52624 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 63, 264 and 266 

[EPA–HQ–OAR–2004–0022; FRL–8215–3] 

RIN 2050–AG29 

NESHAP: National Emission Standards 

for Hazardous Air Pollutants: 

Standards for Hazardous Waste 

Combustors (Reconsideration) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On October 12, 2005, EPA 

promulgated national emission 

standards for hazardous air pollutants 

(NESHAP) for new and existing 

hazardous waste combustors. 

Subsequently, the Administrator 

received four petitions for 

reconsideration of the final rule. In this 

proposed rule, EPA is granting 

reconsideration of and requesting 

comment on several issues raised in the 

petitions of the Cement Kiln Recycling 

Coalition, the Coalition for Responsible 

Waste Incineration, and the Sierra Club. 

In addition, EPA is proposing several 

amendments and corrections to the final 

rule to clarify some compliance and 

monitoring issues raised by several 

entities affected by the final rule. 

DATES: Comments. Written comments 

must be received by October 23, 2006. 

Public Hearing. A public hearing will 

be held on September 21, 2006. For 

further information on the public 

hearing and requests to speak, see the 

ADDRESSES section of this preamble. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2004–0022, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: 202–566–1741. 

• Mail: U.S. Postal Service, send 

comments to: HQ EPA Docket Center 

(6102T), Attention Docket ID No. EPA– 

HQ–OAR–2004–0022, 1200 

Pennsylvania Avenue, NW., 

Washington, DC 20460. Please include a 

total of two copies. We request that you 

also send a separate copy of each 

comment to the contact person listed 

below (see FOR FURTHER INFORMATION

CONTACT). 

• Hand Delivery: In person or by 

courier, deliver comments to: HQ EPA 

Docket Center (6102T), Attention Docket 

ID No. EPA–HQ–OAR–2004–0022, 1301 

Constitution Avenue, NW., Room B– 

108, Washington, DC 20004. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Please include a total of two copies. We 

request that you also send a separate 

copy of each comment to the contact 

person listed below (see FOR FURTHER

INFORMATION CONTACT). 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2004– 

0022. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comments include information 

claimed to be Confidential Business 

Information (CBI) or other information 

the disclosure of which is restricted by 

statute. Do not submit information that 

you consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. Send or deliver information 

identified as CBI to only the following 

address: Ms. LaShan Haynes, RCRA 

Document Control Officer, EPA (Mail 

Code 5305W), Attention Docket ID No. 

EPA–HQ–OAR–2004–0022, 1200 

Pennsylvania Avenue, Washington DC, 

20460. Clearly mark the part or all of the 

information that you claim to be CBI. 

The www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

We also request that interested parties 

who would like information they 

previously submitted to EPA to be 

considered as part of this 

reconsideration action identify the 

relevant information by docket entry 

numbers and page numbers. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

the disclosure of which is restricted by 

statute. Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the HQ EPA Docket Center, Docket ID 

No. EPA–HQ–OAR–2004–0022, EPA 

West Building, Room B–102, 1301 

Constitution Ave., NW., Washington, 

DC 20004. This Docket Facility is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The HQ EPA Docket Center 

telephone number is (202) 566–1742. 

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. A 

reasonable fee may be charged for 

copying docket materials. 

Note: The EPA Docket Center suffered 

damage due to flooding during the last week 

of June 2006. The Docket Center is 

continuing to operate. However, during the 

cleanup, there will be temporary changes to 

Docket Center telephone numbers, addresses, 

and hours of operation for people who wish 

to make hand deliveries or visit the Public 

Reading Room to view documents. Consult 

EPA’s Federal Register notice at 71 FR 38147 

(July 5, 2006) or the EPA Web site at 

http://www.epa.gov/epahome/dockets.htm 

for current information on docket operations, 

locations and telephone numbers. The 

Docket Center’s mailing address for U.S. mail 

and the procedure for submitting comments 

to www.regulations.gov are not affected by 

the flooding and will remain the same. 

Public Hearing. The public hearing 

will run from 9 a.m. to 5 p.m., Eastern 

standard time, and will be held at the 

Two Potomac Yard building, 2733 S. 

Crystal Drive, Arlington, Virginia, 

22202. Persons interested in attending 

the hearing or wishing to present oral 

testimony should notify Mr. Frank 

Behan at least 2 days in advance of the 

public hearing (see FOR FURTHER

INFORMATION CONTACT section of this 

preamble). The public hearing will 

provide interested parties the 

opportunity to present data, views, or 

arguments concerning this notice. If no 

one contacts Mr. Behan in advance of 

the hearing with a request to present 

oral testimony at the hearing, we will 

cancel the hearing. The record for this 

action will remain open for 30 days after 

the date of the hearing to accommodate 

submittal of information related to the 

public hearing. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52625 

FOR FURTHER INFORMATION CONTACT: For 

more information on this rulemaking, 

contact Frank Behan at (703) 308–8476, 

or behan.frank@epa.gov, Office of Solid 

Waste (MC: 5302W), U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460. 

SUPPLEMENTARY INFORMATION: 

Outline. The information presented in 

this preamble is organized as follows: 

I. General Information 

A. Does This Proposed Rule Apply to Me? 

B. How Do I Obtain a Copy of This 

Document and Other Related 

Information? 

C. What Should I Consider as I Prepare My 

Comments for EPA? 

II. Background 

III. Summary of This Action 

IV. Discussion of Issues Subject to 

Reconsideration 

A. Subcategorization of Liquid Fuel Boilers 

by Heating Value 

B. Correcting Total Chlorine (TCl) Data to 

20 ppmv 

C. Use of PS–11 and Procedure 2 as 

Guidance for Extrapolating the Alarm 

Set-Point of a Particulate Matter 

Detection System (PMDS) 

D. Tie-Breaking Procedure for New Source 

Standards 

E. Beyond-the-Floor Analyses to Consider 

Multiple HAP That Are Similarly 

Controlled 

F. Dioxin/Furan Standard for Incinerators 

With Dry Air Pollution Control Devices 

G. Provisions of the Health-Based 

Compliance Alternative 

V. Other Proposed Amendments 

A. Sunset Provision for the Interim 

Standards 

B. Operating Parameter Limits for Sources 

With Fabric Filters 

C. Confirmatory Performance Testing Not 

Required for Sources That Are Not 

Subject to a Numerical Dioxin/Furan 

Emission Standard 

D. Periodic Performance Tests for Phase I 

Sources 

E. Performance Test Waiver for Sources 

Subject to Hazardous Waste Thermal 

Concentration Limits 

F. Averaging Method When Calculating 12- 

Hour Rolling Average Thermal 

Concentration Limits 

G. Calculating Rolling Averages for 

Averaging Periods in Excess of 12 Hours 

H. Calculating Rolling Averages 

I. Timing of the Periodic Review of 

Eligibility for the Health-Based 

Compliance Alternatives for Total 

Chlorine 

J. Expressing Particulate Matter Standards 

Using the International System of Units 

(SI) 

K. Mercury Standards for Cement Kilns 

L. Facilities Operating Under RCRA 

Interim Status 

VI. Revised Time Lines 

VII. Technical Corrections and Other 

Clarification 

A. What Typographical Errors Would We 

Correct? 

B. What Citations Would We Correct? 

C. Corrections to the NIC Provisions for 

New Units 

D. Clarification of the Applicability of Title 

V Permit Requirements to Phase 2 Area 

Sources 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act of 1995 

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 

I. General Information 

A. Does This Proposed Rule Apply to 

Me? 

Categories and entities potentially 

affected by this action include: 

Category NAICS code SIC code Examples of potentially regulated entities 

Any industry that combusts hazardous waste as 

defined in the final rule.

562211 ................... 4953 Incinerator, hazardous waste. 

327310 ................... 3241 Cement manufacturing, clinker production. 

327992 ................... 3295 Ground or treated mineral and earth manufacturing. 

325 ......................... 28 Chemical Manufacturers. 

324 ......................... 29 Petroleum Refiners. 

331 ......................... 33 Primary Aluminum. 

333 ......................... 38 Photographic equipment and supplies. 

488, 561, 562 ........ 49 Sanitary Services, N.E.C. 

421 ......................... 50 Scrap and waste materials. 

422 ......................... 51 Chemical and Allied Products, N.E.C. 

512, 541, 561, 812 73 Business Services, N.E.C. 

512, 514, 541, 711 89 Services, N.E.C. 

924 ......................... 95 Air, Water and Solid Waste Management. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

impacted by this action. This table lists 

examples of the types of entities EPA is 

now aware could potentially be 

regulated by this action. Other types of 

entities not listed could also be affected. 

To determine whether your facility, 

company, business, organization, etc., is 

affected by this action, you should 

examine the applicability criteria in 40 

CFR 63.1200. If you have any questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. How Do I Obtain a Copy of This 

Document and Other Related 

Information? 

In addition to being available in the 

docket, an electronic copy of today’s 

proposed rule will also be available on 

the Worldwide Web (WWW). Following 

the Administrator’s signature, a copy of 

this document will be posted on the 

WWW at http://www.epa.gov/hwcmact. 

This Web site also provides other 

information related to the NESHAP for 

hazardous waste combustors. 

C. What Should I Consider as I Prepare 

My Comments for EPA? 

Submitting CBI. Do not submit this 

information to EPA through 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 


jlentini on PROD1PC65 with PROPOSAL2
52626 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

1These petitions are included in the docket for 

this proposal. See items EPA–HQ–OAR–2004–

0022–0516 thru 0519. EPA also received petitions 

from Ash Grove Cement Company and the CKRC, 

Continental Cement Company, and Giant Cement 

Holding, Inc. requesting that we stay the effective 

date of the particulate matter standard for new 

cement kilns. See items EPA–HQ–OAR–2004–

0022–0521 and 0523. In a notice published on 

March 23, 2006, EPA granted a temporary threemonth administrative stay while the particulate 

matter standard is under reconsideration. See 71 FR 

14655. In addition, five petitions for judicial review 

of the final rule were filed with the U.S. Court of 

Appeals for the District of Columbia Circuit by the 

following entities: Ash Grove Cement Company, 

CKRC, CRWI, the Environmental Technology 

Council, and the Sierra Club. 

2Ash Grove Cement Company also submitted to 

EPA a petition for reconsideration. Ash Grove 

Cement’s petition incorporated by reference the 

petition of the CKRC. 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

Section 112 of the CAA requires that 

we establish NESHAP for the control of 

hazardous air pollutants (HAP) from 

both new and existing major sources. 

Major sources of HAP are those 

stationary sources or groups of 

stationary sources that are located 

within a contiguous area under common 

control that emit or have the potential 

to emit considering controls, in the 

aggregate, 10 tons per year (tpy) or more 

of any one HAP or 25 tpy or more of any 

combination of HAP. The CAA requires 

the NESHAP to reflect the maximum 

degree of reduction in emissions of HAP 

that is achievable. This level of control 

is commonly referred to as MACT (for 

Maximum Achievable Control 

Technology). See CAA section 112(d)(2). 

The so-called MACT floor is the 

minimum control level allowed for 

NESHAP and is defined under section 

112(d)(3) of the CAA. In essence, the 

MACT floor ensures that the standards 

are set at a level that assures that all 

major sources achieve the level of 

control at least as stringent as that 

already achieved by the bettercontrolled and lower-emitting sources 

in each source category or subcategory. 

For new sources, the MACT floor cannot 

be less stringent than the emission 

control that is achieved in practice by 

the best-controlled similar source. The 

MACT standards for existing sources 

can be less stringent than standards for 

new sources, but they cannot be less 

stringent than the average emission 

limitation achieved by the bestperforming 12 percent of existing 

sources in the category or subcategory 

for which the Administrator has 

emissions information (where there are 

30 or more sources in a category or 

subcategory). 

