampling probe or other interface at a measurement location 

relative to each affected process unit such that the measurement 

is representative of control of the exhaust emissions (e.g., on 

or downstream of the last control device). 

(ii) Performance and equipment specifications for the 

sample interface, the pollutant concentration or parametric 

signal analyzer and the data collection and reduction systems. 

(iii) Performance evaluation procedures and acceptance 

criteria (e.g., calibrations). 
Page 439 of 526 

(iv) Ongoing operation and maintenance procedures in 

accordance with the general requirements of §60.11(d). 

(v) Ongoing data quality assurance procedures in accordance 

with the general requirements of §60.13. 

(vi) Ongoing recordkeeping and reporting procedures in 

accordance with the general requirements of §60.7(b),(c), 

(c)(1), (c)(4), (d), (e), (f) and (g). 

(2) You must conduct a performance evaluation of each 

continuous monitoring system in accordance with your sitespecific monitoring plan. 

(3) You must operate and maintain the continuous monitoring 

system in continuous operation according to the site-specific 

monitoring plan. 

(m) If you have an operating limit that requires the use of 

a flow monitoring system, you must meet the requirements in 

paragraphs (l) and (m)(1) through (4) of this section. 

(1) Install the flow sensor and other necessary equipment 

in a position that provides a representative flow. 

(2) Use a flow sensor with a measurement sensitivity of no 

greater than 2 percent of the expected process flow rate. 

(3) Minimize the effects of swirling flow or abnormal 

velocity distributions due to upstream and downstream 

disturbances. 
Page 440 of 526 

(4) Conduct a flow monitoring system performance evaluation 

in accordance with your monitoring plan at the time of each 

performance test but no less frequently than annually. 

(n) If you have an operating limit that requires the use of 

a pressure monitoring system, you must meet the requirements in 

paragraphs (l) and (n)(1) through (6) of this section. 

(1) Install the pressure sensor(s) in a position that 

provides a representative measurement of the pressure (e.g., PM 

scrubber pressure drop). 

(2) Minimize or eliminate pulsating pressure, vibration, 

and internal and external corrosion. 

(3) Use a pressure sensor with a minimum tolerance of 1.27 

centimeters of water or a minimum tolerance of 1 percent of the 

pressure monitoring system operating range, whichever is less. 

(4) Perform checks at least once each process operating day 

to ensure pressure measurements are not obstructed (e.g., check 

for pressure tap pluggage daily). 

(5) Conduct a performance evaluation of the pressure 

monitoring system in accordance with your monitoring plan at the 

time of each performance test but no less frequently than 

annually. 

(6) If at any time the measured pressure exceeds the 

manufacturer's specified maximum operating pressure range, 

conduct a performance evaluation of the pressure monitoring 
Page 441 of 526 

system in accordance with your monitoring plan and confirm that 

the pressure monitoring system continues to meet the performance 

requirements in your monitoring plan. Alternatively, install and 

verify the operation of a new pressure sensor. 

(o) If you have an operating limit that requires a pH 

monitoring system, you must meet the requirements in paragraphs 

(l) and (o)(1) through (4) of this section. 

(1) Install the pH sensor in a position that provides a 

representative measurement of scrubber effluent pH. 

(2) Ensure the sample is properly mixed and representative 

of the fluid to be measured. 

(3) Conduct a performance evaluation of the pH monitoring 

system in accordance with your monitoring plan at least once 

each process operating day. 

(4) Conduct a performance evaluation (including a two-point 

calibration with one of the two buffer solutions having a pH 

within 1 of the pH of the operating limit) of the pH monitoring 

system in accordance with your monitoring plan at the time of 

each performance test but no less frequently than quarterly. 

(p) If you have an operating limit that requires a 

secondary electric power monitoring system for an electrostatic 

precipitator, you must meet the requirements in paragraphs (l) 

and (p)(1) through (2) of this section. 
Page 442 of 526 

(1) Install sensors to measure (secondary) voltage and 

current to the precipitator collection plates. 

(2) Conduct a performance evaluation of the electric power 

monitoring system in accordance with your monitoring plan at the 

time of each performance test but no less frequently than 

annually. 

(q) If you have an operating limit that requires the use of 

a monitoring system to measure sorbent injection rate (e.g., 

weigh belt, weigh hopper, or hopper flow measurement device), 

you must meet the requirements in paragraphs (l) and (q)(1) 

through (3) of this section. 

(1) Install the system in a position(s) that provides a 

representative measurement of the total sorbent injection rate. 

(2) Conduct a performance evaluation of the sorbent 

injection rate monitoring system in accordance with your 

monitoring plan at the time of each performance test but no less 

frequently than annually. 

(r) If you elect to use a fabric filter bag leak detection 

system to comply with the requirements of this subpart, you must 

install, calibrate, maintain, and continuously operate a bag 

leak detection system as specified in paragraphs (l) and (r)(1) 

through (5) of this section. 

(1) Install a bag leak detection sensor(s) in a position(s) 

that will be representative of the relative or absolute 
Page 443 of 526 

particulate matter loadings for each exhaust stack, roof vent, 

or compartment (e.g., for a positive pressure fabric filter) of 

the fabric filter. 

(2) Use a bag leak detection system certified by the 

manufacturer to be capable of detecting particulate matter 

emissions at concentrations of 10 milligrams per actual cubic 

meter or less. 

(3) Conduct a performance evaluation of the bag leak 

detection system in accordance with your monitoring plan and 

consistent with the guidance provided in EPA–454/R–98–015 

(incorporated by reference, see §60.17). 

(4) Use a bag leak detection system equipped with a device 

to continuously record the output signal from the sensor. 

(5) Use a bag leak detection system equipped with a system 

that will sound an alarm when an increase in relative 

particulate matter emissions over a preset level is detected. 

The alarm must be located where it is observed readily by plant 

operating personnel. 

(s) For facilities using a CEMS to demonstrate compliance 

with the sulfur dioxide emission limit, compliance with the 

sulfur dioxide emission limit may be demonstrated by using the 

CEMS specified in §60.2730 to measure sulfur dioxide. CEMS data 

during startup and shutdown, as defined in this subpart, are not 

corrected to 7 percent oxygen, and are measured at stack oxygen 
Page 444 of 526 

content. You mustcalculate a 30-day rolling average of the 1-

hour arithmetic average emission concentrations, including CEMS 

data during startup and shutdown as defined in this subpart, 

using Equation 19-19 in section 12.4.1 of EPA Reference Method 

19 at 40 CFR part 60, appendix A-7. The sulfur dioxide CEMS must 

be operated according to performance specification 2 in appendix 

B of this part and must follow the procedures and methods 

specified in this paragraph (s). For sources that have actual 

inlet emissions less than 100 parts per million dry volume, the 

relative accuracy criterion for inlet sulfur dioxide CEMS should 

be no greater than 20 percent of the mean value of the reference 

method test data in terms of the units of the emission standard, 

or 5 parts per million dry volume absolute value of the mean 

difference between the reference method and the CEMS, whichever 

is greater. 

(1) During each relative accuracy test run of the CEMS 

required by performance specification 2 in appendix B of this 

part, collect sulfur dioxide and oxygen (or carbon dioxide) data 

concurrently (or within a 30- to 60-minute period) with both the 

continuous emissions monitors and the test methods specified in 

paragraphs (s)(1)(i) and (s)(1)(ii) of this section. 

(i) For sulfur dioxide, EPA Reference Method 6 or 6C, or as 

an alternative ANSI/ASME PTC 19.10–1981 (incorporated by 

reference, see §60.17) must be used. 
Page 445 of 526 

(ii) For oxygen (or carbon dioxide), EPA Reference Method 

3A or 3B, or as an alternative ANSI/ASME PTC 19.10–1981 

(incorporated by reference, see §60.17), as applicable, must be 

used. 

(2) The span value of the continuous emissions monitoring 

system at the inlet to the sulfur dioxide control device must be 

125 percent of the maximum estimated hourly potential sulfur 

dioxide emissions of the unit subject to this rule. The span 

value of the CEMS at the outlet of the sulfur dioxide control 

device must be 50 percent of the maximum estimated hourly 

potential sulfur dioxide emissions of the unit subject to this 

rule. 

(3) Conduct accuracy determinations quarterly and 

calibration drift tests daily in accordance with procedure 1 in 

appendix F of this part. 

(t) For facilities using a CEMS to demonstrate continuous 

compliance with the nitrogen oxides emission limit, compliance 

with the nitrogen oxides emission limit may be demonstrated by 

using the CEMS specified in §60.2730 to measure nitrogen oxides. 

CEMS data during startup and shutdown, as defined in this 

subpart, are not corrected to 7 percent oxygen, and are measured 

at stack oxygen content. You must calculate a 30-day rolling 

average of these 1-hour arithmetic average emission 

concentration using Equation 19-19 in section 12.4.1 of EPA 
Page 446 of 526 

Reference Method 19 at 40 CFR part 60, appendix A-7. The 

nitrogen oxides CEMS must be operated according to performance 

specification 2 in appendix B of this part and must follow the 

procedures and methods specified in paragraphs (t)(1) through 

(t)(5) of this section. 

(1) During each relative accuracy test run of the CEMS 

required by performance specification 2 of appendix B of this 

part, collect nitrogen oxides and oxygen (or carbon dioxide) 

data concurrently (or within a 30- to 60-minute period) with 

both the CEMS and the test methods specified in paragraphs 

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

(i) For nitrogen oxides, EPA Reference Method 7 or 7E at 40 

CFR part 60, appendix A-4 must be used. 

(ii) For oxygen (or carbon dioxide), EPA Reference Method 

3A or 3B, or as an alternative ANSI/ASME PTC 19.10–1981 

(incorporated by reference, see §60.17), as applicable, must be 

used. 

(2) The span value of the CEMS must be 125 percent of the 

maximum estimated hourly potential nitrogen oxide emissions of 

unit. 

(3) Conduct accuracy determinations quarterly and 

calibration drift tests daily in accordance with procedure 1 in 

appendix F of this part. 
Page 447 of 526 

(4) The owner or operator of an affected facility may 

request that compliance with the nitrogen oxides emission limit 

be determined using carbon dioxide measurements corrected to an 

equivalent of 7 percent oxygen. If carbon dioxide is selected 

for use in diluent corrections, the relationship between oxygen 

and carbon dioxide levels must be established during the initial 

performance test according to the procedures and methods 

specified in paragraphs (t)(4)(i) through (t)(4)(iv) of this 

section. This relationship may be reestablished during 

performance compliance tests. 

(i) The fuel factor equation in Method 3B must be used to 

determine the relationship between oxygen and carbon dioxide at 

a sampling location. Method 3A, 3B, or as an alternative 

ANSI/ASME PTC 19.10–1981 (incorporated by reference, see 

§60.17), as applicable, must be used to determine the oxygen 

concentration at the same location as the carbon dioxide 

monitor. 

(ii) Samples must be taken for at least 30 minutes in each 

hour. 

(iii) Each sample must represent a 1-hour average. 

(iv) A minimum of 3 runs must be performed. 

(u) For facilities using a continuous emissions monitoring 

system to demonstrate continuous compliance with any of the 
Page 448 of 526 

emission limits of this subpart, you must complete the 

following: 

(1) Demonstrate compliance with the appropriate emission 

limit(s) using a 30-day rolling average of 1-hour arithmetic 

average emission concentrations, including CEMS data during 

startup and shutdown as defined in this subpart, calculated 

using Equation 19-19 in section 12.4.1 of EPA Reference Method 

19 at 40 CFR part 60, appendix A-7. CEMS data during startup and 

shutdown, as defined in this subpart, are not corrected to 7 

percent oxygen, and are measured at stack oxygen content. 

(2) Operate all continuous emissions monitoring system in 

accordance with the applicable procedures under appendices B and 

F of this part. 

(v) Use of the bypass stack at any time is an emissions 

standards deviation for particulate matter, HCl, Pb, Cd, Hg, NOx, 

SO2, and dioxin/furans. 

(w) For energy recovery units with a design heat input 

capacity of 100 MMBtu per hour or greater that do not use a 

carbon monoxide CEMS, you must install, operate, and maintain a 

oxygen analyzer system as defined in §60.2875 according to the 

procedures in paragraphs (w)(1) through (4) of this section. 

(1) The oxygen analyzer system must be installed by the 

initial performance test date specified in §60.2675. 
Page 449 of 526 

(2) You must operate the oxygen trim system within 

compliance with paragraph (w)(3) of this section at all times. 

(3) You must maintain the oxygen level such that the 30-day 

rolling average that is established as the operating limit for 

oxygen is not below the lowest hourly average oxygen 

concentration measured during the most recent CO performance 

test. 

(4) You must calculate and record a 30-day rolling average 

oxygen concentration using Equation 19-19 in section 12.4.1 of 

EPA Reference Method 19 of Appendix A-7 of this part. 

(x) For energy recovery units with annual average heat 

input rates greater than or equal to 250 MMBtu/hour and wasteburning kilns, you must install, calibrate, maintain, and 

operate a PM CPMS and record the output of the system as 

specified in paragraphs (x)(1) through (7) of this section. For 

other energy recovery units, you may elect to use PM CPMS 

operated in accordance with this section. PM CPMS are suitable 

in lieu of using other CMS for monitoring PM compliance (e.g., 

bag leak detectors, ESP secondary power, PM scrubber pressure) 

(1) Install, calibrate, operate, and maintain your PM CPMS 

according to the procedures in your approved site-specific 

monitoring plan developed in accordance with §60.2710(l) and 

(x)(1)(i) through (iii) of this section. 
Page 450 of 526 

(i) The operating principle of the PM CPMS must be based on 

in-stack or extractive light scatter, light scintillation, beta 

attenuation, or mass accumulation of the exhaust gas or 

representative sample. The reportable measurement output from 

the PM CPMS may be expressed as milliamps, stack concentration, 

or other raw data signal. 