In developing MACT standards, we 

also must consider control options that 

are more stringent than the floor. We 

may establish standards more stringent 

than the floor based on the 

consideration of the cost of achieving 

the emissions reductions, any health 

and environmental impacts, and energy 

requirements. See CAA section 

112(d)(2). We call these standards 

beyond-the-floor standards. 

We proposed NESHAP for hazardous 

waste combustors on April 20, 2004 (69 

FR 21198), and we published the final 

rule on October 12, 2005 (70 FR 59402). 

The preamble for the proposed rule 

described the rationale for the proposed 

rule and solicited public comments. We 

received over 75 public comment letters 

on the proposed hazardous waste 

combustor rule. Comments were 

submitted by industry trade 

associations, owners and operators of 

hazardous waste combustors, 

environmental groups, and State 

regulatory agencies and their 

representatives. We summarized the 

major public comments on the proposed 

rule and our responses to public 

comments in the preamble to the final 

rule and in a separate, supporting 

‘‘response to comments’’ document. See 

70 FR at 59426 and docket items EPA–

HQ–OAR–2004–0022–0437 through 

0445. 

Following promulgation of the 

hazardous waste combustor final rule, 

the Administrator received four 

petitions for reconsideration, pursuant 

to section 307(d)(7)(B) of the CAA, from 

Ash Grove Cement Company, the 

Cement Kiln Recycling Coalition 

(CKRC), the Coalition for Responsible 

Waste Incineration (CRWI), and the 

Sierra Club.1 Under this section of the 

CAA, the Administrator must initiate 

reconsideration proceedings with 

respect to provisions that are of central 

relevance to the rule at issue if the 

petitioner shows that it was 

impracticable to raise an objection to a 

rule within the public comment period 

or that the grounds for the objection 

arose after the public comment period 

but within the period for filing petitions 

for judicial review. 

On March 23, 2006, EPA published a 

proposed rule granting reconsideration 

of one issue—the particulate matter 

(PM) standard for new cement kilns—

raised in the petitions of Ash Grove 

Cement Company and CKRC. See 71 FR 

14665. We intend to take final action on 

this reconsideration issue as 

expeditiously as possible. 

III. Summary of This Action 

In today’s notice, we are granting 

reconsideration of certain issues raised 

by petitioners. We summarize below our 

responses to petitions for 

reconsideration and provide detailed 

discussions in Section IV of this 

preamble of the petitions we are 

granting. We also are today proposing 

other amendments to correct or clarify 

provisions of the final rule. See 

discussion in Section V of the preamble. 

We also are presenting revised pictorial 

time lines (from those provided in the 

final rule) that highlight various 

milestones of the MACT compliance 

process. See discussion in Section VI of 

the preamble. Finally, we are providing 

advance notice of technical corrections 

that we plan to promulgate when we 

take final action on the amendments 

proposed today. See discussion in 

Section VI below. 

We are granting reconsideration of 

several issues (that are of central 

relevance to the rule’s outcome) raised 

by Sierra Club, the Cement Kiln 

Recycling Coalition (CKRC),2 and the 

Coalition for Responsible Waste 

Incineration (CRWI). Accordingly, we 

are requesting comment on specific 

provisions of Subpart EEE of 40 CFR 

part 63: (1) Subcategorization of liquid 

fuel boilers; (2) correcting total chlorine 

emissions data below 20 ppmv; (3) use 

of PS–11 as a reference to develop alarm 

set-point extrapolation procedures for 

particulate matter detection systems 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52627 

3Note that, as discussed in Section II above, we 

previously granted CKRC’s request to reconsider the 

particulate matter standard for new cement kilns 

given that new data indicate the single best 

performing source could not achieve the new 

source standard. Accordingly, we issued a stay of 

the new source standard for particulate matter for 

cement kilns (71 FR 14655 (March 23, 2006)) and 

proposed to revise the new source standard for 

particulate matter for cement kilns and make 

corresponding revisions to the new source 

standards for incinerators and liquid fuel boilers (71 

FR 14665 (March 23, 2006)). 

4See 48 FR at 49166–167 (March 16, 1983). Note 

that we discuss in Section IV.A.2 below that, under 

the policy, we presume wastes with a heating value 

of 5,000 Btu/lb or greater are burned for energy 

recovery in a boiler or industrial furnace and 

acknowledge that sources may be able to document 

that wastes with a heating value below 5,000 Btu/ 

lb are also burned for energy recovery in particular 

situations. 

5Sierra Club has also filed a petition for judicial 

review that challenges the use of CO/HC as a 

surrogate for non-dioxin/furan for Phase II sources. 

Although we believe this surrogate approach is 

appropriate, if our position is not upheld we would 

rethink this surrogate approach for Phase I sources 

as well because the rationale is the same for all 

hazardous waste combustor source categories. 

6See letter from James Pew to Stephen Johnson, 

dated December 12, 2005, Section II, docket item 

EPA–HQ–OAR–2004–0022–0517. 

(PMDS); (4) approach to identify the 

best performing single source when two 

or more sources are tied for the lowest 

aggregate SRE/feedrate score; (5) 

beyond-the-floor analyses to consider 

multiple HAP that are controlled by a 

single control mechanism; (6) use of 

post-proposal data to identify the 

dioxin/furan standard for incinerators 

with dry air pollution control devices or 

waste heat boilers; and (7) three 

provisions of the health-based 

compliance alternative for total 

chlorine. See discussion of these topics 

in Section IV below. 

We are proposing changes to several 

other provisions in light of petitioners’

concerns or upon our own review, and 

also are requesting comment on these 

proposed changes. 

We are not reconsidering the 

remaining issues raised by Sierra Club 

and CKRC3 and have included in the 

docket to this rulemaking letters 

explaining our rationale to deny 

reconsideration. In summary: 

1. We deny Sierra Club’s petition 

regarding our use of normal emissions 

data, in addition to compliance test and 

in-between data, in the regression 

analysis to calculate the baghouse 

universal variability factor (UVF) for 

particulate matter. Among other things, 

including normal data results in 

imputing a lower standard deviation for 

particulate matter emissions variability, 

rather than a higher standard deviation 

as Sierra Club incorrectly surmised. 

2. We deny CKRC’s petition regarding 

its concern that subcategorizing liquid 

fuel boilers using a waste heating value 

criterion of 10,000 Btu/lb to distinguish 

between boilers that are burning waste 

entirely for energy recovery versus 

boilers that are burning waste fuels at 

least in part for treatment is inconsistent 

with the Agency’s policy 4 that wastes 

with a heating value greater than 5,000 

Btu/lb are burned for energy recovery. 

The 5,000 Btu/lb criterion for burning 

for energy recovery is a policy providing 

guidance on when combustors are 

considered to burn hazardous waste as 

fuel that carries specific regulatory 

implications. This criterion is not in any 

way affected by the 10,000 Btu/lb 

criterion for subcategorizing liquid fuel 

burners to establish MACT standards. 

The 10,000 Btu/lb criterion divides 

liquid fuel burners into two categories 

based on the heating value of the 

hazardous waste they burn, and is in no 

way intended to replace the 

longstanding 5,000 Btu/lb criterion for 

energy recovery. 

3. We deny Sierra Club’s petitions to 

reconsider the following provisions 

because the additional reasons we 

provide in the final rule to support the 

provisions, or the information we use to 

support the provision, are corroborative 

of information and rationales already 

presented for public comment at 

proposal and therefore do not justify 

reconsideration. The additional reasons 

embellish the rationale we presented at 

proposal, generally in response to 

comments. 

• Use of particulate matter as a 

surrogate for nonenumerated metals; 

• Use of CO/HC as a surrogate for 

dioxin/furan and as a surrogate for nondioxin/furan organic HAP for Phase II 

sources 

• Use of variability factors in setting 

MACT Floors; 

• Approach to establishing the 

dioxin/furan standard for cement kilns 

and for incinerators equipped with a 

wet particulate matter air pollution 

control device or no air pollution 

control device; 

• Subcategorization of incinerators to 

establish separate dioxin/furan 

standards for incinerators equipped 

with a dry particulate matter air 

pollution control device and those 

without a dry particulate matter air 

pollution control device; 

• Approach to establishing the 

mercury standard for cement kilns using 

waste concentration data; 

• Approach to evaluating a beyondthe-floor standard for total chlorine for 

cement kilns; and 

• Decision not to promulgate beyondthe-floor standards for total chlorine for 

lightweight aggregate kilns and solid 

fuel boilers using dry scrubbing. 

4. We deny Sierra Club’s petition that 

we reconsider the use of CO/HC as 

surrogates for non-dioxin/furan organic 

HAP for Phase I sources in this 

rulemaking. As we explained at 

proposal, we view the carbon monoxide, 

hydrocarbon, and destruction and 

removal efficiency standards as 

unaffected by the Court’s vacature of the 

September 1999 ‘‘challenged 

regulations’’ (see Cement Kiln Recycling 

Coalition v. EPA, 255 F. 3d 855, 872 

(D.C. Cir. 2001)) for Phase I sources, 

since these rules were not challenged. 

See 69 FR at 21221. We therefore did 

not repropose those standards, and did 

not consider comments that they be 

revised as part of this rulemaking.5

IV. Discussion of Issues Subject to 

Reconsideration 

Stakeholders who would like for us to 

reconsider comments they submitted to 

us previously and that are relevant to 

the reconsideration issues presented 

below should identify the relevant 

docket entry numbers and page numbers 

of their comments to facilitate 

expeditious review during the 

reconsideration process. We plan to take 

final action on today’s reconsideration 

as expeditiously as possible. 

A. Subcategorization of Liquid Fuel 

Boilers by Heating Value 

In the final rule, we redefined the 

liquid fuel boiler subcategory into two 

separate boiler subcategories based on 

the heating value of the hazardous waste 

they burn: Those that burn waste with 

a heating value below 10,000 Btu/lb, 

and those that burn hazardous waste 

with a heating value of 10,000 Btu/lb or 

greater. See 70 FR at 59422. Sources 

would shift from one subcategory to the 

other depending on the heating value of 

the hazardous waste burned at the time. 

Id. at 59476. 

Sierra Club petitioned for 

reconsideration stating that EPA 

developed this subcategorization 

approach after the period for public 

comment and, thus, did not provide 

notice and opportunity for public 

comment.6 We are granting 

reconsideration of this provision 

because we determined that 

subcategorization of liquid fuel boilers 

was appropriate in response to 

comments on the proposed rule, after 

the period for public comment as Sierra 

Club states. Furthermore, 

subcategorization significantly impacted 

the development of the emission 

standards for liquid fuel boilers. 

Consequently, we are accepting further 

comment on this approach to 

subcategorization but are not proposing 

to change the approach. We believe the 


jlentini on PROD1PC65 with PROPOSAL2
52628 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

7The cement kiln burn tank data and test report 

data shows the minimum heating values of 9,900 

and 10,000 Btu/lb, respectively, for the hazardous 

waste. The minimum lightweight aggregate kiln 

heating values for hazardous waste was 10,000 Btu/ 

lb, excluding the Norlite source. 

subcategorization approach is warranted 

for the reasons provided in the final rule 

and restate them below. Nonetheless, 

we are open to comment and will 

determine whether a change is 

warranted. 

1. Rationale for Subcategorization 

We explained in the final rule that we 

selected normalizing parameters for 

emission standards that best fit the 

input to the combustion device. See 70 

FR at 59451. We used a thermal 

normalizing parameter (i.e., expressing 

the standards in terms of amount of 

HAP contributed by hazardous waste 

per thermal content of hazardous waste) 

where hazardous waste is being used in 

energy-recovery devices as a fuel. This 

avoided the necessity of subcategorizing 

based on unit size. 

At proposal we used the thermal 

emissions format for the liquid fuel 

boiler standards. See 69 FR at 21283. 

Commenters on the proposed rule 

pointed out, however, that some liquid 

fuel boilers burn lower Btu hazardous 

waste because that is the only waste 

available, and those boilers with waste 

that has a low heating value are, in their 

words, ‘‘penalized,’’ compared to those 

boilers with waste that has a high(er) 

heating value. Also, since these are not 

commercial combustion units, they 

normally lack the opportunity to blend 

wastes of different heating values to 

result in as-fired high heating value 

fuels. If all liquid fuel boiler standards 

were normalized by hazardous waste 

heating value, sources with lower 

heating value waste must either reduce 

the mass concentration of HAP or 

increase the waste fuel heating value (or 

increase the system removal efficiency) 

compared to sources with wastes having 

the same mass concentration of HAP but 

higher heating value. See 70 FR at 

59475. These measures would be 

problematic, however. Increasing the 

waste fuel heating value or decreasing 

the mass concentration of HAP in the 

waste is generally not possible because 

boilers burn the waste generated by 

their facility—they are not commercial 

combustion units. Decreasing the mass 

emission rate of HAP by increasing the 

system removal efficiency would 

require boilers burning lower heating 

value waste to incur costs to control 

HAP mass emission rates to levels lower 

than required for boilers at facilities that 

happen to generate waste with a higher 

heating value. 

Moreover, the thermal normalizing 

parameter is not well suited for a 

hazardous waste that is not burned 

entirely for its fuel value. In cases where 

the lower heating value waste is burned, 

the boiler may be serving in part as a 

treatment device for the lower heating 

value hazardous waste. When this 

occurs, the better normalizing parameter 

is the unit’s gas flow (a different means 

of accounting for sources of different 

size), where the standard is expressed as 

amount of HAP per volume of gas flow 

(the same normalizing parameter used 

for most of the other standards 

promulgated in the final rule.) 

Given these concerns, we established 

two subcategories among the liquid fuel 

boilers: Those burning high and those 

burning low heating value hazardous 

waste. The normalizing parameter for 

sources burning lower energy hazardous 

waste is the same parameter used for the 

other hazardous waste treatment 

devices, gas flow rate, so that the 

standard would be expressed as 

concentration of HAP per volume of gas 

flow (a concentration-based form of the 

standard.) The normalizing parameter 

for sources burning higher energy 

content hazardous waste is the thermal 

parameter used for energy recovery 

devices, such as cement kilns and 

lightweight aggregate kilns. For the 

purposes of calculating MACT floors, 

the best performers are drawn from 

those liquid fuel boilers burning lower 

energy hazardous waste for the lower 

heating value subcategory, and from 

those liquid fuel boilers burning higher 

energy hazardous waste for the higher 

heating value subcategory. (See Section 

23.2 of Volume III of the Technical 

Support Document for more 

information.) 

Moreover, liquid fuel boilers are not 

irrevocably placed in one or the other of 

these subcategories. Rather, the source 

is subject to the standard for one or the 

other of these subcategories based on 

the as-fired heating value of the 

hazardous waste it burns at a given 

time. Thus, when the source is burning 

for energy recovery, then the thermal 

emissions-based standards apply. When 

the source is burning at least in part for 

thermal destruction, then the 

concentration based standard apply. 

This approach is similar to how we have 

addressed the issue of normalization in 

other rules where single sources switch 

back and forth among inputs that are 

sufficiently different to warrant separate 

classification. 

2. Selection of the Heating Value 

Threshold 

We next considered what an 

appropriate as-fired heating value 

would be for each liquid fuel boiler 

subcategory and adopted a value of 

10,000 Btu/lb as the threshold for 

subcategorization. This is approximately 

the heating value of commercial liquid 

fossil fuels. See 63 FR at 33782, 33788 

(June 19, 1998). It is also typical of 

current hazardous waste burned for 

energy recovery. Id. Moreover, EPA has 

used this value in its comparable fuel 

specification as a means of 

differentiating fuels from waste. See id. 

and Table 1 to 40 CFR 261.38, showing 

that EPA normalizes all constituent 

concentrations to a 10,000 Btu/lb level 

in its specification for differentiating 

fuels from wastes. 

We next examined the liquid waste 

fuel being burned at cement kilns and 

lightweight aggregate kilns, that burn 

hazardous waste fuels to drive the 

process chemistry to produce products, 

to cross-check whether 10,000 Btu/lb is 

a reasonable demarcation value for 

subcategorizing liquid fuel boilers for 

the purposes of this MACT. We 

observed that 10,000 Btu/lb in practice 

is the minimum heating value (or close 

to the minimum value) found in burn 

tank and test report data we have for 

cement kilns and lightweight aggregate 

kilns.7 Therefore, we believe the cement 

kiln and light weight aggregate kiln data 

confirm that this is an appropriate 

cutpoint for subcategorizing boilers, 

since cement kilns and lightweight 

aggregate kilns are energy recovery 

devices that blend hazardous wastes 

into a consistent, high heating value fuel 

for energy recovery in their 

manufacturing process. 

We then separated the liquid fuel 

boiler emissions data we had into two 

groups, sources burning hazardous 

waste fuel with less than 10,000 Btu/lb 

and all other liquid fuel boilers, and 

performed separate MACT floor 

analyses. (See Sections 13.4, 13.6, 13.7, 

13.8, and 22 of Volume III of the 

Technical Support Document.) We 

calculated concentration-based MACT 

standards for these sources from their 

respective mercury, semivolatile metals, 

chromium, and total chlorine data. 

The regulatory language 

implementing this subcategorization 

approach is provided in 

§§ 63.1209(l)(1)(ii), 63.1209(n)(2)(v), 

63.1209(o)(1)(ii), and 63.1217. 

B. Correcting Total Chlorine (TCl) Data 

to 20 ppmv 

In the final rule, we corrected all the 

total chlorine measurements in the data 

base that were below 20 ppmv to 

account for potential systemic negative 

biases in the Method 0050 data. See 70 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52629 

8See also USEPA, ‘‘Technical Support Document 

for HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ Section 5.5, September 2005. 

9See letter from James Pew to Stephen Johnson, 

dated December 12, 2005, Section IV, docket item 

EPA–HQ–OAR–2004–0022–0517. 

10Steger, J.L., et al., ‘‘Laboratory Evaluation of 

Method 0050 for Hydrogen Chloride’’, Proc of 13th 

Annual Incineration Conference, Houston, TX, May 

1994. 

FR at 59427–29.8 Sierra Club petitioned 

for reconsideration stating that EPA 

corrected the total chlorine 

measurements in response to comments 

on the proposed rule—after the period 

for public comment—and used the 

corrected data to revise the total 

chlorine emission standards.9

We are granting reconsideration of our 

approach to account for these method 

biases to assess the true performance of 

the best performing sources. 

Reconsideration is appropriate because, 

as Sierra Club states, we determined to 

correct the total chlorine data after the 

period for public comment on the 

proposed rule, and correcting the data 

significantly impacted the development 

of the total chlorine emission standards. 

To account for the bias in the method, 

we corrected all total chlorine emissions 

data that were below 20 ppmv to 20 

ppmv. We accounted for within-test 

condition emissions variability for the 

corrected data by imputing a standard 

deviation that is based on a regression 

analysis of run-to-run standard 

deviation versus emission concentration 

for all data above 20 ppmv. This 

approach of using a regression analysis 

to impute a standard deviation is similar 

to the approach we used to account for 

total variability (i.e., test-to-test and 

within test variability) of PM emissions 

for sources that use fabric filters. 

Under today’s reconsideration notice, 

we are accepting further comment on 

this approach to address method bias 

but are not proposing to change the 

approach. We believe this data 

correction approach is warranted for the 

reasons provided in the final rule and 

restate them below. Nonetheless, we are 

open to comment and will determine 

whether a change is warranted. 

1. Effect of Moisture Vapor 

Commenters on the proposed rule 

implied that stack gas with high levels 

of gas phase water vapor will inherently 

have the potential to be biased low, 

particularly at emissions less than 20 

ppmv. We concluded that there is no 

basis for claiming that water vapor, per 

se, causes a bias in SW–846 Method 

0050 or its equivalent, Method 26A. 

Condensed moisture (i.e., water 

droplets), however, can cause a bias 

because it can dissolve hydrogen 

chloride in the sampling train and 

prevent it from being captured in the 

impingers if the sampling train is not 

properly purged. Water droplets can 

potentially be present due to 

entrainment from the wet scrubber, 

condensation in cooler regions of the 

stack along the stack walls, and 

entrainment from condensed moisture 

dripping down the stack wall across the 

inlet duct opening. 

Although Method 0050 addresses the 

water droplet issue by use of a cyclone 

and 45 minute purge, a study by 

Steger 10 concludes that a 45 minute 

purge is not adequate to evaporate all 

water collected by the cyclone in stacks 

with a total moisture content (vapor and 

condensed moisture) of 7 to 9%. At 

those moisture levels, Steger 

documented the negative bias that 

commenters reference. See 70 FR at 

59427. Steger’s recommendation was to 

increase the heat input to the sample 

train by increasing the train and filter 

temperature from 120 °C (248 °F) to 200 

°C (392 °F). We agree that increasing the 

probe and filter temperature will 

provide a better opportunity to 

evaporate any condensed moisture, but 

another solution to the problem is to 

require that the post-test purge be run 

long enough to evaporate all condensed 

moisture. That is the approach used by 

Method 26A, that EPA promulgated 

after Method 0050, and that sources 

must use to demonstrate compliance 

with the final standards. Method 26A 

uses an extended purge time rather than 

elevating the train temperature to 

address condensed moisture because 

that approach can be implemented by 

the stack tester at the site without using 

nonstandard equipment. 

We attempted to quantify the level of 

condensed moisture in the Steger study 

and to compare it to the levels of 

condensed moisture that may be present 

in hazardous waste combustor stack gas. 

This would provide an indication if the 

bias that Steger quantified with a 45 

minute purge might also be applicable 

to some hazardous waste combustors. 

We concluded that this comparison 

would be problematic, however, 

because: (1) Given the limited 

information available in the Steger 

paper, it is difficult to quantify the level 

of condensed moisture in his gas 

samples; and (2) we cannot estimate the 

levels of condensed moisture in 

hazardous waste combustor stack gas 

because, even though condensed 

moisture may have been present during 

a test, method protocol is to report the 

saturation moisture level only (i.e., the 

amount of water vapor present), and not 

the total moisture content (i.e., both 

condensed and vapor phase moisture). 

We did conclude, however, that, if 

hazardous waste combustor stack gas 

were to contain the levels of condensed 

moisture present in the gas that Steger 

tested, the 45 minute purge required by 

Method 0050 would not be sufficient to 

avoid a negative bias. We also 

concluded that this is potentially a 

practical issue and not merely a 

theoretical concern because, as 

commenters note, hazardous waste 

combustors that use wet scrubbers are 

often saturated with water vapor that 

will condense if the flue gas cools. 

2. Data From Wet Stacks When a 

Cyclone Was Not Used 

The data for total chlorine underlying 

EPA’s proposal came exclusively from 

compliance testing. Commenters on the 

proposed rule stated that Method 0050 

procedures for addressing water 

droplets (adequate or not, as discussed 

above) were not followed in many cases 

because a low bias below 20 ppmv was 

not relevant to demonstrating 

compliance with standards on the order 

of 100 ppmv. We do not know which 

data sets may be problematic because, as 

previously stated, the moisture 

concentration reported was often the 

saturation (vapor phase only) moisture 

level and not the total (vapor and liquid) 

moisture in the flue gas. We also have 

no documentation that a cyclone was 

used—even in situations where the 

moisture content was documented to be 

above the dew point. We therefore 

concluded that all data below 20 ppmv 

from sources controlled with a wet 

scrubber are suspect and should be 

corrected. 