(ii) The PM CPMS must have a cycle time (i.e., period 

required to complete sampling, measurement, and reporting for 

each measurement) no longer than 60 minutes. 

(iii) The PM CPMS must be capable of detecting and 

responding to particulate matter concentrations of no greater 

than 0.5 mg/actual cubic meter. 

(2) During the initial performance test or any such 

subsequent performance test that demonstrates compliance with 

the PM limit, you must: 

(i) Record all hourly average output values (e.g., 

milliamps, stack concentration, or other raw data signal) from 

the PM CPMS for the periods corresponding to the test runs 

(e.g., three 1-hour average PM CPMS output values for three 1-

hour test runs), and 

(ii) Determine your operating limit as the highest 1-hour 

average PM CPMS output value recorded during the performance 

test. You must verify an existing or establish a new operating 

limit after each repeated performance test. 
Page 451 of 526 

(3) Collect PM CPMS hourly average output data for all 

energy recovery unit or waste-burning kiln operating hours. 

Express the PM CPMS output as millamps, PM concentration, or 

other raw data signal value. 

(4) Calculate the arithmetic 30-day rolling average of all 

of the hourly average PM CPMS output collected during all energy 

recovery unit or waste-burning kiln operating hours data (e.g., 

milliamps, PM concentration, raw data signal). 

 (5) You must collect data using the PM CPMS at all times 

the energy recovery unit or waste-burning kiln is operating and 

at the intervals specified in paragraph (x)(1)(ii) of this 

section, except for periods of monitoring system malfunctions, 

repairs associated with monitoring system malfunctions, required 

monitoring system quality assurance or quality control 

activities (including, as applicable, calibration checks and 

required zero and span adjustments), and any scheduled 

maintenance as defined in your site-specific monitoring plan.

 (6) You must use all the data collected during all energy 

recovery unit or waste-burning kiln operating hours in assessing 

the compliance with your operating limit except:

 (i) Any data collected during monitoring system 

malfunctions, repairs associated with monitoring system 

malfunctions, or required monitoring system quality assurance or 

quality control activities conducted during monitoring system 
Page 452 of 526 

malfunctions are not used in calculations (report any such 

periods in your annual deviation report);

 (ii) Any data collected during periods when the monitoring 

system is out of control as specified in your site-specific 

monitoring plan, repairs associated with periods when the 

monitoring system is out of control, or required monitoring 

system quality assurance or quality control activities conducted 

during out-of-control periods are not used in calculations 

(report emissions or operating levels and report any such 

periods in your annual deviation report); 

 (iii) Any PM CPMS data recorded during periods of CEMS data 

during startup and shutdown, as defined in this subpart.

(7) You must record and make available upon request results 

of PM CPMS system performance audits, as well as the dates and 

duration of periods from when the PM CPMS is out of control 

until completion of the corrective actions necessary to return 

the PM CPMS to operation consistent with your site-specific 

monitoring plan. 

66. Section 60.2715 is revised to read as follows: 

§60.2715 By what date must I conduct the annual performance 

test?

You must conduct annual performance tests between 11 and 13 

months of the previous performance test. 

67. Section 60.2716 is added to read as follows:
Page 453 of 526 

§60.2716 By what date must I conduct the annual air pollution 

control device inspection?

On an annual basis (no more than 12 months following the 

previous annual air pollution control device inspection), you 

must complete the air pollution control device inspection as 

described in §60.2706. 

68. Section 60.2720 is revised to read as follows: 

§60.2720 May I conduct performance testing less often?

(a) You must conduct annual performance tests according to 

the schedule specified in §60.2715, with the following 

exceptions: 

(1) You may conduct a repeat performance test at any time 

to establish new values for the operating limits to apply from 

that point forward, as specified in §60.2725. The Administrator 

may request a repeat performance test at any time. 

(2) You must repeat the performance test within 60 days of 

a process change, as defined in §60.2875. 

(3) If the initial or any subsequent performance test for 

any pollutant in table 2 or tables 6 through 9 of this subpart, 

as applicable, demonstrates that the emission level for the 

pollutant is no greater than the emission level specified in 

paragraph (a)(3)(i) or (a)(3)(ii) of this section, as 

applicable, and you are not required to conduct a performance 

test for the pollutant in response to a request by the 
Page 454 of 526 

Administrator in paragraph (a)(1) of this section or a process 

change in paragraph (a)(2) of this section, you may elect to 

skip conducting a performance test for the pollutant for the 

next 2 years. You must conduct a performance test for the 

pollutant during the third year and no more than 37 months 

following the previous performance test for the pollutant. For 

cadmium and lead, both cadmium and lead must be emitted at 

emission levels no greater than their respective emission levels 

specified in paragraph (a)(3)(i) of this section for you to 

qualify for less frequent testing under this paragraph. 

(i) For particulate matter, hydrogen chloride, mercury, 

carbon monoxide, nitrogen oxides, sulfur dioxide, cadmium, lead, 

and dioxins/furans, the emission level equal to 75 percent of 

the applicable emission limit in table 2 or tables 6 through 9 

of this subpart, as applicable, to this subpart. 

(ii) For fugitive emissions, visible emissions (of 

combustion ash from the ash conveying system) for 2 percent of 

the time during each of the three 1-hour observations periods. 

(4) If you are conducting less frequent testing for a 

pollutant as provided in paragraph (a)(3) of this section and a 

subsequent performance test for the pollutant indicates that 

your CISWI unit does not meet the emission level specified in 

paragraph (a)(3)(i) or (a)(3)(ii) of this section, as 

applicable, you must conduct annual performance tests for the 
Page 455 of 526 

pollutant according to the schedule specified in paragraph (a) 

of this section until you qualify for less frequent testing for 

the pollutant as specified in paragraph (a)(3) of this section. 

69. Section 60.2730 is amended by revising paragraphs 

(b)(6) and (c) and adding paragraphs (d) through (s) to read as 

follows: 

§60.2730 What monitoring equipment must I install and what 

parameters must I monitor?

* * * * * 

(b) * * * 

(6) The bag leak detection system must be equipped with an 

alarm system that will alert automatically an operator when an 

increase in relative particulate matter emission over a preset 

level is detected. The alarm must be located where it is 

observed easily by plant operating personnel. 

* * * * * 

(c) If you are using something other than a wet scrubber, 

activated carbon, selective non-catalytic reduction, an 

electrostatic precipitator, or a dry scrubber to comply with the 

emission limitations under §60.2670, you must install, calibrate 

(to the manufacturers' specifications), maintain and operate the 

equipment necessary to monitor compliance with the site-specific 

operating limits established using the procedures in §60.2680. 
Page 456 of 526 

(d) If you use activated carbon injection to comply with 

the emission limitations in this subpart, you must measure the 

minimum sorbent flow rate once per hour. 

(e) If you use selective noncatalytic reduction to comply 

with the emission limitations, you must complete the following: 

(1) Following the date on which the initial performance 

test is completed or is required to be completed under §60.2690, 

whichever date comes first, ensure that the affected facility 

does not operate above the maximum charge rate, or below the 

minimum secondary chamber temperature (if applicable to your 

CISWI unit) or the minimum reagent flow rate measured as 3-hour 

block averages at all times. 

(2) Operation of the affected facility above the maximum 

charge rate, below the minimum secondary chamber temperature and 

below the minimum reagent flow rate simultaneously constitute a 

violation of the nitrogen oxides emissions limit. 

(f) If you use an electrostatic precipitator to comply with 

the emission limits of this subpart, you must monitor the 

secondary power to the electrostatic precipitator collection 

plates and maintain the 3-hour block averages at or above the 

operating limits established during the mercury or particulate 

matter performance test. 

(g) For waste-burning kilns not equipped with a wet 

scrubber or a dry scrubber, in place of hydrogen chloride 
Page 457 of 526 

testing with EPA Method 321 at 40 CFR part 63, appendix A, an 

owner or operator must install, calibrate, maintain, and operate 

a CEMS for monitoring hydrogen chloride emissions discharged to 

the atmosphere and record the output of the system. To 

demonstrate continuous compliance with the hydrogen chloride 

emissions limit for units other than waste-burning kilns not 

equipped with a wet scrubber or dry scrubber, a facility may 

substitute use of a hydrogen chloride continuous emissions 

monitoring system for conducting the hydrogen chloride annual 

performance test, monitoring the minimum hydrogen chloride 

sorbent flow rate, monitoring the minimum scrubber liquor pH, 

and monitoring minimum injection rate. 

(h) To demonstrate continuous compliance with the 

particulate matter emissions limit, a facility may substitute 

use of a particulate matter continuous emissions monitoring 

system for conducting the particulate matter annual performance 

test and other CMS monitoring for PM compliance (e.g., bag leak 

detectors, ESP secondary power, PM scrubber pressure). 

(i) To demonstrate continuous compliance with the 

dioxin/furan emissions limit, a facility may substitute use of a 

continuous automated sampling system for the dioxin/furan annual 

performance test. You must record the output of the system and 

analyze the sample according to EPA Method 23 at 40 CFR part 60, 

appendix A-7. This option to use a continuous automated sampling 
Page 458 of 526 

system takes effect on the date a final performance 

specification applicable to dioxin/furan from continuous 

monitors is published in the Federal Register. The owner or 

operator who elects to continuously sample dioxin/furan 

emissions instead of sampling and testing using EPA Method 23 at 

40 CFR part 60, appendix A-7 must install, calibrate, maintain 

and operate a continuous automated sampling system and must 

comply with the requirements specified in §60.58b(p) and (q). A 

facility may substitute continuous dioxin/furan monitoring for 

the minimum sorbent flow rate, if activated carbon sorbent 

injection is used solely for compliance with the dioxin/furan 

emission limit. 

(j) To demonstrate continuous compliance with the mercury 

emissions limit, a facility may substitute use of a continuous 

automated sampling system for the mercury annual performance 

test. You must record the output of the system and analyze the 

sample at set intervals using any suitable determinative 

technique that can meet performance specification 12B criteria. 

This option to use a continuous automated sampling system takes 

effect on the date a final performance specification applicable 

to mercury from monitors is published in the Federal Register. 

The owner or operator who elects to continuously sample mercury 

emissions instead of sampling and testing using EPA Method 29 or 

30B at 40 CFR part 60, appendix A-8, ASTM D6784-02 (Reapproved 
Page 459 of 526 

2008) (incorporated by reference, see §60.17), or an approved 

alternative method for measuring mercury emissions, must 

install, calibrate, maintain and operate a continuous automated 

sampling system and must comply with the requirements specified 

in §60.58b(p) and (q). A facility may substitute continuous 

mercury monitoring for the minimum sorbent flow rate, if 

activated carbon sorbent injection is used solely for compliance 

with the mercury emission limit. 

(k) To demonstrate continuous compliance with the nitrogen 

oxides emissions limit, a facility may substitute use of a 

continuous emissions monitoring system for the nitrogen oxides 

annual performance test to demonstrate compliance with the 

nitrogen oxides emissions limits and monitoring the charge rate, 

secondary chamber temperature and reagent flow for selective 

noncatalytic reduction, if applicable. 

(1) Install, calibrate, maintain and operate a CEMS for 

measuring nitrogen oxides emissions discharged to the atmosphere 

and record the output of the system. The requirements under 

performance specification 2 of appendix B of this part, the 

quality assurance procedure 1 of appendix F of this part and the 

procedures under §60.13 must be followed for installation, 

evaluation and operation of the CEMS. 

(2) Following the date that the initial performance test 

for nitrogen oxides is completed or is required to be completed 
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under §60.2690, compliance with the emission limit for nitrogen 

oxides required under §60.52b(d) must be determined based on the 

30-day rolling average of the hourly emission concentrations 

using CEMS outlet data. The 1-hour arithmetic averages must be 

expressed in parts per million by volume corrected to 7 percent 

oxygen (dry basis) and used to calculate the 30-day rolling 

average concentrations. CEMS data during startup and shutdown, 

as defined in this subpart, are not corrected to 7 percent 

oxygen, and are measured at stack oxygen content. The 1-hour 

arithmetic averages must be calculated using the data points 

required under §60.13(e)(2). 

(l) To demonstrate continuous compliance with the sulfur 

dioxide emissions limit, a facility may substitute use of a 

continuous automated sampling system for the sulfur dioxide 

annual performance test to demonstrate compliance with the 

sulfur dioxide emissions limits. 

(1) Install, calibrate, maintain and operate a CEMS for 

measuring sulfur dioxide emissions discharged to the atmosphere 

and record the output of the system. The requirements under 

performance specification 2 of appendix B of this part, the 

quality assurance requirements of procedure 1 of appendix F of 

this part and the procedures under §60.13 must be followed for 

installation, evaluation and operation of the CEMS. 
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(2) Following the date that the initial performance test 

for sulfur dioxide is completed or is required to be completed 

under §60.2690, compliance with the sulfur dioxide emission 

limit may be determined based on the 30-day rolling average of 

the hourly arithmetic average emission concentrations using CEMS 

outlet data. The 1-hour arithmetic averages must be expressed in 

parts per million corrected to 7 percent oxygen (dry basis) and 

used to calculate the 30-day rolling average emission 

concentrations. CEMS data during startup and shutdown, as 

defined in this subpart, are not corrected to 7 percent oxygen, 

and are measured at stack oxygen content. The 1-hour arithmetic 

averages must be calculated using the data points required under 

§60.13(e)(2). 

(m) For energy recovery units that do not use a wet 

scrubber, fabric filter with bag leak detection system, or 

particulate matter CEMS, you must install, operate, certify and 

maintain a continuous opacity monitoring system according to the 

procedures in paragraphs (m)(1) through (5) of this section by 

the compliance date specified in §60.2670. Energy recovery units 

that use a particulate matter continuous emissions monitoring 

system to demonstrate initial and continuing compliance 

according to the procedures in §60.2730(n) are not required to 

install a continuous opacity monitoring system and must perform 
Page 462 of 526 

the annual performance tests for opacity consistent with 

§60.2710(f). 

(1) Install, operate and maintain each continuous opacity 

monitoring system according to performance specification 1 at 40 

CFR part 60, appendix B. 

(2) Conduct a performance evaluation of each continuous 

opacity monitoring system according to the requirements in 

§60.13 and according to performance specification 1 at 40 CFR 

part 60, appendix B. 

(3) As specified in §60.13(e)(1), each continuous opacity 

monitoring system must complete a minimum of one cycle of 

sampling and analyzing for each successive 10-second period and 

one cycle of data recording for each successive 6-minute period. 

(4) Reduce the continuous opacity monitoring system data as 

specified in §60.13(h)(1). 

(5) Determine and record all the 6-minute averages (and 1-

hour block averages as applicable) collected. 

(n) For energy recovery units with annual average heat 

input rates greater than 250 MMBtu/hr and waste-burning kilns, 

in place of particulate matter testing with EPA Method 5 at 40 

CFR part 60, appendix A-3, an owner or operator may install, 

calibrate, maintain and operate a CEMS for monitoring 

particulate matter emissions discharged to the atmosphere and 

record the output of the system. The owner or operator of an 
Page 463 of 526 

affected facility who continuously monitors particulate matter 

emissions instead of conducting performance testing using EPA 

Method 5 at 40 CFR part 60, appendix A-3 must install, 

calibrate, maintain and operate a CEMS and must comply with the 

requirements specified in paragraphs (n)(1) through (n)(13) of 

this section. 

(1) Notify the Administrator 1 month before starting use of 

the system. 

(2) Notify the Administrator 1 month before stopping use of 

the system. 

(3) The monitor must be installed, evaluated and operated 

in accordance with the requirements of performance specification 

11 of appendix B of this part and quality assurance requirements 

of procedure 2 of appendix F of this part and §60.13. 

(4) The initial performance evaluation must be completed no 

later than 180 days after the final compliance date for meeting 

the amended emission limitations, as specified under §60.2690 or 

within 180 days of notification to the Administrator of use of 

the continuous monitoring system if the owner or operator was 

previously determining compliance by Method 5 at 40 CFR part 60, 

appendix A-3 performance tests, whichever is later. 

(5) The owner or operator of an affected facility may 

request that compliance with the particulate matter emission 

limit be determined using carbon dioxide measurements corrected 
Page 464 of 526 

to an equivalent of 7 percent oxygen. The relationship between 

oxygen and carbon dioxide levels for the affected facility must 

be established according to the procedures and methods specified 

in §60.2710(s)(5)(i) through (s)(5)(iv). 

(6) The owner or operator of an affected facility must 

conduct an initial performance test for particulate matter 

emissions as required under §60.2690. Compliance with the 

particulate matter emission limit, if PM CEMS are elected for 

demonstrating compliance, must be determined by using the CEMS 

specified in paragraph (n) of this section to measure 

particulate matter. You must calculate a 30-day rolling average 

of 1-hour arithmetic average emission concentrations, including 

CEMS data during startup and shutdown as defined in this 

subpart, using Equation 19-19 in section 12.4.1 of EPA Reference 

Method 19 at 40 CFR part 60, appendix A-7 of this part. 

(7) Compliance with the particulate matter emission limit 

must be determined based on the 30-day rolling average 

calculated using Equation 19-19 in section 12.4.1 of EPA 

Reference Method 19 at 40 CFR part 60, Appendix A-7 of the part 

from the 1-hour arithmetic average of the CEMS outlet data. 

(8) At a minimum, valid continuous monitoring system hourly 

averages must be obtained as specified §60.2735. 

(9) The 1-hour arithmetic averages required under paragraph 

(n)(7) of this section must be expressed in milligrams per dry 
Page 465 of 526 

standard cubic meter corrected to 7 percent oxygen (or carbon 

dioxide)(dry basis) and must be used to calculate the 30-day 

rolling average emission concentrations. CEMS data during 

startup and shutdown, as defined in this subpart, are not 

corrected to 7 percent oxygen, and are measured at stack oxygen 

content. The 1-hour arithmetic averages must be calculated using 

the data points required under §60.13(e)(2). 

(10) All valid CEMS data must be used in calculating 

average emission concentrations even if the minimum CEMS data 

requirements of paragraph (n)(8) of this section are not met. 

(11) The CEMS must be operated according to performance 

specification 11 in appendix B of this part. 

(12) During each relative accuracy test run of the CEMS 

required by performance specification 11 in appendix B of this 

part, particulate matter and oxygen (or carbon dioxide) data 

must be collected concurrently (or within a 30-to 60-minute 

period) by both the continuous emissions monitors and the 

following test methods. 

(i) For particulate matter, EPA Reference Method 5 at 40 

CFR part 60, appendix A-3 must be used. 

(ii) For oxygen (or carbon dioxide), EPA Reference Method 

3A or 3B at 40 CFR part 60, appendix A-2, as applicable, must be 

used. 
Page 466 of 526 

(13) Quarterly accuracy determinations and daily 

calibration drift tests must be performed in accordance with 

procedure 2 in appendix F of this part. 

(o) To demonstrate continuous compliance with the carbon 

monoxide emissions limit, a facility may substitute use of a 

continuous automated sampling system for the carbon monoxide 

annual performance test to demonstrate compliance with the 

carbon monoxide emissions limits. 

(1) Install, calibrate, maintain, and operate a CEMS for 

measuring carbon monoxide emissions discharged to the atmosphere 

and record the output of the system. The requirements under 

performance specification 4B of appendix B of this part, the 

quality assurance procedure 1 of appendix F of this part and the 

procedures under §60.13 must be followed for installation, 

evaluation, and operation of the CEMS. 

(2) Following the date that the initial performance test 

for carbon monoxide is completed or is required to be completed 

under §60.2690, compliance with the carbon monoxide emission 

limit may be determined based on the 30-day rolling average of 

the hourly arithmetic average emission concentrations, including 

CEMS data during startup and shutdown as defined in this 

subpart, using CEMS outlet data. Except for CEMS data during 

startup and shutdown, as defined in this subpart, the 1-hour 

arithmetic averages must be expressed in parts per million 
Page 467 of 526 

corrected to 7 percent oxygen (dry basis) and used to calculate 

the 30-day rolling average emission concentrations. CEMS data 

collected during startup or shutdown, as defined in this 

subpart, are not corrected to 7 percent oxygen, and are measured 

at stack oxygen content. The 1-hour arithmetic averages must be 

calculated using the data points required under §60.13(e)(2). 

(p) The owner/operator of an affected source with a bypass 

stack shall install, calibrate (to manufacturers’ 

specifications), maintain and operate a device or method for 

measuring the use of the bypass stack including date, time and 

duration. 

(q) For energy recovery units with a design heat input 

capacity of 100 MMBtu per hour or greater that do not use a 

carbon monoxide CEMS, you must install, operate, and maintain a 

oxygen analyzer system as defined in §60.2875 according to the 

procedures in paragraphs (q)(1) through (4) of this section. 

(1) The oxygen analyzer system must be installed by the 

initial performance test date specified in §60.2675. 

(2) You must operate the oxygen trim system within 

compliance with paragraph (q)(3) of this section at all times. 

(3) You must maintain the oxygen level such that the 30-day 

rolling average that is established as the operating limit for 

oxygen according to paragraph (q)(4) of this section is not 
Page 468 of 526 

below the lowest hourly average oxygen concentration measured 

during the most recent CO performance test. 

(4) You must calculate and record a 30-day rolling average 

oxygen concentration using Equation 19-19 in section 12.4.1 of 

EPA Reference Method 19 of Appendix A-7 of this part. 

(r) For energy recovery units with annual average heat 

input rates greater than or equal to 250 MMBtu/hour and wasteburning kilns, you must install, calibrate, maintain, and 

operate a PM CPMS and record the output of the system as 

specified in paragraphs (r)(1) through (7) of this section. For 

other energy recovery units, you may elect to use PM CPMS 

operated in accordance with this section. PM CPMS are suitable 

in lieu of using other CMS for monitoring PM compliance (e.g., 

bag leak detectors, ESP secondary power, PM scrubber pressure) 

(1) Install, calibrate, operate, and maintain your PM CPMS 

according to the procedures in your approved site-specific 

monitoring plan developed in accordance with §60.2710(l) and 

(r)(1)(i) through (iii) of this section. 

(i) The operating principle of the PM CPMS must be based on 

in-stack or extractive light scatter, light scintillation, beta 

attenuation, or mass accumulation detection of the exhaust gas 

or representative sample. The reportable measurement output from 

the PM CPMS may be expressed as milliamps, stack concentration, 

or other raw data signal. 
Page 469 of 526 

(ii) The PM CPMS must have a cycle time (i.e., period 

required to complete sampling, measurement, and reporting for 

each measurement) no longer than 60 minutes. 

(iii) The PM CPMS must be capable of detecting and 

responding to particulate matter concentrations of no greater 

than 0.5 mg/actual cubic meter. 

(2) During the initial performance test or any such 

subsequent performance test that demonstrates compliance with 

the PM limit, you must: 

(i) Record all hourly average output values (e.g., 

milliamps, stack concentration, or other raw data signal) from 

the PM CPMS for the periods corresponding to the test runs 

(e.g., three 1-hour average PM CPMS output values for three 1-

hour test runs), and 

(ii) Determine your operating limit as the highest 1-hour 

average PM CPMS output value recorded during the performance 

test. You must verify an existing or establish a new operating 

limit after each repeated performance test. 

(3) Collect PM CPMS hourly average output data for all 

energy recovery unit or waste-burning kiln operating hours. 

Express the PM CPMS output as millamps, PM concentration, or 

other raw data signal value. 

(4) Calculate the arithmetic 30-day rolling average of all 

of the hourly average PM CPMS output collected during all energy 
Page 470 of 526 

recovery unit or waste-burning kiln operating hours data (e.g., 

milliamps, PM concentration, raw data signal). 

 (5) You must collect data using the PM CPMS at all times 

the energy recovery unit or waste-burning kiln is operating and 

at the intervals specified in paragraph (x)(1)(ii) of this 

section, except for periods of monitoring system malfunctions, 

repairs associated with monitoring system malfunctions, required 

monitoring system quality assurance or quality control 

activities (including, as applicable, calibration checks and 

required zero and span adjustments), and any scheduled 

maintenance as defined in your site-specific monitoring plan.

 (6) You must use all the data collected during all energy 

recovery unit or waste-burning kiln operating hours in assessing 

the compliance with your operating limit except:

 (i) Any data collected during monitoring system 

malfunctions, repairs associated with monitoring system 

malfunctions, or required monitoring system quality assurance or 

quality control activities conducted during monitoring system 

malfunctions are not used in calculations (report any such 

periods in your annual deviation report);

 (ii) Any data collected during periods when the monitoring 

system is out of control as specified in your site-specific 

monitoring plan, repairs associated with periods when the 

monitoring system is out of control, or required monitoring 
Page 471 of 526 

system quality assurance or quality control activities conducted 

during out-of-control periods are not used in calculations 

(report emissions or operating levels and report any such 

periods in your annual deviation report); 

 (iii) Any PM CPMS data recorded during periods of CEMS data 

during startup and shutdown, as defined in this subpart.

(7) You must record and make available upon request results 

of PM CPMS system performance audits, as well as the dates and 

duration of periods from when the PM CPMS is out of control 

until completion of the corrective actions necessary to return 

the PM CPMS to operation consistent with your site-specific 

monitoring plan. 

(s) If you use a dry scrubber to comply with the emission 

limits of this subpart, you must monitor the injection rate of 

each sorbent and maintain the 3-hour block averages at or above 

the operating limits established during the hydrogen chloride 

performance test. 

70. Section 60.2735 is revised to read as follows: 

§60.2735 Is there a minimum amount of monitoring data I must 

obtain?

For each continuous monitoring system required or 

optionally allowed under §60.2730, you must monitor and collect 

data according to this section: 
Page 472 of 526 

(a) You must operate the monitoring system and collect data 

at all required intervals at all times compliance is required 

except for periods of monitoring system malfunctions or out-ofcontrol periods, repairs associated with monitoring system 

malfunctions or out-of-control periods (as specified in 

§60.2770(o) of this part), and required monitoring system 

quality assurance or quality control activities including, as 

applicable, calibration checks and required zero and span 

adjustments. A monitoring system malfunction is any sudden, 

infrequent, not reasonably preventable failure of the monitoring 

system to provide valid data. Monitoring system failures that 

are caused in part by poor maintenance or careless operation are 

not malfunctions. You are required to effect monitoring system 

repairs in response to monitoring system malfunctions or out-ofcontrol periods and to return the monitoring system to operation 

as expeditiously as practicable. 