3. Potential Bias Due to Filter Affinity 

for Hydrogen Chloride 

Studies by the American Society of 

Testing and Materials indicate that the 

filter used in the Method 0050 train 

(and the M26/26A trains) may adsorb/ 

absorb hydrogen chloride and cause a 

negative bias at low emission levels. 

(See ASTM D6735–01, section 11.1.3 

and ‘‘note 2’’ of section 14.2.3.) This 

inherent affinity for hydrogen chloride 

can be satisfied by preconditioning the 

sampling train for one hour. None of the 

tests in our database were 

preconditioned in such a manner. 

We are normally not concerned about 

this type of bias because we would 

expect the bias to apply to all sources 

equally (e.g., wet or dry gas) and for all 

subsequent compliance tests. In other 

words, we are ordinarily less concerned 

if a standard is based on biased data, as 

long as the means by which the 

standard was developed and the means 


jlentini on PROD1PC65 with PROPOSAL2
52630 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

11For multi-constituent HAP (e.g., semi-volatile 

metals) the emissions for a run could be comprised 

of fully detected values for some HAP and detection 

limits for other HAP that were nondetect. 

of compliance would experience 

identical bias (since the level of control 

would be reflected accurately). 

However, because we corrected the wet 

gas measurements below 20 ppmv to 

address the potential low bias caused by 

condensed moisture, this correction also 

corrected for any potential bias caused 

by the filter’s inherent affinity for 

hydrogen chloride. This resulted in a 

data set that is only partially corrected 

for this issue—sources with wet stacks 

were corrected for this potential bias 

while sources with dry stacks were not 

corrected. To address this unacceptable 

mix of potentially biased and unbiased 

data (i.e., dry gas data biased due to 

affinity of filter for hydrogen chloride 

and wet gas data corrected for 

condensed moisture and affinity of filter 

for hydrogen chloride), we also 

corrected total chlorine measurements 

from dry gas stacks (i.e., sources that do 

not use wet scrubbers). 

4. Deposition of Alkaline Particulate on 

the Filter 

Commenters on the proposed rule 

were also concerned that hydrogen 

chloride may react with alkaline 

compounds from the scrubber water 

droplets that are collected on the filter 

ahead of the impingers. Commenters 

suggested this potential cause for a low 

bias at total chlorine levels below 20 

ppmv is another reason not to use 

measurements below 20 ppmv to 

establish the standards. Although 

alkaline particulate deposition on the 

method filter causing a negative bias is 

a much greater concern for sources that 

have stack gas containing high levels of 

alkaline particulate (e.g., cement kilns, 

sources equipped with dry scrubbers), 

we agreed with commenters that this 

may be of concern for all sources 

equipped with wet scrubbers. Our 

approach to correct all data below 20 

ppmv addressed this concern. 

5. Decision Unique to Hazardous Waste 

Combustors 

We note that the rationale for 

correcting total chlorine data below 20 

ppmv to account for the biases 

discussed above is unique to the 

hazardous waste combustor MACT rule. 

Some sources apparently did not follow 

Method 0050 procedures to minimize 

the low bias caused by condensed 

moisture for understandable reasons. 

Even if sources had followed Method 

0050 procedures to minimize the bias 

(i.e., cyclone and 45 minute purge) there 

still may have been a substantial bias 

because of insufficient purge time, as 

Steger’s work may indicate. We note 

that the total chlorine stack test method 

used by sources other than hazardous 

waste combustors—Method 26A—

requires that the cyclone and sampling 

train be purged until all condensed 

moisture is evaporated. We believed it 

was necessary to correct our data below 

20 ppmv data because of issues 

associated exclusively with Method 

0050 and how it was used to 

demonstrate compliance with these 

sources. 

6. Determining Variability for Data at 20 

ppmv 

Correcting those total chlorine data 

below 20 ppmv to 20 ppmv brought 

about a situation identical to the one we 

confronted with nondetect data. See 70 

FR at 59464–66. The corrected 

emissions data for the MACT pool of 

best performing source(s) were now 

generally the same values—20 ppmv. 

This had the effect of understating the 

variability associated with these data. 

To address this concern, we took an 

approach similar to the one we used to 

determine variability of PM emissions 

for sources equipped with a fabric filter. 

In that case, we performed a linear 

regression on the data, charting 

variability against emissions, and used 

the variability that resulted from the 

linear regression analysis as the 

variability for the sources’ average 

emissions. In this case, most or all of the 

incinerator and liquid fuel boiler 

sources in the MACT pool had 

(corrected) average emissions of TCl at 

or near 20 ppmv. We therefore 

performed a linear regression on the 

total chlorine data charting average test 

condition results above 20 ppmv against 

the variability associated with that test 

condition. The variability associated 

with 20 ppmv was the variability we 

used for incinerator and liquid fuel 

boiler data sets affected by the 20 ppmv 

correction. 

We also considered using the 

statistical imputation approach we used 

for nondetect values. See 70 FR at 

59464. The statistical imputation 

approach for correcting data below 20 

ppmv without dampening variability 

would involve imputing a value 

between the reported value and 20 

ppmv because the ‘‘true’’ value of the 

biased data would lie in this interval. 

This approach would be problematic, 

however, given that many of the 

reported values were much lower than 

20 ppmv; our statistical imputation 

approach would tend to overestimate 

the run to run variability. Consequently, 

we concluded that a regression analysis 

approach would be more appropriate. A 

regression analysis is particularly 

pertinent in this situation because: (1) 

We consider data above 20 ppmv used 

to develop the regression to be 

unbiased; and (2) all the corrected data 

averages for which we imputed a 

standard deviation from the regression 

curve are at or near 20 ppmv. Thus, any 

potential concern about downward 

extrapolation from the regression was 

minimized. 

We note that, although a regression 

analysis is appropriate to estimate runto-run variability for the corrected total 

chlorine data, we could not use a linear 

regression analysis to address variability 

of nondetect values. To estimate a 

standard deviation from a regression 

analysis, we would need to know the 

test condition average emissions. This 

would not be feasible, however, because 

some or all of the run measurements for 

a test condition are nondetect. In 

addition, we were concerned that a 

regression analysis would not accurately 

estimate the standard deviation at low 

emission levels because we would have 

to extrapolate the regression downward 

to levels where we have few measured 

data (i.e., data other than nondetect). 

Moreover, the statistical imputation 

approach is more suitable for handling 

nondetects because the approach 

calculates the run-to-run variability by 

taking into account the percent 

nondetect for the emissions for each 

run.11 A regression approach would be 

difficult to apply particularly in the case 

of test conditions containing partial 

nondetects or a mix of detect and 

nondetect values. Given these concerns 

with using a regression analysis to 

estimate the standard deviation of test 

conditions with runs that have one or 

more nondetect (or partial nondetect) 

measurements, we concluded that the 

statistical imputation approach best 

assures that the calculated floor levels 

account for run-to-run emissions 

variability. 

C. Use of PS–11 and Procedure 2 as 

Guidance for Extrapolating the Alarm 

Set-Point of a Particulate Matter 

Detection System (PMDS) 

Petitioner CKRC asks that EPA 

reconsider its references to Performance 

Specification 11 (PS–11) and Procedure 

2 in the particulate matter detection 

system (PMDS) provisions of the final 

rule. We are granting reconsideration 

because we developed the procedures 

for extrapolating the alarm set-point for 

PMDS, that included references to PS–

11 and Procedure 2, in response to 

comments on the proposed rule and 

after the period for public comment. See 

70 FR at 59490. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52631 

12See letter from David P. Novello to Stephen L. 

Johnson regarding ‘‘Petition for Reconsideration of 

Certain Provisions of Hazardous Waste Combustor 

MACT Replacement Standards Rule,’’ dated 

December 9, 2005, p. 9, docket item EPA–HQ–

OAR–2004–0022–0520. 

13That is, assurance of compliance with the PM 

emission standard by continuous monitoring of a 

surrogate parameter—PMDS detector response in 

this case—for PM emission concentrations. 

14See also USEPA, ‘‘Technical Support 

Document for HWC MACT Standards, Volume IV: 

Compliance with the HWC MACT Standards,’’

September 2005, Appendix C. 

15See discussion of the limitations of operating 

parameter limits for ESPs and IWSs and bag leak 

detection systems for fabric filters (76 FR at 21346–

47). 

CKRC also states that the reference to 

PS–11 for particulate matter CEMS (40 

CFR part 60, appendix B) and Procedure 

2 (Appendix F, Part 60) for use as 

guidance to implement provisions to 

extrapolate the alarm set-point of a 

PMDS may effectively prevent its 

members from utilizing this option due 

to significant technical difficulties and 

excessive costs.12 See 

§ 63.1206(c)(9)(iii)(B). CKRC further 

states that PS–11 and Procedure 2 

contain a number of problems as they 

would apply to cement kilns. CKRC’s 

petition does not identify any such 

problems or technical difficulties, 

however, and only notes that it has filed 

a petition for review in the U.S. Court 

of Appeals for the D.C. Circuit 

challenging EPA’s final rule adopting 

PS–11 and Procedure 2, which case is 

being held in abeyance. 

Finally, CKRC states that use of a 

regression analysis approach to 

extrapolate the alarm set-point is not 

justified or necessary to establish an 

approximate correlation between the 

particulate matter detector system 

response and particulate matter 

concentrations. CKRC suggests that an 

alternative approach would be based on 

a linear relationship passing through 

zero and the mean of the PM 

comprehensive performance test results. 

When we reviewed the procedures in 

the final rule for establishing the setpoint in light of CKRC’s concerns 

regarding use of a regression analysis to 

extrapolate the set-point and use of PS–

11 and Procedure 2 as guidance, we 

identified several shortcomings of the 

final rule: (1) More than the required 

five test runs would be needed to 

perform a meaningful statistical analysis 

of alternative correlation models to 

identify the most appropriate model; (2) 

a general reference to use PS–11 and 

Procedure 2 as guidance is overly broad 

given that those provisions pertain to 

PM continuous emissions monitors 

(CEMS) and would not be applicable to 

PMDS absent a specific PMDS 

requirement; and (3) the final rule 

contemplated establishing the set-point 

after the comprehensive performance 

test and, thus, did not provide for 

operations under the Documentation of 

Compliance. Consequently, we are 

today proposing to revise the provisions 

for establishing the alarm set-point by 

extrapolation by: (1) Adding procedures 

to establish the alarm set-point for 

operations under the Documentation of 

Compliance; (2) revising procedures to 

extrapolate the alarm set-point for 

operations under the Notification of 

Compliance; and (3) providing specific 

rather than generic references to PS–11 

and Procedure 2 provisions that must be 

followed to extrapolate the alarm setpoint. 