(b) You may not use data recorded during the monitoring 

system malfunctions, repairs associated with monitoring system 

malfunctions or out-of control periods, or required monitoring 

system quality assurance or control activities in calculations 

used to report emissions or operating levels. You must use all 

the data collected during all other periods in assessing the 

operation of the control device and associated control system. 
Page 473 of 526 

(c) Except for periods of monitoring system malfunctions or 

out-of-control periods, repairs associated with monitoring 

system malfunctions or out-of-control periods, and required 

monitoring system quality assurance or quality control 

activities including, as applicable, calibration checks and 

required zero and span adjustments, failure to collect required 

data is a deviation of the monitoring requirements. 

71. Section 60.2740 is amended by: 

a. Revising the introductory text. 

b. Revising paragraphs (b)(5) and (e). 

c. Removing and reserving paragraphs (c) and (d). 

d. Adding paragraphs (n) through (u). 

§60.2740 What records must I keep?

You must maintain the items (as applicable) as specified in 

paragraphs (a), (b), and (e) through (u) of this section for a 

period of at least 5 years: 

* * * * * 

(b) * * * 

(5) For affected CISWI units that establish operating 

limits for controls other than wet scrubbers under §60.2675(d) 

through (g) or §60.2680, you must maintain data collected for 

all operating parameters used to determine compliance with the 

operating limits. 

* * * * * 
Page 474 of 526 

(c) [Reserved] 

(d) [Reserved] 

(e) Identification of calendar dates and times for which 

data show a deviation from the operating limits in table 3 of 

this subpart or a deviation from other operating limits 

established under §60.2675(d) through (g) or §60.2680 with a 

description of the deviations, reasons for such deviations, and 

a description of corrective actions taken. 

* * * * * 

(n) Maintain records of the annual air pollution control 

device inspections that are required for each CISWI unit subject 

to the emissions limits in table 2 of this subpart or tables 6 

through 9 of this subpart, any required maintenance and any 

repairs not completed within 10 days of an inspection or the 

timeframe established by the state regulatory agency. 

(o) For continuously monitored pollutants or parameters, 

you must document and keep a record of the following parameters 

measured using continuous monitoring systems. 

(1) All 6-minute average levels of opacity. 

(2) All 1-hour average concentrations of sulfur dioxide 

emissions. 

(3) All 1-hour average concentrations of nitrogen oxides 

emissions. 
Page 475 of 526 

(4) All 1-hour average concentrations of carbon monoxide 

emissions. You must indicate which data are CEMS data during 

startup and shutdown. 

(5) All 1-hour average concentrations of particulate matter 

emissions. 

(6) All 1-hour average concentrations of mercury emissions. 

(7) All 1-hour average concentrations of hydrogen chloride 

emissions. 

(8) All 1-hour average percent oxygen concentrations. 

(9) All 1-hour average PM CPMS readings or particulate 

matter continuous emissions monitor outputs. 

(p) Records indicating use of the bypass stack, including 

dates, times and durations. 

(q) If you choose to stack test less frequently than 

annually, consistent with §60.2720(a) through (c), you must keep 

annual records that document that your emissions in the previous 

stack test(s) were less than 75 percent of the applicable 

emission limit and document that there was no change in source 

operations including fuel composition and operation of air 

pollution control equipment that would cause emissions of the 

relevant pollutant to increase within the past year. 

(r) Records of the occurrence and duration of each 

malfunction of operation (i.e., process equipment) or the air 

pollution control and monitoring equipment. 
Page 476 of 526 

(s) Records of all required maintenance performed on the 

air pollution control and monitoring equipment. 

(t) Records of actions taken during periods of malfunction 

to minimize emissions in accordance with §60.11(d), including 

corrective actions to restore malfunctioning process and air 

pollution control and monitoring equipment to its normal or 

usual manner of operation. 

(u) For operating units that combust non-hazardous 

secondary materials that have been determined not to be solid 

waste pursuant to §241.3(b)(1), you must keep a record which 

documents how the secondary material meets each of the 

legitimacy criteria under §241.3(d)(1). If you combust a fuel 

that has been processed from a discarded non-hazardous secondary 

material pursuant to §241.3(b)(4), you must keep records as to 

how the operations that produced the fuel satisfies the 

definition of processing in §241.2 and each of the legitimacy 

criteria in §241.3(d)(1) of this chapter. If the fuel received a 

non-waste determination pursuant to the petition process 

submitted under §241.3(c), you must keep a record that documents 

how the fuel satisfies the requirements of the petition process. 

For operating units that combust non-hazardous secondary 

materials as fuel per §241.4, you must keep records documenting 

that the material is a listed non-waste under §241.4(a). 
Page 477 of 526 

72. Section 60.2770 is amended by revising paragraph (e) 

and adding paragraphs (k) through (p) to read as follows: 

§60.2770 What information must I include in my annual report?

* * * * * 

(e) If no deviation from any emission limitation or 

operating limit that applies to you has been reported, a 

statement that there was no deviation from the emission 

limitations or operating limits during the reporting period. 

* * * * * 

(k) If you had a malfunction during the reporting period, 

the compliance report must include the number, duration, and a 

brief description for each type of malfunction that occurred 

during the reporting period and that caused or may have caused 

any applicable emission limitation to be exceeded. The report 

must also include a description of actions taken by an owner or 

operator during a malfunction of an affected source to minimize 

emissions in accordance with §60.11(d), including actions taken 

to correct a malfunction. 

(l) For each deviation from an emission or operating 

limitation that occurs for a CISWI unit for which you are not 

using a CMS to comply with the emission or operating limitations 

in this subpart, the annual report must contain the following 

information. 
Page 478 of 526 

(1) The total operating time of the CISWI unit at which the 

deviation occurred during the reporting period. 

(2) Information on the number, duration, and cause of 

deviations (including unknown cause, if applicable), as 

applicable, and the corrective action taken. 

(m) If there were periods during which the continuous 

monitoring system, including the CEMS, was out of control as 

specified in paragraph (o) of this section, the annual report 

must contain the following information for each deviation from 

an emission or operating limitation occurring for a CISWI unit 

for which you are using a continuous monitoring system to comply 

with the emission and operating limitations in this subpart. 

(1) The date and time that each malfunction started and 

stopped. 

(2) The date, time, and duration that each CMS was 

inoperative, except for zero (low-level) and high-level checks. 

(3) The date, time, and duration that each continuous 

monitoring system was out-of-control, including start and end 

dates and hours and descriptions of corrective actions taken. 

(4) The date and time that each deviation started and 

stopped, and whether each deviation occurred during a period of 

malfunction or during another period. 
Page 479 of 526 

(5) A summary of the total duration of the deviation during 

the reporting period, and the total duration as a percent of the 

total source operating time during that reporting period. 

(6) A breakdown of the total duration of the deviations 

during the reporting period into those that are due to control 

equipment problems, process problems, other known causes, and 

other unknown causes. 

(7) A summary of the total duration of continuous 

monitoring system downtime during the reporting period, and the 

total duration of continuous monitoring system downtime as a 

percent of the total operating time of the CISWI unit at which 

the continuous monitoring system downtime occurred during that 

reporting period. 

(8) An identification of each parameter and pollutant that 

was monitored at the CISWI unit. 

(9) A brief description of the CISWI unit. 

(10) A brief description of the continuous monitoring 

system. 

(11) The date of the latest continuous monitoring system 

certification or audit. 

(12) A description of any changes in continuous monitoring 

system, processes, or controls since the last reporting period. 

(n) If there were periods during which the continuous 

monitoring system, including the CEMS, was not out of control as 
Page 480 of 526 

specified in paragraph (o) of this section, a statement that 

there were not periods during which the continuous monitoring 

system was out of control during the reporting period. 

(o) A continuous monitoring system is out of control if any 

of the following occur. 

(1) The zero (low-level), mid-level (if applicable), or 

high-level calibration drift exceeds two times the applicable 

calibration drift specification in the applicable performance 

specification or in the relevant standard. 

(2) The continuous monitoring system fails a performance 

test audit (e.g., cylinder gas audit), relative accuracy audit, 

relative accuracy test audit, or linearity test audit. 

(3) The continuous opacity monitoring system calibration 

drift exceeds two times the limit in the applicable performance 

specification in the relevant standard. 

(p) For energy recovery units, include the annual heat 

input and average annual heat input rate of all fuels being 

burned in the unit to verify which subcategory of energy 

recovery unit applies. 

73. Section 60.2780 is amended by revising paragraph (c) 

and removing paragraphs (e) and (f). 

§60.2780 What must I include in the deviation report?

* * * * * 

(c) Durations and causes of the following: 
Page 481 of 526 

(1) Each deviation from emission limitations or operating 

limits and your corrective actions. 

(2) Bypass events and your corrective actions. 

* * * * * 

74. Section 60.2790 is revised to read as follows: 

§60.2790 Are there any other notifications or reports that I 

must submit? 

(a) Yes. You must submit notifications as provided by 

§60.7. 

(b) If you cease combusting solid waste but continue to 

operate, you must provide 30 days prior notice of the effective 

date of the waste-to-fuel switch, consistent with §60.2710(a). 

The notification must identify: 

(1) The name of the owner or operator of the CISWI unit, 

the location of the source, the emissions unit(s) that will 

cease burning solid waste, and the date of the notice; 

(2) The currently applicable subcategory under this 

subpart, and any 40 CFR part 63 subpart and subcategory that 

will be applicable after you cease combusting solid waste; 

(3) The fuel(s), non-waste material(s) and solid waste(s) 

the CISWI unit is currently combusting and has combusted over 

the past 6 months, and the fuel(s) or non-waste materials the 

unit will commence combusting; 
Page 482 of 526 

(4) The date on which you became subject to the currently 

applicable emission limits; 

(5) The date upon which you will cease combusting solid 

waste, and the date (if different) that you intend for any new 

requirements to become applicable (i.e., the effective date of 

the waste-to-fuel switch), consistent with (2) and (3)) above. 

75. Section 60.2795 is revised to read as follows: 

§60.2795 In what form can I submit my reports?

(a) Submit initial, annual, and deviation reports 

electronically or in paper format, postmarked on or before the 

submittal due dates. 

(b)(1) Within 60 days after the date of completing each 

performance test as required by this subpart, you must submit 

the results of the performance tests required by this subpart to 

EPA’s WebFIRE database by using the Compliance and Emissions 

Data Reporting Interface (CEDRI) that is accessed through EPA’s 

Central Data Exchange (CDX)(www.epa.gov/cdx). Performance test 

data must be submitted in the file format generated through use 

of EPA’s Electronic Reporting Tool (ERT) (see 

http://www.epa.gov/ttn/chief/ert/index.html). Only data 

collected using test methods on the ERT website are subject to 

this requirement for submitting reports electronically to 

WebFIRE. Owners or operators who claim that some of the 

information being submitted for performance tests is 
Page 483 of 526 

confidential business information (CBI) must submit a complete 

ERT file including information claimed to be CBI on a compact 

disk, flash drives, or other commonly used electronic storage 

media to EPA. The electronic media must be clearly marked as CBI 

and mailed to U.S. EPA/OAPQS/CORE CBI Office, Attention: WebFIRE 

Administrator, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. 

The same ERT file with the CBI omitted must be submitted to EPA 

via CDX as described earlier in this paragraph. At the 

discretion of the delegated authority, you must also submit 

these reports, including the confidential business information, 

to the delegated authority in the format specified by the 

delegated authority. For any performance test conducted using 

test methods that are not listed on the ERT website, the owner 

or operator shall submit the results of the performance test in 

paper submissions to the Administrator. 

(2) Within 60 days after the date of completing each CEMS 

performance evaluation test, as defined in this subpart and 

required by this subpart, you must submit the relative accuracy 

test audit (RATA) data electronically into EPA’s Central Data 

Exchange by using CEDRI as mentioned in paragraph (b)(1) of this 

section. Only RATA pollutants that can be documented with the 

ERT (as listed on the ERT website) are subject to this 

requirement. For any performance evaluations with no 

corresponding RATA pollutants listed on the ERT website, the 
Page 484 of 526 

owner or operator shall submit the results of the performance 

evaluation in paper submissions to the Administrator. 

76. Section 60.2805 is revised to read as follows: 

§60.2805 Am I required to apply for and obtain a Title V 

operating permit for my unit?

Yes. Each CISWI unit and air curtain incinerator subject to 

standards under this subpart must operate pursuant to a permit 

issued under Clean Air Act sections 129(e) and Title V. 

* * * * * 

77. Section 60.2860 is revised to read as follows: 

§60.2860 What are the emission limitations for air curtain 

incinerators?

After the date the initial stack test is required or 

completed (whichever is earlier), you must meet the limitations 

in paragraphs (a) and (b) of this section. 

(a) Maintain opacity to less than or equal to 10 percent 

opacity (as determined by the average of three 1-hour blocks 

consisting of ten 6-minute average opacity values), except as 

described in paragraph (b) of this section. 

(b) Maintain opacity to less than or equal to 35 percent 

opacity (as determined by the average of three 1-hour blocks 

consisting of ten 6-minute average opacity values) during the 

startup period that is within the first 30 minutes of operation. 

* * * * * 
Page 485 of 526 

78. Section 60.2870 is amended by revising paragraph 

(c)(2) to read as follows: 

§60.2870 What are the recordkeeping and reporting requirements 

for air curtain incinerators?

* * * * * 

(c) * * * 

(2) The results (as determined by the average of three 1-

hour blocks consisting of ten 6-minute average opacity values) 

of the initial opacity tests. 

* * * * * 

79. Section 60.2875 is amended by: 

a. Adding definitions for “30-day rolling average,” 

“Affirmative defense,” “Annual heat input,” “Average annual heat 

input rate,” “Burn-off oven,” “Bypass stack,” “CEMS data during 

startup and shutdown”, “Chemical recovery unit,” “Continuous 

monitoring system,” “Dry scrubber,” “Energy recovery unit,” 

“Energy recovery unit designed to burn biomass (Biomass),” 

“Energy recovery unit designed to burn coal (Coal),” “Energy 

recovery unit designed to burn liquid wastes material and gas 

(Liquid/gas),” “Energy recovery unit designed to burn solid 

materials (Solid),” “Foundry sand thermal reclamation unit,” 

“Incinerator,” “Kiln,” “Laboratory analysis unit,” “Minimum 

voltage or amperage,” “Opacity,” “Operating day,” “Oxygen 

analyzer system,” “Oxygen trim system,” “Performance 
Page 486 of 526 

evaluation,” “Performance test,” “Process change,” “Raw mill,” 

“Responsible official,” “Small remote incinerator,” “Soil 

treatment unit,” “Solid waste incineration unit,” “Space heater” 

and “Waste-burning kiln,” in alphabetical order. 

b. Revising the definition for “Commercial and industrial 

solid waste incineration (CISWI) unit,” “Cyclonic burn barrel”, 

“Modification,” “Solid waste,” and “Wet scrubber.” 

c. Removing paragraph (3) of the definition for 

“Deviation.” 

d. Removing the definition for “Agricultural waste,” and 

“Commercial or industrial waste.” 

§60.2875 What definitions must I know?

* * * 

30-day rolling average means the arithmetic mean of the 

previous 720 hours of valid operating data. Valid data excludes 

periods when this unit is not operating. The 720 hours should be 

consecutive, but not necessarily continuous if operations are 

intermittent. 

Affirmative defense means, in the context of an enforcement 

proceeding, a response or defense put forward by a defendant, 

regarding which the defendant has the burden of proof, and the 

merits of which are independently and objectively evaluated in a 

judicial or administrative proceeding. 
Page 487 of 526 

Annual heat input means the heat input for the 12 months 

preceding the compliance demonstration. 

Average annual heat input rate means annual heat input 

divided by the hours of operation for the 12 months preceding 

the compliance demonstration. 

* * * 

Burn-off oven means any rack reclamation unit, part 

reclamation unit, or drum reclamation unit. A burn-off oven is 

not an incinerator, waste-burning kiln, an energy recovery unit 

or a small, remote incinerator under this subpart. 

Bypass stack means a device used for discharging combustion 

gases to avoid severe damage to the air pollution control device 

or other equipment. 

* * * 

CEMS data during startup and shutdown means CEMS data 

collected during the first hours of operation of a CISWI unit 

startup from a cold start until waste is fed to the unit and the 

hours of operation following the cessation of waste material 

being fed to the CISWI unit during a unit shutdown. For each 

startup event, the length of time that CEMS data may be claimed 

as being CEMS data during startup must be 48 operating hours or 

less. For each shutdown event, the length of time that CEMS data 

may be claimed as being CEMS data during shutdown must be 24 

operating hours or less. 
Page 488 of 526 

Chemical recovery unit means combustion units burning 

materials to recover chemical constituents or to produce 

chemical compounds where there is an existing commercial market 

for such recovered chemical constituents or compounds. A 

chemical recovery unit is not an incinerator, waste-burning 

kiln, an energy recovery unit or a small, remote incinerator 

under this subpart. The following seven types of units are 

considered chemical recovery units: 

(1) Units burning only pulping liquors (i.e., black liquor) 

that are reclaimed in a pulping liquor recovery process and 

reused in the pulping process. 

(2) Units burning only spent sulfuric acid used to produce 

virgin sulfuric acid. 

(3) Units burning only wood or coal feedstock for the 

production of charcoal. 

(4) Units burning only manufacturing byproduct 

streams/residue containing catalyst metals that are reclaimed 

and reused as catalysts or used to produce commercial grade 

catalysts. 

(5) Units burning only coke to produce purified carbon 

monoxide that is used as an intermediate in the production of 

other chemical compounds. 
Page 489 of 526 

(6) Units burning only hydrocarbon liquids or solids to 

produce hydrogen, carbon monoxide, synthesis gas, or other gases 

for use in other manufacturing processes. 

(7) Units burning only photographic film to recover silver. 

* * * * * 

Commercial and industrial solid waste incineration (CISWI) 

unit means any distinct operating unit of any commercial or 

industrial facility that combusts, or has combusted in the 

preceding 6 months, any solid waste as that term is defined in 

40 CFR part 241. If the operating unit burns materials other 

than traditional fuels as defined in §241.2 that have been 

discarded, and you do not keep and produce records as required 

by §60.2740(u), the material is a solid waste and the operating 

unit is a CISWI unit. While not all CISWI units will include all 

of the following components, a CISWI unit includes, but is not 

limited to, the solid waste feed system, grate system, flue gas 

system, waste heat recovery equipment, if any, and bottom ash 

system. The CISWI unit does not include air pollution control 

equipment or the stack. The CISWI unit boundary starts at the 

solid waste hopper (if applicable) and extends through two 

areas: the combustion unit flue gas system, which ends 

immediately after the last combustion chamber or after the waste 

heat recovery equipment, if any; and the combustion unit bottom 

ash system, which ends at the truck loading station or similar 
Page 490 of 526 

equipment that transfers the ash to final disposal. The CISWI 

unit includes all ash handling systems connected to the bottom 

ash handling system. 

* * * * * 

Continuous monitoring system (CMS) means the total 

equipment, required under the emission monitoring sections in 

applicable subparts, used to sample and condition (if 

applicable), to analyze, and to provide a permanent record of 

emissions or process parameters. A particulate matter continuous 

parameter monitoring system (PM CPMS) is a type of CMS. 

* * * * * 

Cyclonic burn barrel means a combustion device for waste 

materials that is attached to a 55 gallon, openhead drum. The 

device consists of a lid, which fits onto and encloses the drum, 

and a blower that forces combustion air into the drum in a 

cyclonic manner to enhance the mixing of waste material and air. 

A cyclonic burn barrel is not an incinerator, waste-burning 

kiln, an energy recovery unit or a small, remote incinerator 

under this subpart. 

Deviation means any instance in which an affected source 

subject to this subpart, or an owner or operator of such a 

source: 

(1) Fails to meet any requirement or obligation established 

by this subpart, including but not limited to any emission 
Page 491 of 526 

limitation, operating limit, or operator qualification and 

accessibility requirements. 

(2) Fails to meet any term or condition that is adopted to 

implement an applicable requirement in this subpart and that is 

included in the operating permit for any affected source 

required to obtain such a permit. 

* * * * * 

Dry scrubber means an add-on air pollution control system 

that injects dry alkaline sorbent (dry injection) or sprays an 

alkaline sorbent (spray dryer) to react with and neutralize acid 

gas in the exhaust stream forming a dry powder material. Sorbent 

injection systems in fluidized bed boilers and process heaters 

are included in this definition. A dry scrubber is a dry control 

system. 

* * * * * 

Energy recovery unit means a combustion unit combusting 

solid waste (as that term is defined by the Administrator in 40 

CFR part 241) for energy recovery. Energy recovery units include 

units that would be considered boilers and process heaters if 

they did not combust solid waste. 

Energy recovery unit designed to burn biomass (Biomass)

means an energy recovery unit that burns solid waste, biomass, 

and non-coal solid materials but less than 10 percent coal, on a 
Page 492 of 526 

heat input basis on an annual average, either alone or in 

combination with liquid waste, liquid fuel or gaseous fuels. 

Energy recovery unit designed to burn coal (Coal) means an 

energy recovery unit that burns solid waste and at least 10 

percent coal on a heat input basis on an annual average, either 

alone or in combination with liquid waste, liquid fuel or 

gaseous fuels. 

Energy recovery unit designed to burn liquid waste 

materials and gas (Liquid/gas) means an energy recovery unit 

that burns a liquid waste with liquid or gaseous fuels not 

combined with any solid fuel or waste materials. 

Energy recovery unit designed to burn solid materials 

(Solids) includes energy recovery units designed to burn coal 

and energy recovery units designed to burn biomass. 

* * * * * 

Foundry sand thermal reclamation unit means a type of part 

reclamation unit that removes coatings that are on foundry sand. 

A foundry sand thermal reclamation unit is not an incinerator, 

waste-burning kiln, an energy recovery unit or a small, remote 

incinerator under this subpart. 

* * * * * 

Incinerator means any furnace used in the process of 

combusting solid waste (as that term is defined by the 

Administrator in 40 CFR part 241) for the purpose of reducing 
Page 493 of 526 

the volume of the waste by removing combustible matter. 

Incinerator designs include single chamber and two-chamber. 

Kiln means an oven or furnace, including any associated 

preheater or precalciner devices, used for processing a 

substance by burning, firing or drying. Kilns include cement 

kilns that produce clinker by heating limestone and other 

materials for subsequent production of Portland Cement. 

Laboratory analysis unit means units that burn samples of 

materials for the purpose of chemical or physical analysis. A 

laboratory analysis unit is not an incinerator, waste-burning 

kiln, an energy recovery unit or a small, remote incinerator 

under this subpart. 

* * * * * 

Minimum voltage or amperage means 90 percent of the lowest 

test-run average voltage or amperage to the electrostatic 

precipitator measured during the most recent particulate matter 

or mercury performance test demonstrating compliance with the 

applicable emission limits. 

Modification or modified CISWI unit means a CISWI unit that 

has been changed later than [THE DATE SIX MONTHS AFTER 

PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], and that 

meets one of two criteria: 

(1) The cumulative cost of the changes over the life of the 

unit exceeds 50 percent of the original cost of building and 
Page 494 of 526 

installing the CISWI unit (not including the cost of land) 

updated to current costs (current dollars). To determine what 

systems are within the boundary of the CISWI unit used to 

calculate these costs, see the definition of CISWI unit. 

(2) Any physical change in the CISWI unit or change in the 

method of operating it that increases the amount of any air 

pollutant emitted for which section 129 or section 111 of the 

Clean Air Act has established standards. 

Opacity means the degree to which emissions reduce the 

transmission of light and obscure the view of an object in the 

background. 

Operating day means a 24-hour period between 12:00 midnight 

and the following midnight during which any amount of solid 

waste is combusted at any time in the CISWI unit. 

Oxygen analyzer system means all equipment required to 

determine the oxygen content of a gas stream and used to monitor 

oxygen in the boiler or process heater flue gas, boiler/process 

heater, firebox, or other appropriate location. This definition 

includes oxygen trim systems and certified oxygen CEMS. The 

source owner or operator is responsible to install, calibrate, 

maintain, and operate the oxygen analyzer system in accordance 

with the manufacturer’s recommendations. 

Oxygen trim system means a system of monitors that is used 

to maintain excess air at the desired level in a combustion 
Page 495 of 526 

device. A typical system consists of a flue gas oxygen and/or 

carbon monoxide monitor that automatically provides a feedback 

signal to the combustion air controller. 

* * * * * 

Performance evaluation means the conduct of relative 

accuracy testing, calibration error testing, and other 

measurements used in validating the continuous monitoring system 

data. 

Performance test means the collection of data resulting 

from the execution of a test method (usually three emission test 

runs) used to demonstrate compliance with a relevant emission 

standard as specified in the performance test section of the 

relevant standard. 

Process change means a significant permit revision, but 

only with respect to those pollutant-specific emission units for 

which the proposed permit revision is applicable, including but 

not limited to a change in the air pollution control devices 

used to comply with the emission limits for the affected CISWI 

unit (e.g., change in the sorbent used for activated carbon 

injection). 

* * * * * 

Raw mill means a ball or tube mill, vertical roller mill or 

other size reduction equipment, that is not part of an in-line 

kiln/raw mill, used to grind feed to the appropriate size. 
Page 496 of 526 

Moisture may be added or removed from the feed during the 

grinding operation. If the raw mill is used to remove moisture 

from feed materials, it is also, by definition, a raw material 

dryer. The raw mill also includes the air separator associated 

with the raw mill. 

* * * * * 

 Responsible official means one of the following: 

(1) For a corporation: a president, secretary, treasurer, or 

vice-president of the corporation in charge of a principal 

business function, or any other person who performs similar 

policy or decision-making functions for the corporation, or a 

duly authorized representative of such person if the 

representative is responsible for the overall operation of one 

or more manufacturing, production, or operating facilities 

applying for or subject to a permit and either: 

(i) The facilities employ more than 250 persons or have gross 

annual sales or expenditures exceeding $25 million (in second 

quarter 1980 dollars); or 

(ii) The delegation of authority to such representatives is 

approved in advance by the permitting authority; 

(2) For a partnership or sole proprietorship: a general partner 

or the proprietor, respectively; 

(3) For a municipality, State, Federal, or other public agency: 

Either a principal executive officer or ranking elected 
Page 497 of 526 

official. For the purposes of this part, a principal executive 

officer of a Federal agency includes the chief executive officer 

having responsibility for the overall operations of a principal 

geographic unit of the agency (e.g., a Regional Administrator of 

EPA); or 

(4) For affected facilities: 

(i) The designated representative in so far as actions, 

standards, requirements, or prohibitions under title IV of the 

Clean Air Act or the regulations promulgated thereunder are 

concerned; or 

(ii) The designated representative for any other purposes under 

part 60. 

* * * * * 

Small, remote incinerator means an incinerator that 

combusts solid waste (as that term is defined by the 

Administrator in 40 CFR part 241) and combusts 3 tons per day or 

less solid waste and is more than 25 miles driving distance to 

the nearest municipal solid waste landfill. 