1. Summary of the PMDS Provisions in 

the Final Rule 

The final rule established revised 

procedures for establishing the alarm 

set-point if you elect to use a particulate 

matter detector system (PMDS) in lieu of 

site-specific operating parameter limits 

for compliance assurance 13 for sources 

equipped with electrostatic precipitators 

and ionizing wet scrubbers, and in lieu 

of a bag leak detection system for 

sources equipped with a baghouse. See 

70 FR at 59424 and 59490–91, and 

§ 63.1206(c)(9).14 The rule explicitly 

allows you to maximize controllable 

operating parameters during the 

comprehensive performance test to 

account for emissions variability by, for 

example, detuning the air pollution 

control device (APCD) or spiking ash to 

establish an alarm set-point that should 

be routinely achievable considering 

controllable parameters. If you elect to 

use a PMDS, the rule requires you to 

establish the set-point either as the 

average of the test condition run average 

detector responses during the 

comprehensive performance test or as 

the extrapolation of the detector 

response after approximating the 

correlation between the detector 

response and particulate matter 

emission concentrations. You may 

extrapolate the detector response up to 

a response value that corresponds to 

50% of the particulate matter emission 

standard or 125% of the highest 

particulate matter concentration used to 

develop the correlation, whichever is 

greater. To establish an approximate 

correlation of the detector response to 

particulate matter emission 

concentrations, the rule recommends 

that you use as guidance Performance 

Specification-11 for particulate matter 

CEMS (40 CFR part 60, appendix B), 

except that you need conduct only 5 

runs to establish the initial correlation 

rather than a minimum of 15 runs 

required by PS–11. The final rule also 

recommends that, for quality assurance, 

you should use Procedure 2 of 

Appendix F, Part 60, and the 

manufacturer’s recommended 

procedures for periodic quality 

assurance checks and tests, except that: 

(1) You must conduct annual Relative 

Response Audits as prescribed by 

Procedure 2; and (2) you need only 

conduct Relative Response Audits on a 

3-year interval after passing two 

sequential annual Relative Response 

Audits. 

2. Proposed Procedures To Establish the 

Set-Point for Operations Under the 

Documentation of Compliance 

The final rule was silent on how to 

establish the set-point for operations 

under the Documentation of 

Compliance (i.e., in the interim between 

the compliance date and submission of 

the Notification of Compliance 

subsequent to the comprehensive 

performance test). Under today’s 

proposal, we would add a new 

provision that requires you to obtain a 

minimum of three pairs of reference 

method data and PMDS data, establish 

a zero point correlation value, and 

assume a linear correlation model to 

extrapolate the alarm set point as the 

PMDS response that corresponds to a 

PM concentration that is 50% of the PM 

emission standard or 125% of the 

highest PM concentration used to 

develop the correlation, whichever is 

greater. The extrapolated emission 

concentration could not exceed the PM 

emission standard. 

This is a reasonable approach to 

establish an interim set-point for 

operations prior to conducting the 

comprehensive performance test to 

document compliance with the 

emission standards. Requiring the 

additional testing needed to obtain 

enough test runs to identify the actual 

correlation mode—approximately 12 

test runs—would discourage use of 

PMDS because of the cost of the 

additional testing. This is undesirable 

because a PMDS should provide better 

compliance assurance than the 

alternatives of operating parameter 

limits for electrostatic precipitators 

(ESPs) and ionizing wet scrubbers 

(IWSs) and a bag leak detection system 

for fabric filters, even if the PMDS is 

only approximately correlated with PM 

concentrations.15 In addition, we note 

that the actual correlation model that 

best fits the combustor/PMDS may in 

fact be linear or a concave down 

polynomial, logarithmic, exponential, or 

power correlation where PM 


jlentini on PROD1PC65 with PROPOSAL2
52632 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

16Alternative correlation models are: linear, 

polynomial, logarithmic, exponential, and power 

function. See Section 12.3 of PS–11. 

17This actually means 12 data points which 

could be comprised of 11 test runs and a zero point 

correlation value. 18Note that, if you nonetheless happen to obtain 

a minimum of 12 paired data points (e.g., from 

current or historical testing within 60 months of the 

compliance date) that provide a range of ‘‘as found’’

and compliance test-level PM concentrations, the 

rule would require that you use PS–11 procedures 

to identify the most appropriate correlation model 

rather than to assume a linear model. 

concentrations increase less rapidly 

than the PMDS response (i.e., such that 

assuming a linear correlation would be 

conservative). Alternatively, the actual, 

best-fit correlation model may be 

nonlinear and concave up such that a 

linear correlation assumption would not 

be conservative. We specifically request 

comment on the extent that this is 

problematic and approaches to address 

the issue. 

The rule would require you to 

extrapolate from the average of the test 

condition run averages rather than from 

the highest run of the test condition 

given that the runs were intended to 

replicate controllable operating 

conditions. This would also provide a 

more conservative extrapolation that is 

appropriate given that you would 

assume a linear correlation model, as 

discussed above. 

The rule would allow you to include 

a zero point correlation value that you 

establish under procedures in Section 

8.6 (5) of Performance Specification–11 

for PM CEMS (40 CFR part 60, appendix 

B). Use of a zero point correlation value 

is necessary to establish a linear 

correlation given that only three test 

runs would be required and is 

consistent with PM CEMS correlation 

procedures. 

In addition, the rule would allow you 

to use existing paired PM emissions 

data and PMDS data that you may have. 

For example, if you operate a COMS 

that meets the detection limit 

requirements of paragraph (c)(9)(i)(A) 

and have continuous opacity monitoring 

system (COMS) response data for PM 

test runs, you may use those data pairs 

to establish a linear correlation to 

identify the initial set-point. To help 

ensure that the data are representative of 

the current design and operating 

conditions of the combustor and PMDS, 

the rule would require that: (1) The data 

be no more than 60 months old 

consistent with the data in lieu 

provisions of § 63.1207(c)(2); and (2) the 

design and operation of the combustor 

or PMDS must not have changed in a 

manner that may adversely affect the 

correlation of PM concentrations and 

PMDS response. 

Finally, you would extrapolate the 

alarm set point to the PMDS response 

that corresponds to a PM concentration 

that is 50% of the PM emission standard 

or 125% of the highest PM 

concentration used to develop the 

correlation, whichever is greater. Of 

course, the extrapolated emission 

concentration must not exceed the PM 

emission standard. Allowing this level 

of extrapolation is consistent with PS–

11 procedures where the range of a PM 

CEMS is up to 125% of the highest PM 

concentration used to develop the 

correlation. The range of the CEMS for 

low emitting sources (i.e., defined by 

Section 3.16 of PS–11 generally as 

sources that do not emit PM at 

concentrations that exceed 50% of the 

PM standard during the most recent 

performance test or on a daily average) 

is the greater of 50% of the PM standard 

or 125% of the highest PM 

concentration used to develop the 

correlation. 

3. Revised Procedures To Extrapolate 

the Alarm Set-Point for Operations 

Under the Notification of Compliance 

The final rule allowed you to 

establish the set-point following the 

comprehensive performance test as the 

average of the test run average PMDS 

response or by extrapolation. See 

§ 63.1206(9)(ii and iii). Under the 

extrapolation option, you would use 

PS–11 and Procedure 2 as guidance to 

identify the most appropriate 

correlation model based on five 

correlation tests. 

In retrospect, we now conclude 

(subject to consideration of comment) 

that it would be difficult to use PS–11 

procedures to evaluate correlation 

models with only five correlation tests 

(plus a zero point correlation value) to 

identify the most appropriate model to 

use for extrapolating the set-point. The 

statistical criteria (i.e., confidence 

interval half range percentage, tolerance 

interval half range percentage, and 

correlation coefficient) used to evaluate 

alternative correlation models 16 are 

directly affected by the number of test 

runs. With very few test runs, the 

confidence and tolerance intervals 

would be relatively high and the 

correlation coefficient would be 

relatively low as an artifact of the 

statistical procedures such that it would 

be difficult to draw conclusions from 

the analyses. For example, the rate of 

decrease of the statistical factors used to 

calculate the confidence and tolerance 

intervals slows substantially at 10 

degrees of freedom and greater, that 

corresponds to 12 or more test runs. For 

12 test runs, the value of the t-statistic 

provided in Table 1 of PS–11 for the 

half range of the 95 percent confidence 

interval for the mean PM concentration 

would be 2.228 while for 5 test runs and 

15 test runs the t-statistic would be 

3.182 and 2.160, respectively. See Table 

1 in PS–11. 

Given that, as just shown, a minimum 

of 12 test runs 17 over the range of PM 

concentrations would generally be 

needed to use the PS–11 procedures to 

identify the best correlation model, we 

considered requiring an additional eight 

test runs during the comprehensive 

performance test campaign to provide a 

pool of 12 paired (i.e., PMDS response 

and PM concentration) data point: Three 

test runs and a zero point used for the 

Documentation of Compliance 

extrapolation; three test runs from the 

comprehensive performance test to 

document compliance with the PM 

standard; and an additional five test 

runs over a range of operating 

conditions during the comprehensive 

performance test campaign. We are 

concerned, however, that requiring the 

additional five test runs over the range 

of operating conditions could be a 

disincentive to implement a PMDS in 

lieu of establishing operating parameter 

limits for ESPs and IWSs and using a 

bag leak detector system for fabric 

filters.18 In addition to the cost of the 

five additional test runs, you would 

need to take measures to vary PM 

concentrations during the testing to 

provide useful correlation data, that 

could be problematic (i.e., cost would be 

incurred for modifications to design or 

operations) for some sources. 

We considered whether it would be 

reasonable to continue with the 

approach used for the Documentation of 

Compliance—to assume a linear 

regression model given the burden of 

obtaining enough paired data to identify 

the most appropriate correlation model. 

There would now be seven paired data 

available to define the linear regression: 

the three test runs and zero point from 

the Documentation of Compliance 

combined with the three PM 

comprehensive performance test runs. 

We are concerned, however, that the 

additional comprehensive performance 

test data may provide little 

improvement in defining the linear 

regression because those new data 

would likely be in the same PM 

concentration range as the nonzero 

point test runs used for the 

Documentation of Compliance—

emissions that represent the high end of 

the range of controllable emissions 

variability. 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52633 

19The ‘‘as-found’’ test runs would be conducted 

during the general time frame of the comprehensive 

performance test: before, in between, or after 

comprehensive performance test runs. 

20 If you operate a COMS that meets the detection 

limit requirements of paragraph (c)(9)(i)(A) and 

have a minimum of three data pairs under ‘‘as 

found’’ operations (or operations that result in a 

substantial range of PM concentrations) that were 

obtained within 60 months of the compliance date, 

you must use those data to better define the linear 

regression used to extrapolate the set-point for the 

Documentation of Compliance. You would not be 

required, however, to conduct additional ‘‘as 

found’’ testing during the comprehensive 

performance test campaign. 

21Note that the rule continues to require you to 

conduct annual RRAs as prescribed by Procedure 2, 

except that you need only conduct RRA on a 3-year 

interval after passing two sequential annual RRA. 

A RRA is performed by collecting three PMDS and 

PM concentration pairs for ‘‘as-found’’ source 

operating conditions and PM concentrations. 

22The 13 data pairs would be comprised of: three 

test runs and a zero point used for the 

Documentation of Compliance extrapolation; six 

test runs for the initial Notification of Compliance 

extrapolation comprised of three test runs from the 

comprehensive performance test to document 

compliance with the PM standard and three test 

runs under ‘‘as found’’ operations; and three test 

runs under ‘‘as-found’’ operations for the initial 

RRA. 

Consequently, we have tentatively 

concluded that three additional test 

runs at ‘‘as found’’ (i.e., normal) 

operating conditions and PM 

concentrations at some point during the 

comprehensive performance test 

campaign 19 should be required to 

expand the range and number of data 

pairs to better define the assumed linear 

regression. This would provide a pool of 

10 data pairs: three test runs and a zero 

point used for the Documentation of 

Compliance extrapolation; three test 

runs from the comprehensive 

performance test to document 

compliance with the PM standard; and 

three test runs under ‘‘as found’’

operations.20

We are proposing that you would use 

the linear regression defined by these 10 

paired data to extrapolate the alarm setpoint to a response value that 

corresponds to 50% of the PM emission 

standard or 125% of the highest PM 

concentration used to develop the 

correlation, whichever is greater. It is 

reasonable to extrapolate from the 

highest PM concentration in the 

correlation rather than the average of the 

test condition averages (for the 

comprehensive performance test) as 

would be required under the 

Documentation of Compliance because 

the additional data pairs, and especially 

the ‘‘as-found’’ data pairs, better define 

the linear regression and remove some 

uncertainty in the extrapolation. 