Soil treatment unit means a unit that thermally treats 

petroleum–contaminated soils for the sole purpose of site 

remediation. A soil treatment unit may be direct-fired or 

indirect fired. A soil treatment unit is not an incinerator, 

waste-burning kiln, an energy recovery unit or a small, remote 

incinerator under this subpart. 
Page 498 of 526 

Solid waste means the term solid waste as defined in 40 CFR 

241.2. 

Solid waste incineration unit means a distinct operating 

unit of any facility which combusts any solid waste (as that 

term is defined by the Administrator in 40 CFR part 241) 

material from commercial or industrial establishments or the 

general public (including single and multiple residences, hotels 

and motels). Such term does not include incinerators or other 

units required to have a permit under section 3005 of the Solid 

Waste Disposal Act. The term “solid waste incineration unit” 

does not include: (1) Materials recovery facilities (including 

primary or secondary smelters) which combust waste for the 

primary purpose of recovering metals; (2) Qualifying small power 

production facilities, as defined in section 3(17)(C) of the 

Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying 

cogeneration facilities, as defined in section 3(18)(B) of the 

Federal Power Act (16 U.S.C. 796(18)(B)), which burn homogeneous 

waste (such as units which burn tires or used oil, but not 

including refuse-derived fuel) for the production of electric 

energy or in the case of qualifying cogeneration facilities 

which burn homogeneous waste for the production of electric 

energy and steam or forms of useful energy (such as heat) which 

are used for industrial, commercial, heating or cooling 

purposes; or (3) Air curtain incinerators provided that such 
Page 499 of 526 

incinerators only burn wood wastes, yard wastes and clean lumber 

and that such air curtain incinerators comply with opacity 

limitations to be established by the Administrator by rule. 

Space heater means a usually portable appliance for heating 

a relatively small area. A space heater is not an incinerator, 

waste-burning kiln, an energy recovery unit or a small, remote 

incinerator under this subpart. 

* * * * * 

Waste-burning kiln means a kiln that is heated, in whole or 

in part, by combusting solid waste (as that term is defined by 

the Administrator pursuant to subtitle D of RCRA). Secondary 

materials used in Portland cement kilns shall not be deemed to 

be combusted unless they are introduced into the combustion zone 

in the hot end of the kiln or into the combustion zone of the 

precalciner or riser burner (if installed). 

Wet scrubber means an add-on air pollution control device 

that uses an aqueous or alkaline scrubbing liquor to collect 

particulate matter (including nonvaporous metals and condensed 

organics) and/or to absorb and neutralize acid gases. 

* * * * * 

80. Table 1 to Subpart DDDD of Part 60 is revised to read 

as follows: 
Page 500 of 526 

Table 1 to Subpart DDDD of Part 60—Model Rule—Increments of 

Progress and Compliance Schedules

Comply with these increments of 

progress By these datesa

Increment 1—Submit final control 

plan 

(Dates to be specified in state 

plan) 

Increment 2—Final compliance (Dates to be specified in state 

plan)b

a Site-specific schedules can be used at the discretion of the 

state. 

b The date can be no later than 3 years after the effective date 

of state plan approval or December 1, 2005 for CISWI units that 

commenced construction on or before November 30, 1999. The date 

can be no later than 3 years after the effective date of 

approval of a revised state plan or [THE DATE 5 YEARS AFTER THE 

DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] 

for CISWI units that commenced construction on or before June 4, 

2010. For small remote incinerators, the date can be no later 

than 3 years after the effective date of approval of a revised 

state plan or March 21, 2016 for small remote incinerator CISWI 

units that commenced construction on or before June 4, 2010. 

81. Table 2 to subpart DDDD is amended by: 

a. Revising the title to read “Table 2 to Subpart DDDD of 

Part 60—Model Rule—Emission Limitations That Apply To 

Incinerators Before [Date to be specified in state plan].” 

b. Revising the entries for “Hydrogen chloride,” “Mercury,” 

“Opacity” and “Oxides of nitrogen.” 

c. Adding footnotes b and c. 

Table 2 to Subpart DDDD of Part 60—Model Rule—Emission 

Limitations That Apply To Incinerators Before [Date to be 

specified in state plan]b 

For the 

air 

pollutant 

You must meet 

this emission 

limitationa

Using this averaging 

time 

And determining 

compliance using 

this method 
Page 501 of 526 

For the 

air 

pollutant 

You must meet 

this emission 

limitationa

Using this averaging 

time 

And determining 

compliance using 

this method 

* * * * * * * 

Hydrogen 

chloride 

62 parts per 

million by 

dry volume 

3-run average (For 

Method 26, collect a 

minimum volume of 120 

liters per run. For 

Method 26A, collect a 

minimum volume of 1 

dry standard cubic 

meter per run) 

Performance test 

(Method 26 or 26A 

at 40 CFR part 60, 

appendix A-8) 

* * * * * * * 

Mercury 0.47 

milligrams 

per dry 

standard 

cubic meter 

3-run average (1 hour 

minimum sample time 

per run) 

Performance test 

(Method 29 or 30B 

at 40 CFR part 60, 

appendix A-8) or 

ASTM D6784-02 

(Reapproved 

2008)c. 

Opacity 10 percent Three 1-hour blocks 

consisting of ten 6-

minute average 

opacity values 

Performance test 

(Method 9 at 40 

CFR part 60, 

appendix A-4) 

* * * * * * * 

Oxides of 

nitrogen 

388 parts per 

million by 

dry volume 

3-run average (1 hour 

minimum sample time 

per run) 

Performance test 

(Methods 7 or 7E 

at 40 CFR part 60, 

appendix A-4). 

* * * * * * * 

b Applies only to incinerators subject to the CISWI standards 

through a state plan or the Federal plan prior to June 4, 2010. 

The date specified in the state plan can be no later than 3 

years after the effective date of approval of a revised state 

plan or [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN 

THE FEDERAL REGISTER]. 

c Incorporated by reference, see §60.17. 
Page 502 of 526 

82. Table 4 of subpart DDDD is amended by revising the 

column headings to read as follows: 

Table 4 to Subpart DDDD of Part 60—Model Rule—Toxic Equivalency 

Factors 

Dioxin/furan isomer Toxic equivalency factor

* * * * * * * *

83. Table 5 of subpart DDDD is amended by: 

a. Revising the entry for “Annual Report”. 

b. Revising the entry for “Emission limitation or operating 

limit deviation report”. 

Table 5 to Subpart DDDD of Part 60—Summary of Reporting 

Requirementsa 

Report Due date Contents Reference

* * * * * * *

Annual 

report

No later than 12 

months following the 

submission of the 

initial test report. 

Subsequent reports 

are to be submitted 

no more than 12 

months following the 

previous report

• Name and address 

• Statement and signature 

by responsible official 

• Date of report 

• Values for the operating 

limits 

• Highest recorded 3-hour 

average and the lowest 3-

hour average, as 

applicable, for each 

operating parameter 

recorded for the calendar 

year being reported 

• If a performance test 

was conducted during the 

reporting period, the 

results of the test 

• If a performance test 

was not conducted during 

the reporting period, a 

statement that the 

requirements of 

§60.2720(a) were met 

• Documentation of periods 

§§60.2765 

and 

60.2770
Page 503 of 526 

Report Due date Contents Reference

when all qualified CISWI 

unit operators were 

unavailable for more than 

8 hours but less than 2 

weeks

• If you are conducting 

performance tests once 

every 3 years consistent 

with §60.2720(a), the date 

of the last 2 performance 

tests, a comparison of the 

emission level you 

achieved in the last 2 

performance tests to the 

75 percent emission limit 

threshold required in 

§60.2720(a) and a 

statement as to whether 

there have been any 

operational changes since 

the last performance test 

that could increase 

emissions.

* * * * * * *

Emission 

limitation 

or operating 

limit 

deviation 

report

By August 1 of that 

year for data 

collected during the 

first half of the 

calendar year. By 

February 1 of the 

following year for 

data collected 

during the second 

half of the calendar

year

• Dates and times of 

deviation 

• Averaged and recorded 

data for those dates 

• Duration and causes of 

each deviation and the 

corrective actions taken 

• Copy of operating limit 

monitoring data and any 

test reports 

• Dates, times and causes 

for monitor downtime 

incidents

§60.2775 

and 

60.2780

* * * * * * *

a This table is only a summary, see the referenced sections of 

the rule for the complete requirements. 

84. Table 6 to Subpart DDDD is added as follows: 
Page 504 of 526 

Table 6 to Subpart DDDD of Part 60—Model Rule—Emission 

Limitations That Apply To Incinerators On and After [Date to be 

specified in state plan]a

For the air 

pollutant

You must meet 

this emission

limitationb

Using this averaging 

time

And determining 

compliance using 

this method

Cadmium 0.0026 

milligrams per 

dry standard 

cubic meter

3-run average (collect 

a minimum volume of 2 

dry standard cubic 

meters)

Performance test 

(Method 29 at 40 

CFR part 60, 

appendix A-8). 

Use ICPMS for 

the analytical 

finish.

Carbon monoxide 17 parts per 

million dry 

volume

3-run average (1 hour 

minimum sample time per 

run)

Performance test 

(Method 10 at 40 

CFR part 60, 

appendix A-4). 

Dioxins/furans 

(total mass 

basis)

4.6 nanograms 

per dry 

standard cubic 

meter

3-run average (collect 

a minimum volume of 2 

dry standard cubic 

meters)

Performance test 

(Method 23 at 40 

CFR part 60, 

appendix A-7).

Dioxins/furans 

(toxic 

equivalency 

basis)

0.13 nanograms 

per dry 

standard cubic 

meter

3-run average (collect 

a minimum volume of 2 

dry standard cubic 

meters)

Performance test 

(Method 23 at 40 

CFR part 60, 

appendix A-7).

Hydrogen 

chloride

29 parts per 

million dry 

volume

3-run average (For 

Method 26, collect a 

minimum volume of 60 

liters per run. For 

Method 26A, collect a 

minimum volume of 1 

dry standard cubic 

meter per run) 

Performance test 

(Method 26 or 

26A at 40 CFR 

part 60, 

appendix A-8).

Lead 0.015 

milligrams per 

dry standard 

cubic meterc

3-run average (collect 

a minimum volume of 2 

dry standard cubic 

meters)

Performance test 

(Method 29 at 40 

CFR part 60, 

appendix A-8). 

Use ICPMS for 

the analytical 

finish.

Mercury 0.0054 

milligrams per 

dry standard 

cubic meter

3-run average (For 

Method 29 an ASTM 

D6784-02 (Reapproved 

2008)d, collect a 

minimum volume of 2 dry 

Performance test 

(Method 29 or 

30B at 40 CFR 

part 60, 

appendix A-8) or 
Page 505 of 526 

For the air 

pollutant

You must meet 

this emission

limitationb

Using this averaging 

time

And determining 

compliance using 

this method

standard cubic meters 

per run. For Method 

30B, collect a minimum 

sample as specified in 

Method 30B at 40 CFR 

part 60, appendix A)

ASTM D6784-02 

(Reapproved 

2008)d.

Oxides of 

nitrogen

53 parts per 

million dry 

volume

3-run average (for 

Method 7E, 1 hour 

minimum sample time per 

run)

Performance test 

(Method 7 or 7E 

at 40 CFR part 

60, appendix A4). 

Particulate 

matter

filterable

34 milligrams 

per dry 

standard cubic 

meter

3-run average (collect 

a minimum volume of 1 

dry standard cubic 

meter)

Performance test 

(Method 5 or 29 

at 40 CFR part 

60, appendix A-3

or appendix A8).

Sulfur dioxide 11 parts per 

million dry 

volume

3-run average (1 hour 

minimum sample time per 

run)

Performance test 

(Method 6 or 6c 

at 40 CFR part 

60, appendix A4. 

Fugitive ash Visible 

emissions for 

no more than 

5% of the 

hourly 

observation 

period 

Three 1-hour 

observation periods

Visible emission 

test (Method 22 

at 40 CFR part 

60, appendix A7).

a The date specified in the state plan can be no later than 3 

years after the effective date of approval of a revised state 

plan or [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN 

THE FEDERAL REGISTER]. 

b All emission limitations are measured at 7 percent oxygen, dry 

basis at standard conditions. For dioxins/furans, you must meet 

either the total mass basis limit or the toxic equivalency basis 

limit. 

c If you are conducting stack tests to demonstrate compliance 

and your performance tests for this pollutant for at least 2 

consecutive years show that your emissions are at or below this 

limit, you can skip testing according to §60.2720 if all of the 

other provision of §60.2720 are met. For all other pollutants 
Page 506 of 526 

that do not contain a footnote “c”, your performance tests for 

this pollutant for at least 2 consecutive years must show that 

your emissions are at or 75 percent of this limit in order to 

qualify for skip testing. 

d Incorporated by reference, see §60.17. 

85. Table 7 of Subpart DDDD is added as follows: 

Table 7 to Subpart DDDD of Part 60—Model Rule—Emission 

Limitations That Apply To Energy Recovery Units After [Date to 

be specified in state plan]a

For the air 

pollutant 

You must meet this 

emission 

limitationb Using this 

averaging 

time 

And 

determining 

compliance 

using this 

Liquid/Gas Solids method 

Cadmium 0.023 

milligrams 

per dry 

standard 

cubic meter

Biomass - 

0.0014 

milligrams 

per dry 

standard 

cubic meterc

3-run 

average 

(collect a 

minimum 

volume of 2 

dry standard 

cubic 

meters) 

Performance 

test (Method 

29 at 40 CFR 

part 60, 

appendix A8). Use ICPMS 

for the 

analytical 

finish. 