We considered whether removing the 

zero point correlation value may 

improve the accuracy of the regression 

given that you would be assuming a 

linear regression when the relationship 

between PMDS response and PM 

concentrations may actually follow 

another model (e.g., logarithmic). If the 

regression is in fact nonlinear, using 

only those data pairs in the high end of 

the PM concentrations range—in the 

range of ‘‘as-found’’ PM concentrations 

to performance test concentrations—

may better estimate through linear 

extrapolation the PMDS response at 

higher PM concentrations. For 

situations where the correlation may be 

nonlinear and concave up, retaining the 

zero point in the analysis may result in 

a lower slope and thus a 

nonconservative (i.e., too high) 

extrapolated set-point. We also 

considered, however, that if the PM 

concentration range represented by the 

data pairs was not substantial, deleting 

the zero point may introduce substantial 

additional uncertainty in the regression. 

Therefore, we initially conclude that the 

zero point should be retained to define 

the linear correlation. Nonetheless, we 

specifically request comment on this 

issue. 

4. Revising the Initial Notification of 

Compliance Set-Point Established by 

Extrapolation 

The extrapolated alarm set-point 

established in the initial Notification of 

Compliance would be an interim 

extrapolated set-point. We are proposing 

that you must revise the alarm set-point 

after each Relative Response Audit 

(RRA).21

After the initial RRA, you would have 

a pool of a minimum of 13 data pairs 22

that should be enough to use PS–11 

procedures under Sections 12.3 and 

12.4 to identify the most appropriate 

correlation model rather than 

continuing to assume a linear 

correlation. Note that the PMDS would 

not need to meet the PS–11 performance 

specifications. The PMDS is used for 

compliance assurance and is not a PM 

CEMS that would be used for 

compliance monitoring. Nonetheless, 

the statistical criteria for evaluating the 

correlation for a PM CEMS are also 

applicable to evaluating the correlation 

for a PMDS, and the criteria can be 

compared for alternative correlation 

models to the PM CEMS specifications 

in Section 13.2 of PS–11 to identify the 

most appropriate correlation model. 

5. Specific Rather Than Generic 

References to PS–11 and Procedure 2 

The final rule stated that you should 

use PS–11 as guidance to establish a 

correlation and Procedure 2 for quality 

assurance. In retrospect, we believe that 

those references are overly broad and 

could result in a permitting authority 

inappropriately applying provisions 

applicable to PM CEMS to a PMDS. 

Consequently, we propose to provide 

specific references to PS–11 and 

Procedure 2 where compliance with 

particular provisions would be required. 

Examples are the requirement to use 

Section 12.3 procedures of PS–11 to 

characterize alternative correlation 

models and Sections 12.4 and 13.2 

procedures to identify the most 

appropriate correlation model. 

With respect to Procedure 2, there are 

many quality assurance requirements 

for PM CEMS that are not appropriate 

for a PMDS, including absolute 

correlation audits and response 

correlation audits. Accordingly, we are 

proposing to require compliance with 

specific Procedure 2 requirements rather 

than making a generic reference to use 

Procedure 2 as guidance. 

The Procedure 2 requirements that 

would apply to a PMDS are the 

requirements to perform an RRA. See 

Section 10.3 (6) of Procedure 2. As 

stated in the final rule, you must 

conduct an annual RRA, except that you 

need only conduct it on a 3-year interval 

after passing two sequential annual 

RRA. Today’s proposal would expressly 

require you to comply with the 

provisions of Section10.4 (6) that 

establish the criteria for passing a RRA. 

Those provisions state that, if you fail 

the RRA, the PMDS is out of control. 

If the PMDS is out of control, today’s 

proposal would also require you to 

comply with Section 10.5 of Procedure 

2 that requires you to take corrective 

action until your PMDS passes the RRA 

criteria. If the RRA criteria cannot be 

achieved, you would not be required to 

perform a Relative Correlation Audit 

(RCA) as provided by Section 10.5 

(1)(ii), however. That provision is 

appropriate for a PM CEMS but not a 

PMDS. If the RRA criteria cannot be 

achieved, today’s rule would require 

you to re-establish the alarm set-point 

without using extrapolation as the 

average of the run averages of PMDS 

responses for the most recent 

comprehensive performance test to 

demonstrate compliance with the PM 

emission standard. See proposed 

paragraph (c)(9)(iii)(A). 

6. Operations When the PMDS Is 

Malfunctioning 

When reviewing the PMDS 

requirements in the final rule in 

response to the reconsideration petition, 

we determined that the rule was silent 

on operations when the PMDS is 

malfunctioning because it is out of 

control or inoperable, for example. We 

believe it is reasonable to require that 


jlentini on PROD1PC65 with PROPOSAL2
52634 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

23SRE means system removal efficiency and is a 

measure of the percentage of HAP that is removed 

prior to being emitted relative to the amount fed to 

the unit from all inputs (e.g., hazardous waste, 

fossil fuels, raw materials). 

24As noted in the preamble, there were a few 

instances where the SRE/Feed methodology was not 

used to determine the MACT floor for HAP metals 

and total chlorine. See, for example, 69 FR at 21224. 

However, we did use the SRE/Feed approach for the 

standards addressed by CRWI’s petition for 

reconsideration. 

25USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Appendix E, 

Tables ‘‘SF–INC–HG’’ and ‘‘SF–INC–LVM.’’

26The two instances in which there was a tie for 

the single best performing source include mercury 

and low volatile metals for incinerators. The two 

sources tied in the mercury analysis had emissions, 

including variability (the 99th percentile upper 

prediction limit), of 8.1 and 907 ug/dscm. The low 

volatile metals MACT floor analysis included a 

three-way tie. The three sources had emissions of 

23, 129, and 198 ug/dscm. See USEPA, ‘‘Technical 

Support Document for HWC MACT Standards, 

Volume III: Selection of MACT Standards,’’

September 2005, Appendix E, Tables ‘‘SF–INC–HG’’

and ‘‘SF–INC–LVM.’’

operations when the PMDS is 

unavailable be considered the same as 

operations that exceed the alarm setpoint given that there would be no 

information to conclude otherwise. 

Thus, we are proposing to require you 

to take corrective measures to correct 

the malfunction or minimize emissions, 

and the duration of the malfunction 

would be added to the time when the 

PMDS exceeds the alarm set-point. If the 

time of PMDS malfunction and 

exceedance of the alarm set-point 

exceeds 5 percent of the time during any 

6-month block time period, you would 

have to submit a notification to the 

Administrator within 30 days of the end 

of the 6-month block time period that 

describes the causes of the exceedances 

and PMDS malfunctions and the 

revisions to the design, operation, or 

maintenance of the combustor, air 

pollution control equipment, or PMDS 

you are taking to minimize exceedances. 

We also determined that the bag leak 

detection system (BLDS) requirements 

under § 63.1209(c)(8) did not include 

provisions to address periods of time 

when the BLDS is malfunctioning. 

Accordingly, we are proposing to make 

similar revisions to the BLDS 

requirements. 

D. Tie-Breaking Procedure for New 

Source Standards 

In the notice of proposed rulemaking, 

we described methodologies used to 

determine MACT floors for HAP, 

including the SRE/Feed approach 23

used specifically for those HAP whose 

emissions can be controlled in part by 

controlling the amount of HAP in the 

hazardous waste fed to the source. See 

69 FR at 21223–25. In general, the SRE/ 

Feed methodology is applicable to HAP 

metals and chlorine. The SRE/Feed 

approach identifies the sources in our 

data base with the lowest hazardous 

waste feedrate of the HAP and the 

sources with the best system removal 

efficiency for the same HAP. The best 

performing sources (MACT pool) are 

those with the best combination of 

hazardous waste feedrate and system 

removal efficiency as determined by our 

ranking procedure. We then use the 

emission levels from these sources to 

calculate the emission level achieved by 

the average of the best performing 

sources. When determining the MACT 

floor for new sources, we use the 

emission level from the single source 

with the best combination of hazardous 

waste feedrate and system removal 

efficiency. 

We also discussed how we 

determined which sources are included 

in the MACT pool. First, we ranked 

each source’s hazardous waste feedrate 

against all the other sources’ feedrates 

on a HAP-by-HAP (e.g., mercury) or 

HAP group (e.g., low volatile metals) 

basis. Then we assigned a relative rank 

of 1 to the source with the lowest 

feedrate level, a rank of 2 to the source 

with the second lowest feedrate, and so 

on. Next, we applied the same ranking 

procedure to each source’s system 

removal efficiency for the same HAP. 

The source with the best system 

removal efficiency is assigned a relative 

rank of 1, and so on. Then each source’s 

feedrate ranking score and system 

removal efficiency score were summed 

to obtain an SRE/Feed aggregated score. 

Finally, we arrayed the SRE/Feed 

aggregated scores from lowest to highest 

and the MACT pool was comprised of 

the required number of sources with the 

lowest SRE/Feed aggregated scores. For 

new sources the MACT pool for a given 

HAP or HAP group is comprised of the 

single best performing source, that is, 

the source with lowest SRE/Feed 

aggregated score. See 69 FR at 21224. 

In the final rule, we used the SRE/ 

Feed methodology for determining 

MACT floors for HAP metals and total 

chlorine.24 The preamble to the final 

rule also presented a summary of our 

responses to significant comments 

regarding the SRE/Feed approach. See 

70 FR at 59441–47. We also noted that 

two analyses for new incinerators 

identified multiple sources with 

identical single best SRE/Feed 

aggregated scores.25 This resulted in a 

tie for the single best performing source 

for the mercury and low volatile metals 

new source standards for incinerators. 

See 70 FR at 59447. In these instances, 

we applied a tie-breaking procedure to 

identify the single best performing 

source and we selected the source with 

the lowest emissions (of the tied 

sources) as the criterion to break the tie. 

The CRWI states that EPA’s tiebreaking procedure has not been the 

subject of direct opportunity for public 

comment. We agree with petitioner 

CRWI. Because there were no ties for the 

single best performing source in the 

proposal rule, we did not discuss the 

concept of selecting the source with the 

lowest emissions as the criterion to 

break ties. In addition, the tie-breaking 

procedure (in the rare instances when a 

tie occurs) is a key step in setting 

standards because the selected directly 

affects the stringency of the emission 

standard. Therefore, we conclude that 

there was no opportunity to comment 

on this tie-breaking procedure and grant 

CRWI’s petition for reconsideration. 

The CRWI states in their petition that 

EPA’s decision to break the tie by 

selecting the source with the lowest 

emissions results in a MACT floor that 

is below (more stringent) what the other 

best performers of the tied sources are 

achieving.26 CRWI argues that selecting 

the source with the lowest emissions is 

inconsistent with the statutory mandate. 

Additionally, CRWI argues that relying 

on emission levels as the tie-breaker 

between best performing sources is 

inconsistent with EPA’s MACT floor 

methodology because EPA adopted the 

SRE/Feed approach while rejecting an 

emissions-based approach. 

The arguments presented in CRWI’s 

petition for reconsideration have not 

persuaded us that our tie-breaking 

procedure—selecting the source (of the 

tied sources) with the lowest emissions 

as the single best performing source—

was erroneous or inappropriate. We 

believe this approach is a reasonable 

interpretation of section 112(d)(3), that 

states the new source standard shall not 

be less stringent than the emission 

control that is achieved in practice by 

the best controlled similar source 

(‘‘source’’ being singular, not plural). 

Moreover, we believe use of the 

emission level as the tie-breaking 

criterion is reasonable, not only because 

it is a measure of control, but because 

we have already fully accounted for 

hazardous waste feedrate control and 

system removal efficiency in the SRE/ 

Feed ranking methodology. To choose 

either of these factors to break the tie 

would give that factor disproportionate 

weight. Nevertheless, given that the tiebreaker issue came up between proposal 

and promulgation of the final rule and 

so has not been the subject of direct 

opportunity for public comment, in 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52635 

27See HAP-specific discussions in preamble (69 

FR at 21240–21297). See also USEPA, ‘‘Draft 

Technical Support Document for HWC MACT 

Standards, Volume V: Emissions Estimates and 

Engineering Costs,’’ March 2004, Section 4.6, 

Appendices F and G. 

28See comments of Sierra Club, docket item EPA–

HQ–OAR–2004–0022–0292, page 30. 

29USEPA, ‘‘Response to Comments on April 20, 

2004 HWC MACT Proposed Rule, Volume I: MACT 

Issues,’’ September 2005, pages 152–153. 

30USEPA, ‘‘Draft Technical Support Document 

for HWC MACT Standards—Reconsideration of the 

Beyond-the-Floor Evaluations,’’ July 2006. 

31USEPA, ‘‘EPA Air Pollution Control Cost 

Manual,’’ available at http://www.epa.gov/ttn/catc/ 

products.html. 

today’s notice of reconsideration we are 

requesting public comment on our 

decision to select the source (of all tied 

sources) with the lowest emissions as 

the single best performing source for 

purposes of new source floor 

determinations. In addition, we are 

seeking comment on alternative tiebreaking criteria suggested by the CRWI 

such as the single source (of the tied 

sources) with the best system removal 

efficiency, the single source (of the tied 

sources) with the worst system removal 

efficiency, or some form of averaging 

(e.g., the 99th percentile upper 

prediction limit) of the tied sources. 

Because we are proposing to retain 

the same tie-breaker procedure as in the 

final rule, the new source emission 

standards promulgated for mercury and 

low volatile metals under 

§ 63.1219(b)(2) and (b)(4) would not 

change. 

E. Beyond-the-Floor Analyses To 

Consider Multiple HAP That Are 

Similarly Controlled 

In developing MACT standards, we 

also must determine whether further 

emission reductions are achievable 

using different or additional control 

technologies. We may establish 

standards more stringent than the 

MACT floor based on the consideration 

of the cost of achieving the emissions 

reductions, any non-air health and 

environmental impacts, and energy 

requirements. CAA section 112(d)(2). 

We call these standards beyond-thefloor standards. 

In the notice of proposed rulemaking, 

we evaluated beyond-the-floor 

standards for each HAP or HAP group 

(i.e., semivolatile metals comprised of 

lead and cadmium, low volatile metals 

comprised of arsenic, beryllium, and 

chromium). The beyond-the-floor 

evaluations were discussed in the 

preamble and presented in the technical 

support document.27 As explained in 

the technical support document, each 

beyond-the-floor analysis was done 

separately by HAP. For example, when 

evaluating the cost of a beyond-the-floor 

standard for dioxin/furans based on 

activated carbon injection, we applied 

the full cost of an activated carbon 

injection system to the beyond-the-floor. 

In a separate analysis, the same 

approach was used when evaluating a 

beyond-the-floor standard for mercury 

based on activated carbon injection. We 

received a public comment that the 

beyond-the-floor analyses for similarly 

controlled HAP by a single type of 

control device (e.g., activated carbon 

injection) overestimate the costs for an 

individual HAP because the control 

system would reduce multiple HAP.28

The commenter argued that EPA may 

have found additional beyond-the-floor 

results acceptable had the control 

device costs been apportioned properly 

among the HAP. 

To address this comment in the final 

rule, we revised the beyond-the-floor 

analyses to include an additional 

analysis evaluating multiple HAP that 

can be controlled by a single control 

device (i.e., activated carbon injection 

for dioxin/furans and mercury and 

improved particulate matter control for 

the nonvolatile metals and particulate 

matter).29 Noting that the first 

appearance of these new beyond-thefloor analyses was in the final rule, the 

Sierra Club’s petition for 

reconsideration argues that EPA 

provided no opportunity to comment on 

these analyses. We agree with petitioner 

Sierra Club because we included these 

additional analyses in the final rule in 

response to a public comment. 

Therefore, we are granting the Sierra 

Club’s request for reconsideration of the 

beyond-the-floor analyses that are based 

on activated carbon injection and 

improved particulate matter control. In 

today’s notice, we are providing an 

opportunity for public comment on 

these beyond-the-floor analyses. 

In addition, after reexamining the 

beyond-the-floor analyses used in the 

final rule for similarly controllable HAP 

by a single control device and also the 

issues raised in the petition for 

reconsideration of the Sierra Club, we 

are proposing to revise the beyond-thefloor methodology. The methodology is 

presented in the technical support 

document supporting this rulemaking; 

however, a brief discussion of the 

methodology is presented below.30 The 

results of the proposed beyond-the-floor 

analyses are also presented in this 

support document. 

The initial step would be to identify 

a suite of beyond-the-floor standards for 

each HAP or HAP group for each source 

category or subcategory. The six HAP or 

HAP groups include dioxin/furans, 

mercury, particulate matter (as a 

surrogate for the unenumerated metals 

antimony, cobalt, manganese, nickel, 

and selenium), semivolatile metals, low 

volatile metals, and hydrogen chloride 

and chlorine (total chlorine). We call 

this the comprehensive beyond-the-floor 

analysis. For reasons discussed below, 

beyond-the-floor evaluations for carbon 

monoxide and hydrocarbons are done 

separately. Next we identify an air 

pollution control strategy capable of 

achieving the potential beyond-the-floor 

standards and estimate costs of these 

controls using, when available, 

standardized and peer reviewed cost 

models developed by EPA.31 In the case 

of control devices that are capable of 

reducing emissions of more than one 

HAP or HAP group, including activated 

carbon injection (or carbon beds) and 

improved particulate matter control, we 

apportioned the total costs of the control 

device to those HAP that would be 

controlled by the technology. HAP 

emission reductions and non-air quality 

health and environmental impacts and 

energy requirements were then 

estimated. 

We next determined whether the 

comprehensive beyond-the-floor 

analysis was achievable by applying the 

statutory factors of the cost of achieving 

the emission reductions, any non-air 

quality health and environmental 

impacts, and energy requirements for 

each HAP or HAP group. The cost 

metric we would use to consider the 

cost of achieving emissions reductions 

is cost-effectiveness—dollars per unit 

mass reduction (e.g., $ per ton 

removed), a reasonable means of 

assessing cost of control technologies 

and strategies. See, e.g. Husqvarna AB v. 

EPA, 254 F. 3d 195, 200 (D.C. Cir. 2001). 

After considering these statutory factors, 

we evaluated each of the six HAP or 

HAP groups of the comprehensive 

analysis to identify those beyond-thefloor standards where further emission 

reductions appear achievable. If 

emission reductions appear achievable 

for all six HAP or HAP groups, then we 

would propose beyond-the-floor 

standards for these HAP. For cocontrolled HAP, however, if some 

results appeared achievable while 

others did not, we conducted a 

subsequent analysis whereby the costs 

associated with the unachievable HAP 

are reapportioned to those co-controlled 

HAP appearing achievable. We believe 

this reapportioning step is necessary to 

prevent costs of control of a cocontrolled HAP from being diluted by 

costs from unachievable (too costly) 

reductions of another co-controlled 

HAP. Without the reapportionment of 


jlentini on PROD1PC65 with PROPOSAL2
52636 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

32Even though costs would be reapportioned 

under this proposed approach, we note that 

emissions reductions from a rejected beyond-thefloor standard of a co-controlled HAP would remain 

a collateral benefit of other accepted co-controlled 

HAP. 

33Note that we are proposing to revise this 

standard from 68 mg/dscm to 69 mg/dscm in 

today’s notice. See Section V. J below. 

34Carbon monoxide and hydrocarbons are widely 

accepted indicators of combustion conditions and 

are used (along with the destruction and removal 

efficiency standard) as surrogates to control 

emissions of nondioxin/furan organic hazardous air 

pollutants. 

35USEPA, ‘‘Draft Technical Support Document 

for HWC MACT Standards—Reconsideration of the 

Beyond-the-Floor Evaluations,’’ July 2006, Section 

4. 36For example, the beyond-the-floor standard for 

a hydrocarbon MACT floor of 10 ppmv would be 

9.7 ppmv. 37USEPA, ‘‘Draft Technical Support Document 

for HWC MACT Standards—Reconsideration of the 

Beyond-the-Floor Evaluations,’’ July 2006, Section 

4.1.1 

38See petition for reconsideration of the Sierra 

Club, docket item EPA–HQ–OAR–2004–0022–0517, 

page 26. 

39USEPA, ‘‘EPA Air Pollution Control Cost 

Manual,’’ EPA/452/B–02–001, January 2002, 

sections 3.1, 5.2, and 6. 

40Nonetheless, we also conducted the 

comprehensive analysis for new sources to 

investigate the extent that disposal costs of spent 

activated carbon injection would impact the 

achievability of potential beyond-the-floor 

standards. As presented in the technical support 

document, when disposal costs are 

(inappropriately) eliminated (reduced to zero), there 

would be no changes to the conclusions proposed 

regarding those standards that appear achievable. 

See ‘‘Draft Technical Support Document for HWC 

MACT Standards ‘‘ Reconsideration of the Beyondthe-Floor Evaluations,’’ July 2006, Section 5.2. 

costs, these costs would be assigned to 

a rejected beyond-the-floor standard.32

We then evaluated the beyond-the-floor 

results after reapportioning costs to the 

remaining co-controlled HAP to 

determine whether the further 

emissions reductions are achievable. 

This iterative process continues until 

we determine all standards appear 

achievable or no beyond-the-floor 

standards appear achievable. This 

iterative process for co-controlled HAP 

continues until all remaining cocontrolled HAP are judged achievable or 

no beyond-the-floor standards appear 

achievable for co-controlled HAP. 

Applying this proposed methodology 

would yield the same results as the 

methodology used in the final rule. 

These are beyond-the-floor standards of 

68 mg/dscm 33 (0.030 gr/dscf) for 

existing sources and 34 mg/dscm (0.015 

gr/dscf) for new sources, and beyondthe-floor standards for liquid fuel 

boilers for the dry air pollution control 

device subcategory of 0.40 ng TEQ/dscm 

for existing and new sources. Since the 

standards would not change, we are not 

reproposing them. We are, however, 

soliciting comment on the revised 

methodology for assessing achievability 

of standards for co-controlled HAP. 

As mentioned above, carbon 

monoxide and hydrocarbons 34 are not 

included in the comprehensive beyondthe-floor analysis. While a beyond-thefloor technology such as activated 

carbon injection may provide additional 

control of certain organic hazardous air 

pollutants (HAP), we believe it is 

inappropriate to evaluate (under this 

comprehensive option) numerical 

beyond-the-floor standards for carbon 

monoxide and hydrocarbons. When 

complying with the current standards 

for carbon monoxide and hydrocarbons, 

sources can elect to comply with either 

standard (e.g., 70 FR at 59410–59411). 

With respect to the carbon monoxide 

standard, the use of activated carbon 

injection (or any other beyond-the-floor 

techniques evaluated in the 

comprehensive analysis) would not 

reduce or affect emissions of carbon 

monoxide. Thus, there is no way to 

identify a numerical emissions limit for 

carbon monoxide that would reflect 

potential reductions in organic HAP 

emissions because there is no direct 

correlation between carbon monoxide 

and emissions of organic HAP. Given 

that we cannot identify a numerical 

beyond-the-floor standard for carbon 

monoxide and given that the majority of 

sources elect to comply with the carbon 

monoxide standard rather than the 

hydrocarbon standard, we believe it is 

not appropriate to include carbon 

monoxide in the comprehensive 

beyond-the-floor analysis. 