Coal - 

0.058 

milligrams 

per dry 

standard 

cubic meter

Carbon 

monoxide 

35 parts 

per million 

dry volume 

Biomass – 

260 parts 

per million 

dry volume 

3-run 

average (1 

hour minimum 

sample time 

per run) 

Performance 

test (Method 

10 at 40 CFR 

part 60, 

appendix A4). Coal – 95 

parts per 

million dry 

volume 

Dioxins/furans 

(total mass 

basis) 

2.9 

nanograms 

per dry 

standard 

cubic meter

Biomass -

0.52 

nanograms 

per dry 

standard 

3-run 

average 

(collect a 

minimum 

volume of 1 

Performance 

test (Method 

23 at 40 CFR 

part 60, 

appendix A-
Page 507 of 526 

For the air 

pollutant 

You must meet this 

emission 

limitationb Using this 

averaging 

time 

And 

determining 

compliance 

using this 

Liquid/Gas Solids method 

cubic meterc dry standard 

cubic meter) 

7). 

Coal - 0.51 

nanograms 

per dry 

standard 

cubic meterc

Dioxins/furans 

(toxic 

equivalency 

basis) 

0.32 

nanograms 

per dry 

standard 

cubic meter

Biomass - 

0.12 

nanograms 

per dry 

standard 

cubic meter

3-run 

average 

(collect a 

minimum 

volume of 4 

dry standard 

cubic 

meters) 

Performance 

test (Method 

23 at 40 CFR 

part 60, 

appendix A7). 

Coal - 

0.075 

nanograms 

per dry 

standard 

cubic meterc

Hydrogen 

chloride 

14 parts 

per million 

dry volume 

Biomass - 

0.20 parts 

per million 

dry volume 

3-run 

average (for 

Method 26, 

collect a 

minimum of 

120 liters; 

for Method 

26A, collect 

a minimum 

volume of 1 

dry standard 

cubic meter) 

Performance 

test (Method 

26 or 26A at 

40 CFR part 

60, appendix 

A-8). 

Coal – 

21 parts 

per million 

dry volume 

Lead 0.096 

milligrams 

per dry 

standard 

Biomass - 

0.014 

milligrams 

per dry 

3-run 

average 

(collect a 

minimum 

Performance 

test (Method 

29 at 40 CFR 

part 60, 
Page 508 of 526 

For the air 

pollutant 

You must meet this 

emission 

limitationb Using this 

averaging 

time 

And 

determining 

compliance 

using this 

Liquid/Gas Solids method 

cubic meter standard 

cubic meterc

volume of 2 

dry standard 

cubic 

meters) 

appendix A8). Use ICPMS 

for the 

analytical 

finish. 

Coal - 

0.013 

milligrams 

per dry 

standard 

cubic meterc

Mercury 0.031 

milligrams 

per dry 

standard 

cubic meter

Biomass - 

0.0022 

milligrams 

per dry 

standard 

cubic meter

3-run 

average (For 

Method 29 

and ASTM 

D6784-02 

(Reapproved 

2008)d, 

collect a 

minimum 

volume of 2 

dry standard 

cubic meters 

per run. For 

Method 30B, 

collect a 

minimum 

sample as 

specified in 

Method 30B 

at 40 CFR 

part 60, 

appendix A) 

Performance 

test (Method 

29 or 30B at 

40 CFR part 

60, appendix 

A-8) or ASTM 

D6784-02 

(Reapproved 

2008)d. 

Coal - 

0.0028 

milligrams 

per dry 

standard 

cubic meter

Oxides of 

nitrogen 

76 parts 

per million 

dry volume 

Biomass – 

290 parts 

per million 

dry volume 

3-run 

average (for 

Method 7E, 1 

hour minimum 

sample time 

per run) 

Performance 

test (Method 

7 or 7E at 40 

CFR part 60, 

appendix A4). Coal – 340 

parts per 
Page 509 of 526 

For the air 

pollutant 

You must meet this 

emission 

limitationb Using this 

averaging 

time 

And 

determining 

compliance 

using this 

Liquid/Gas Solids method 

million dry 

volume 

Particulate 

matter 

filterable 

110 

milligrams 

per dry 

standard 

cubic meter

Biomass - 

11 

milligrams 

per dry 

standard 

cubic meter 

3-run 

average 

(collect a 

minimum 

volume of 1 

dry standard 

cubic meter) 

Performance 

test (Method 

5 or 29 at 40 

CFR part 60, 

appendix A-3 

or appendix 

A-8) if the 

unit has an 

annual 

average heat 

input rate 

less than or 

equal to 250 

MMBtu/hr; or 

PM CPMS (as 

specified in 

§60.2710(x)) 

if the unit 

has an annual 

average heat 

input rate 

greater than 

250 MMBtu/hr. 

Coal - 60 

milligrams 

per dry 

standard 

cubic meter 

Sulfur dioxide 720 parts 

per million 

Biomass – 

7.3 parts 

3-run 

average (1 

Performance 

test (Method 
Page 510 of 526 

For the air 

pollutant 

You must meet this 

emission 

limitationb Using this 

averaging 

time 

And 

determining 

compliance 

using this 

Liquid/Gas Solids method 

dry volume per million 

dry volume 

hour minimum 

sample time 

per run) 

6 or 6c at 40 

CFR part 60, 

appendix A-4. Coal – 650 

parts per 

million dry 

volume 

Fugitive ash Visible 

emissions 

for no more 

than 5 

percent of 

the hourly 

observation 

period 

Visible 

emissions 

for no more 

than 5 

percent of 

the hourly 

observation 

period 

Three 1-hour 

observation 

periods 

Visible 

emission test 

(Method 22 at 

40 CFR part 

60, appendix 

A-7). 

a The date specified in the state plan can be no later than 3 

years after the effective date of approval of a revised state 

plan or [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN 

THE FEDERAL REGISTER] 

b All emission limitations (except for opacity) are measured at 

7 percent oxygen, dry basis at standard conditions. For 

dioxins/furans, you must meet either the total mass basis limit 

or the toxic equivalency basis limit. 

c If you are conducting stack tests to demonstrate compliance 

and your performance tests for this pollutant for at least 2 

consecutive years show that your emissions are at or below this 

limit, you can skip testing according to §60.2720 if all of the 

other provision of §60.2720 are met. For all other pollutants 

that do not contain a footnote “c”, your performance tests for 

this pollutant for at least 2 consecutive years must show that 

your emissions are at or 75 percent of this limit in order to 

qualify for skip testing. 

d Incorporated by reference, see §60.17. 

 

86. Table 8 of Subpart DDDD is added as follows: 
Page 511 of 526 

Table 8 to Subpart DDDD of Part 60—Model Rule—Emission 

Limitations That Apply to Waste-burning Kilns After [Date to be 

specified in state plan]a

For the air 

pollutant 

You must meet 

this emission

limitationb

Using this 

averaging time

And determining 

compliance using 

this method 

Cadmium 0.0014 

milligrams per 

dry standard 

cubic meterc

3-run average 

(collect a 

minimum volume 

of 2 dry 

standard cubic 

meters) 

Performance test 

(Method 29 at 40 

CFR part 60, 

appendix A-8). 

Carbon monoxide 110 (long 

kilns) / 790 

(preheater / 

precalciner) 

parts per 

million dry 

volume 

3-run average 

(1 hour 

minimum sample 

time per run) 

Performance test 

(Method 10 at 40 

CFR part 60, 

appendix A-4). 

Dioxins/furans 

(total mass 

basis) 

0.51 nanograms 

per dry 

standard cubic 

meterc

3-run average 

(collect a 

minimum volume 

of 1 dry 

standard cubic 

meters) 

Performance test 

(Method 23 at 40 

CFR part 60, 

appendix A-7). 

Dioxins/furans 

(toxic 

equivalency 

basis) 

0.075 nanograms 

per dry 

standard cubic 

meterc

3-run average 

(collect a 

minimum volume 

of 1 dry 

standard cubic 

meter) 

Performance test 

(Method 23 at 40 

CFR part 60, 

appendix A-7). 

Hydrogen 

chloride 

3.0 parts per 

million dry 

volumec

3-run average 

(collect a 

minimum volume 

of 1 dry 

standard cubic 

meter) or 30-

day rolling 

average if HCl 

CEMS is being 

used 

Performance test 

(Method 321 at 40 

CFR part 63, 

appendix A of this 

part) or HCl CEMS 

if a wet scrubber 

is not used. 

Lead 0.014 

milligrams per 

3-run average 

(collect a 

Performance test 

(Method 29 at 40 
Page 512 of 526 

For the air 

pollutant 

You must meet 

this emission

limitationb

Using this 

averaging time

And determining 

compliance using 

this method 

dry standard 

cubic meterc

minimum volume 

of 2 dry 

standard cubic 

meters) 

CFR part 60, 

appendix A-8). 

Mercury 0.011 

milligrams per 

dry standard 

cubic meter 

30-day rolling 

average 

Mercury CEMS or 

sorbent trap 

monitoring system 

(performance 

specification 12A 

or 12B, 

respectively, of 

appendix B of this 

part.) 

Oxides of 

nitrogen 

630 parts per 

million dry 

volume 

3-run average 

(for Method 

7E, 1 hour 

minimum sample 

time per run) 

Performance test 

(Method 7 or 7E at 

40 CFR part 60, 

appendix A-4). 

Particulate 

matter 

filterable 

3.2 milligrams 

per dry 

standard cubic 

meter 

30-day rolling 

average 

PM CPMS(as 

specified in 

§60.2710(x)) 

Sulfur dioxide 600 parts per 

million dry 

volume 

3-run average 

(for Method 6, 

collect a 

minimum of 20 

liters; for 

Method 6C, 1 

hour minimum 

sample time 

per run) 

Performance test 

(Method 6 or 6c at 

40 CFR part 60, 

appendix A-4). 

a The date specified in the state plan can be no later than 3 

years after the effective date of approval of a revised state 

plan or [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN 

THE FEDERAL REGISTER] 

b All emission limitations are measured at 7 percent oxygen, dry 

basis at standard conditions. For dioxins/furans, you must meet 

either the total mass basis limit or the toxic equivalency basis 

limit. 
Page 513 of 526 

c If you are conducting stack tests to demonstrate compliance 

and your performance tests for this pollutant for at least 2 

consecutive years show that your emissions are at or below this 

limit, you can skip testing according to §60.2720 if all of the 

other provision of §60.2720 are met. For all other pollutants 

that do not contain a footnote “c”, your performance tests for 

this pollutant for at least 2 consecutive years must show that 

your emissions are at or 75 percent of this limit in order to 

qualify for skip testing. 

87. Table 9 of Subpart DDDD is added as follows: 

Table 9 to Subpart DDDD of Part 60—Model Rule—Emission 

Limitations That Apply to Small, Remote Incinerators After [Date 

to be specified in state plan]a

For the air 

pollutant 

You must meet 

this emission

limitationb

Using this averaging 

time 

And determining 

compliance 

using this 

method 

Cadmium 0.61 

milligrams 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic 

meter) 

Performance 

test (Method 29 

at 40 CFR part 

60, appendix A8). 

Carbon monoxide 31 parts per 

million dry 

volume 

3-run average (1 

hour minimum sample 

time per run) 

Performance 

test (Method 10 

at 40 CFR part 

60, appendix A4). 

Dioxins/furans 

(total mass 

basis) 

1,200 

nanograms per 

dry standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic 

meter) 

Performance 

test (Method 23 

at 40 CFR part 

60, appendix A7). 

Dioxins/furans 

(toxic 

equivalency 

basis) 

57 nanograms 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic 

meter) 

Performance 

test (Method 23 

at 40 CFR part 

60, appendix A7). 

Hydrogen 

chloride 

220 parts per 

million dry 

volume 

3-run average (For 

Method 26, collect a 

minimum volume of 

120 liters per run. 

Performance 

test (Method 26 

or 26A at 40 

CFR part 60, 
Page 514 of 526 

For the air 

pollutant 

You must meet 

this emission

limitationb

Using this averaging 

time 

And determining 

compliance 

using this 

method 

For Method 26A, 

collect a minimum 

volume of 1 dry 

standard cubic meter 

per run) 

appendix A-8). 

Lead 2.7 

milligrams 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic 

meter) 

Performance 

test (Method 29 

at 40 CFR part 

60, appendix A8). 

Mercury 0.0057 

milligrams 

per dry 

standard 

cubic meter 

3-run average (For 

Method 29 and ASTM 

D6784-02 (Reapproved 

2008)c, collect a 

minimum volume of 2 

dry standard cubic 

meters per run. For 

Method 30B, collect 

a minimum sample as 

specified in Method 

30B at 40 CFR part 

60, appendix A) 

Performance 

test (Method 29 

or 30B at 40 

CFR part 60, 

appendix A-8) 

or ASTM D6784-

02 (Reapproved 

2008)c. 

Oxides of 

nitrogen 

240 parts per 

million dry 

volume 

3-run average (for 

Method 7E, 1 hour 

minimum sample time 

per run) 

Performance 

test (Method 7 

or 7E at 40 CFR 

part 60, 

appendix A-4). 

Particulate 

matter 

filterable 

230 

milligrams 

per dry 

standard 

cubic meter 

3-run average 

(collect a minimum 

volume of 1 dry 

standard cubic 

meter) 

Performance 

test (Method 5 

or 29 at 40 CFR 

part 60, 

appendix A-3 or 

appendix A-8). 

Sulfur dioxide 420 parts per 

million dry 

volume 

3-run average (for 

Method 6, collect a 

minimum of 20 liters 

per run; for Method 

6C, 1 hour minimum 

sample time per run)

Performance 

test (Method 6 

or 6c at 40 CFR 

part 60, 

appendix A-4). 
Page 515 of 526 

For the air 

pollutant 

You must meet 

this emission

limitationb

Using this averaging 

time 

And determining 

compliance 

using this 

method 

Fugitive ash Visible 

emissions for 

no more than 

5 percent of 

the hourly 

observation 

period 

Three 1-hour 

observation periods 

Visible 

emission test 

(Method 22 at 

40 CFR part 60, 

appendix A-7). 

a The date specified in the state plan can be no later than 3 

years after the effective date of approval of a revised state 

plan or [THE DATE 5 YEARS AFTER PUBLICATION OF THE FINAL RULE IN 

THE FEDERAL REGISTER]. 

b All emission limitations (except for opacity) are measured at 

7 percent oxygen, dry basis at standard conditions. For 

dioxins/furans, you must meet either the total mass basis limit 

or the toxic equivalency basis limit. 

c Incorporated by reference, see §60.17. 

PART 241—SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION 

UNITS 

88. The authority citation for part 241 continues to read 

as follows: 

Authority: 42 U.S.C. 6903, 6912, 7429. 

SUBPART A -- General 

89. Section 241.2 is amended by: 

a. Revising the definition of “clean cellulosic biomass”; 

b. Revising the definition of “contaminants”; 

c. Revising the definition of “established tire collection 

programs”; and 
Page 516 of 526 

d. Revising the definition of “resinated wood”. 

§241.2 Definitions. 

* * * * * 

Clean cellulosic biomass means those residuals that are 

akin to traditional cellulosic biomass, including, but not 

limited to: agricultural and forest-derived biomass (e.g., green 

wood, forest thinnings, clean and unadulterated bark, sawdust, 

trim, tree harvesting residuals from logging and sawmill 

materials, hogged fuel, wood pellets, untreated wood pallets); 

urban wood (e.g., tree trimmings, stumps, and related forestderived biomass from urban settings); corn stover and other 

biomass crops used specifically for the production of cellulosic 

biofuels (e.g., energy cane, other fast growing grasses, 

byproducts of ethanol natural fermentation processes); bagasse 

and other crop residues (e.g., peanut shells, vines, orchard 

trees, hulls, seeds, spent grains, cotton byproducts, corn and 

peanut production residues, rice milling and grain elevator 

operation residues); wood collected from forest fire clearance 

activities, trees and clean wood found in disaster debris, clean 

biomass from land clearing operations, and clean construction 

and demolition wood. These fuels are not secondary materials or 

solid wastes unless discarded. Clean biomass is biomass that 

does not contain contaminants at concentrations not normally 

associated with virgin biomass materials. 
Page 517 of 526 

* * * * * 

Contaminants means all pollutants listed in Clean Air Act 

sections 112(b) or 129(a)(4), with the following three 

modifications: 

(1) The definition includes the elements chlorine, 

fluorine, nitrogen, and sulfur in cases where non-hazardous 

secondary materials are burned as a fuel and combustion will 

result in the formation of hydrogen chloride (HCl), hydrogen 

fluoride (HF), nitrogen oxides (NOx), or sulfur dioxide (SO2). 

Chlorine, fluorine, nitrogen, and sulfur are not included in the 

definition in cases where non-hazardous secondary materials are 

used as an ingredient and not as a fuel. 

(2) The definition does not include the following 

pollutants that are either unlikely to be found in non-hazardous 

secondary materials and products made from such materials or are 

adequately measured by other parts of this definition: hydrogen 

chloride (HCl), chlorine gas (Cl2), hydrogen fluoride (HF), 

nitrogen oxides (NOx), sulfur dioxide (SO2), fine mineral 

fibers, particulate matter, coke oven emissions, opacity, 

diazomethane, white phosphorus, and titanium tetrachloride. 

(3) The definition does not include m-cresol, o-cresol, pcresol, m-xylene, o-xylene, and p-xylene as individual 

contaminants distinct from the grouped pollutants total cresols 

and total xylenes. 
Page 518 of 526 

* * * * * 

Established tire collection program means a comprehensive 

collection system or contractual arrangement that ensures scrap 

tires are not discarded and are handled as valuable commodities 

through arrival at the combustion facility. This can include 

tires that were not abandoned and were received from the general 

public at collection program events. 

* * * * * 

 Resinated wood means wood products (containing binders and 

adhesives) produced by primary and secondary wood products 

manufacturing. Resinated wood includes residues from the 

manufacture and use of resinated wood, including materials such 

as board trim, sander dust, panel trim, and off-specification 

resinated wood products that do not meet a manufacturing quality 

or standard. 

* * * * * 

SUBPART B - Identification of Non-Hazardous Secondary Materials 

that are Solid Wastes When Used as Fuels or Ingredients in 

Combustion Units 

90. Amend 241.3 as follows: 

a. Revise paragraph (a) and (b). 

b. Revise the introductory paragraph of paragraph (c), 

and paragraphs (c)(1), (c)(2), (c)(2)(ii), (iii) and 

(iv). 
Page 519 of 526 

c. Revise paragraph (d)(1)(iii). 

§241.3 Standards and Procedures for Identification of NonHazardous Secondary Materials that are Solid Wastes When Used as 

Fuels or Ingredients in Combustion Units.

(a) Except as provided in paragraph (b) of this section or 

in §241.4(a) of this subpart, non-hazardous secondary materials 

that are combusted are solid wastes, unless a petition is 

submitted to, and a determination granted by, the EPA pursuant 

to paragraph (c) of this section. The criteria to be addressed 

in the petition, as well as the process for making the non-waste 

determination, are specified in paragraph (c) of this section. 

 (b) The following non-hazardous secondary materials are not 

solid wastes when combusted: 

 (1) Non-hazardous secondary materials used as a fuel in a 

combustion unit that remain within the control of the generator 

and that meet the legitimacy criteria specified in paragraph 

(d)(1) of this section. 

 (2) The following non-hazardous secondary materials that 

have not been discarded and meet the legitimacy criteria 

specified in paragraph (d)(1) of this section when used in a 

combustion unit (by the generator or outside the control of the 

generator): 

 (i) [Reserved] 
Page 520 of 526 

 (ii) [Reserved] 

 (3) Non-hazardous secondary materials used as an ingredient 

in a combustion unit that meet the legitimacy criteria specified 

in paragraph (d)(2) of this section. 

 (4)Fuel or ingredient products that are used in a 

combustion unit, and are produced from the processing of 

discarded non-hazardous secondary materials and that meet the 

legitimacy criteria specified in paragraph (d)(1) of this 

section, with respect to fuels, and paragraph (d)(2) of this 

section, with respect to ingredients. The legitimacy criteria 

apply after the non-hazardous secondary material is processed to 

produce a fuel or ingredient product. Until the discarded nonhazardous secondary material is processed to produce a non-waste 

fuel or ingredient, the discarded non-hazardous secondary 

material is considered a solid waste and would be subject to all 

appropriate federal, state, and local requirements. 

(c) The Regional Administrator may grant a non-waste 

determination that a non-hazardous secondary material that is 

used as a fuel, which is not managed within the control of the 

generator, is not discarded and is not a solid waste when 

combusted. This responsibility may be retained by the Assistant 

Administrator for the Office of Solid Waste and Emergency 

Response if combustors are located in multiple EPA Regions and 

the petitioner requests that the Assistant Administrator process 
Page 521 of 526 

the non-waste determination petition. If multiple combustion 

units are located in one EPA Region, the application must be 

submitted to the Regional Administrator for that Region. The 

criteria and process for making such non-waste determinations 

includes the following: 

(1) Submittal of an application to the Regional 

Administrator for the EPA Region where the facility or 

facilities are located or the Assistant Administrator for the 

Office of Solid Waste and Emergency Response for a determination 

that the non-hazardous secondary material, even though it has 

been transferred to a third party, has not been discarded and is 

indistinguishable in all relevant aspects from a fuel product. 

The determination will be based on whether the non-hazardous 

secondary material that has been discarded is a legitimate fuel 

as specified in paragraph (d)(1) of this section and on the 

following criteria: 

* * * 

 (2) The Regional Administrator or Assistant Administrator 

for the Office of Solid Waste and Emergency Response will 

evaluate the application pursuant to the following procedures: 

 (i) * * * 

(ii) The Regional Administrator or Assistant Administrator 

for the Office of Solid Waste and Emergency Response will 

evaluate the application and issue a draft notice tentatively 
Page 522 of 526 

granting or denying the application. Notification of this 

tentative decision will be published in a newspaper 

advertisement or radio broadcast in the locality where the 

facility combusting the non-hazardous secondary material is 

located, and be made available on the EPA’s web site. 

(iii) The Regional Administrator or the Assistant 

Administrator for the Office of Solid Waste and Emergency 

Response will accept public comments on the tentative decision 

for 30 days, and may also hold a public hearing upon request or 

at his discretion. The Regional Administrator or the Assistant 

Administrator for the Office of Solid Waste and Emergency 

Response will issue a final decision after receipt of comments 

and after a hearing (if any). If a determination is made that 

the non-hazardous secondary material is a non-waste fuel, it 

will be retroactive and apply on the date the petition was 

submitted. 

 (iv) If a change occurs that affects how a non-hazardous 

secondary material meets the relevant criteria contained in this 

paragraph after a formal non-waste determination has been 

granted, the applicant must re-apply to the Regional 

Administrator or the Assistant Administrator for the Office of 

Solid Waste and Emergency Response for a formal determination 

that the non-hazardous secondary material continues to meet the 

relevant criteria and, thus, is not a solid waste. 
Page 523 of 526 

(d) * * * 

(1) * * * 

(iii) The non-hazardous secondary material must contain 

contaminants or groups of contaminants at levels comparable in 

concentration to or lower than those in traditional fuel(s) 

which the combustion unit is designed to burn. In determining 

which traditional fuel(s) a unit is designed to burn, persons 

may choose a traditional fuel that can be or is burned in the 

particular type of boiler, whether or not the combustion unit is 

permitted to burn that traditional fuel. In comparing 

contaminants between traditional fuel(s) and a non-hazardous 

secondary material, persons can use data for traditional fuel 

contaminant levels compiled from national surveys, as well as 

contaminant level data from the specific traditional fuel being 

replaced. To account for natural variability in contaminant 

levels, persons can use the full range of traditional fuel 

contaminant levels, provided such comparisons also consider 

variability in non-hazardous secondary material contaminant 

levels. Such comparisons are to be based on a direct comparison 

of the contaminant levels in both the non-hazardous secondary 

material and traditional fuel(s) prior to combustion. 

* * * * * 

4. Add §241.4 to read as follows: 
Page 524 of 526 

§241.4 Non-Waste Determinations for Specific Non-Hazardous 

Secondary Materials When Used as a Fuel.

(a) The following non-hazardous secondary materials are not 

solid wastes when used as a fuel in a combustion unit: 

(1) Scrap tires that are not discarded and are managed 

under the oversight of established tire collection programs, 

including tires removed from vehicles and off-specification 

tires. 

(2) Resinated wood. 

(3) Coal refuse that has been recovered from legacy piles 

and processed in the same manner as currently-generated coal 

refuse. 

(4) Dewatered pulp and paper sludges that are not discarded 

and are generated and burned on-site by pulp and paper mills 

that burn a significant portion of such materials where such 

dewatered residuals are managed in a manner that preserves the 

meaningful heating value of the materials. 

(b) Any person may submit a rulemaking petition to the 

Administrator to identify additional non-hazardous secondary 

materials to be listed in paragraph (a) of this section. 

Contents and procedures for the submittal of the petitions 

include the following: 

(1) Each petition must be submitted to the Administrator by 

certified mail and must include: 
Page 525 of 526 

(i) The petitioner's name and address; 

(ii) A statement of the petitioner's interest in the 

proposed action; 

(iii) A description of the proposed action, including 

(where appropriate) suggested regulatory language; and 

(iv) A statement of the need and justification for the 

proposed action, including any supporting tests, studies, or 

other information. Where the non-hazardous secondary material 

does not meet the legitimacy criteria, the applicant must 

explain why such non-hazardous secondary material should be 

considered a non-waste fuel, balancing the legitimacy criteria 

with other relevant factors. 

(2) The Administrator will make a tentative decision to 

grant or deny a petition and will publish notice of such 

tentative decision, either in the form of an advanced notice of 

proposed rulemaking, a proposed rule, or a tentative 

determination to deny the petition, in the Federal Register for 

written public comment. 

(3) Upon the written request of any interested person, the 

Administrator may, at its discretion, hold an informal public 

hearing to consider oral comments on the tentative decision. A 

person requesting a hearing must state the issues to be raised 

and explain why written comments would not suffice to 

communicate the person's views. The Administrator may in any 
Page 526 of 526 

case decide on its own motion to hold an informal public 

hearing. 

(4) After evaluating all public comments the Administrator 

will make a final decision by publishing in the Federal Register 

a regulatory amendment or a denial of the petition. 

(5) The Administrator will grant or deny a petition based 

on the weight of evidence showing the following: 

(i) The non-hazardous secondary material has not been 

discarded in the first instance and is legitimately used as a 

fuel in a combustion unit, or if discarded, has been 

sufficiently processed into a material that is legitimately used 

as a fuel. 

(ii) Where any one of the legitimacy criteria in section 

241.3(d)(1) is not met, that the use of the non-hazardous 

secondary material is integrally tied to the industrial 

production process, that the non-hazardous secondary material is 

functionally the same as the comparable traditional fuel, or 

other relevant factors as appropriate.