We also have concerns about 

identifying a beyond-the-floor standard 

for hydrocarbons under this 

comprehensive option. As we document 

in the technical support document, a 

significant percentage of total stack 

organics (that would be measured by a 

hydrocarbon monitor) are not organic 

HAP (e.g., short-chain aliphatic 

compounds like methane, propane, and 

acetylene).35 We estimate that the 

organic HAP emissions comprise 

approximately 20% of total hydrocarbon 

emissions. Furthermore, activated 

carbon injection is estimated to capture 

only a small fraction—13%—of the 

organic HAP emissions. Thus, we 

estimate that the use of activated carbon 

injection would reduce organic HAP 

emissions by less than 3% on average. 

This estimate would allow us to identify 

a potential numerical beyond-the-floor 

standard for hydrocarbons that would 

reflect reductions achieved by activated 

carbon injection.36 However, we believe 

it would be inappropriate to identify a 

beyond-the-floor standard as part of the 

comprehensive analysis because there is 

much uncertainty in the 3% estimate.37

Furthermore, there are numerous factors 

that affect combustion efficiency, and, 

subsequently, hydrocarbon emissions. 

Thus, a source may not be able to 

replicate its hydrocarbon emissions 

levels (and other sources may not be 

able to duplicate those emission levels) 

if the quantity of organic HAP that are 

amenable to capture with activate 

carbon injection decreases as a result of 

one of the many factors that affect 

combustion efficiency. Finally, given 

that very few sources elect to comply 

with the hydrocarbon standard rather 

than the carbon monoxide standard (a 

standard for which we cannot identify 

a numerical beyond-the-floor level 

based on activated carbon injection), we 

believe that it is more appropriate to 

present estimated reductions of organic 

HAP emissions that would result from 

an activated carbon injection beyondthe-floor option in lieu of identifying 

explicit beyond-the-floor standards for 

carbon monoxide and hydrocarbons. 

In its petition for reconsideration, the 

Sierra Club also opposes inclusion of 

costs associated with the disposal of 

spent carbon as a solid and/or 

hazardous waste when carbon injection 

is used as a beyond-the-floor control 

technology.38 We disagree because 

disposal costs are one of the many direct 

costs associated with operating a carbon 

injection system (as well as an example 

of a non-air quality health and 

environmental impact). As mentioned 

above, our cost estimates are based on 

standardized and peer reviewed cost 

models developed by EPA. Indeed, the 

‘‘EPA Air Pollution Control Cost 

Manual’’ includes specific cost inputs 

for disposal costs not only for the 

disposal of solid waste from carbon 

adsorber systems, but also wastewater 

disposal costs for wet scrubbers for acid 

gas control, dust disposal cost for 

baghouses and electrostatic precipitators 

for particulate matter control, and waste 

liquid collection and disposal costs for 

wet scrubbers for particulate matter 

control.39 Therefore, the cost estimates 

presented in the technical support 

document include disposal costs for 

certain beyond-the-floor controls.40

In summary, we are accepting public 

comment on the revised beyond-thefloor analyses and the conclusions. 

F. Dioxin/Furan Standard for 

Incinerators With Dry Air Pollution 

Control Devices 

We proposed to subcategorize 

incinerators between wet or no air 

pollution control devices and 

incinerators equipped with dry air 

pollution control devices or waste heat 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52637 

41 In its petition for reconsideration, the Sierra 

Club also petitioned EPA to reconsider the decision 

to subcategorize the hazardous waste incinerator 

source category. As discussed in Section III above, 

we have denied their request for reconsideration. 

Therefore, we are neither soliciting comments nor 

will we consider any comments received on the 

decision to subcategorize the incinerator category. 

42Sierra Club also petitioned EPA to reconsider 

the dioxin/furan standard for the subcategory of 

incinerators with wet or no air pollution control 

devices. This standard is not discussed in today’s 

proposed rule because EPA has denied the 

reconsideration request as discussed in Section III 

above. Therefore, we are neither requesting 

comments nor will we consider any comments 

received on the dioxin/furan standard for 

incinerators with wet or no air pollution control 

devices. 

43See USEPA, ‘‘Draft Technical Support 

Document for HWC MACT Standards, Volume III: 

Selection of MACT Standards,’’ March 2004, 

Appendix C, Table ‘‘E–INC/D+WHB–DF.’’ Note that 

because the issue raised in the Sierra Club’s petition 

does not affect the dioxin/furan standard for new 

incinerators, the scope of this discussion will be 

limited to existing incinerators. 

44EPA’s data base contains emissions data from 

Clean Harbors Aragonite for six different test 

conditions. The proposed dioxin/furan standard 

was based, in part, on the trial burn data from Clean 

Harbors Aragonite that was conducted in June 2001. 

45Replacement standards can be no less stringent 

than existing standards, including the interim 

standards under §§ 63.1203–1205. See 70 FR at 

59457–58. 

46See USEPA, ‘‘Technical Support Document for 

the HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Appendix E, 

Table ‘‘E–INCDWHB–DF.’’

47See USEPA, ‘‘Response to Comments on April 

20, 2004 HWC MACT Proposed Rule, Volume I, 

MACT Issues,’’ September 2005, Section 1.3.2, and 

‘‘Technical Support Document for the HWC MACT 

Standards, Volume III: Selection of MACT 

Standards,’’ September 2005, Section 10.1.1. 

48See docket item EPA–HQ–OAR–2004–0022–

0401. 

boilers.41 See 69 FR at 21214 (This is 

not subcategorizing on the basis of an 

emission control technology, but rather 

on the basis of a basic difference in 

process). Accordingly, we proposed 

separate emission standards for each 

subcategory for incinerators for dioxin/ 

furans.42 69 FR at 21240–42. The 

standard proposed for existing 

incinerators with dry air pollution 

control devices or waste heat boilers 

(the standard at issue in this discussion) 

was 0.28 ng TEQ/dscm.43 69 FR at 

21240. As discussed in the proposal, 

this standard was based on an 

evaluation of compliance test emissions 

data of the MACT pool sources 

comprising this subcategory of 

incinerators. As noted in the petition of 

the Sierra Club, one of the five MACT 

pool sources was the Clean Harbors 

Aragonite incinerator located in Utah.44

The consideration of these data in the 

MACT floor analysis is the specific 

point in contention in the Sierra Club’s 

petition for reconsideration. 

In the final rule, we adopted this same 

subcategorization scheme and 

promulgated separate dioxin/furan 

emissions standards for each 

subcategory of incinerators. See 70 FR at 

59420, 59467. Our revised MACT floor 

analysis yielded a calculated floor level 

of 0.42 ng TEQ/dscm, that reflected 

emissions variability. We then evaluated 

whether this calculated floor level was 

less stringent than the interim dioxin/ 

furan standard under § 63.1203(a)(1). 

Because we concluded the calculated 

floor level of 0.42 ng TEQ/dscm was less 

stringent than the interim dioxin/furan 

standard, we promulgated the interim 

dioxin/furan standard as the standard.45

Thus, the emission standard 

promulgated for existing incinerators 

with dry air pollution control devices or 

waste heat boilers was either 0.20 ng 

TEQ/dscm or 0.40 ng TEQ/dscm 

provided that the combustion gas 

temperature at the inlet to the initial 

particulate matter control device is 400 

°F or lower (§ 63.1219(a)(1)). The 

analyses supporting these standards are 

included in the technical support 

document.46

As discussed in the final rule, the 

calculated MACT floor increased from 

0.28 ng TEQ/dscm to 0.42 ng TEQ/dscm 

because we were alerted in comments to 

the proposed rule that our MACT pool 

analysis considered dioxin/furan data 

that should not have been included. 

Commenters stated that the Clean 

Harbors Aragonite incinerator (source 

327C10 in the data base) encountered 

problems with its carbon injection 

system during the emissions test from 

which the data were obtained and 

subsequently used in the MACT floor 

analysis for this incinerator 

subcategory.47 We investigated the 

commenters’ claims after proposal and 

confirmed the problems that were 

encountered during testing. See 70 FR at 

59419, 59432. Importantly, we 

determined that these dioxin/furan 

emissions data were not used to 

establish operating parameter limits for 

the carbon injection system based on 

this test.48 Therefore, we no longer 

designate this test condition as 

‘‘compliance test’’ data, that is the type 

of data upon which this MACT standard 

is based. After concluding that these 

emissions data are not appropriate for 

inclusion in the MACT floor analysis, 

we instead substituted in its place other 

readily available compliance test 

emissions data in our data base for that 

facility. While the substituted emissions 

data are indeed older than the 

problematic data, these data are the 

most recent valid compliance data 

available to us for this source. As a 

result of this data handling decision, the 

calculated MACT floor increased as 

discussed earlier. 

The Sierra Club notes in its petition 

that the promulgated MACT standard 

for this subcategory of incinerators 

increased from that proposed as a result 

of EPA’s decision to use different 

dioxin/furan emissions data from the 

Clean Harbors Aragonite incinerator. 

The Sierra Club states that EPA had 

provided no opportunity to comment on 

this data handling decision because it 

was not reflected in the proposed rule. 

We agree with petitioner Sierra Club 

that it was impracticable for them to 

raise its concern about the use of the 

Clean Harbors Aragonite emissions data. 

Therefore, we are granting the Sierra 

Club’s petition for reconsideration for 

this issue. 

The Sierra Club contends that EPA’s 

data substitution for the Clean Harbors 

Aragonite incinerator is arbitrary and 

capricious because EPA rejected the 

newer test data to use older and worse 

test data. The Sierra Club states that a 

source encountering problems with its 

air pollution control equipment does 

not justify using other data from an 

earlier test with higher emissions 

because EPA had no reason to conclude 

that the incinerator would perform 

worse than the level it achieved while 

encountering problems. 

The arguments presented in the 

petition for reconsideration have not 

persuaded us, subject to consideration 

of further comment, that our MACT 

floor determination in the final rule was 

inappropriate. We believe we correctly 

identified the MACT floor for this 

incinerator subcategory based on the 

available emissions data. The Clean 

Harbors Aragonite data from 2001 

cannot be used in the MACT floor 

analysis because these data simply are 

not representative of performance due to 

problems encountered. We note that the 

substituted Clean Harbors Aragonite 

data considered in the final rule MACT 

floor analysis were not included in the 

pool of the five best performing sources 

for the dioxin/furan standard. If we had 

simply excluded the problematic data 

(and not substituted the older data), 

then we would have promulgated the 

identical emission standard because the 

substituted data for Clean Harbors 

Aragonite had no direct impact on the 

floor analysis (i.e., the data were not 

included in the MACT pool). 

Nevertheless, because we changed the 

floor determination between proposal 

and promulgation in response to 

comments received on the proposal, and 

because we also made certain data 

editing decisions (again in response to 

public comment) that resulted in a 

different data base being used for the 


jlentini on PROD1PC65 with PROPOSAL2
52638 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

49See letter from James Pew to Stephen Johnson, 

dated December 12, 2005, Section XII, docket item 

EPA–HQ–OAR–2004–0022–0517. 

floor determination than we used at 

proposal, we are requesting public 

comments on the MACT floor analysis 

that supported the final rule. 

Specifically, we are soliciting comment 

on the final rule MACT floor analysis 

that included our decision to replace the 

2001 Clean Harbors Aragonite data with 

other dioxin/furan emissions data in our 

data base. 

Because we are proposing to retain 

the final rule MACT floor analysis for 

the subcategory of incinerators 

equipped with dry air pollution control 

devices or waste heat boilers, the 

emission standards promulgated for 

dioxin/furans under § 63.1219(a)(1)(i) 

and (b)(1)(i) would not change (subject 

to consideration of public comment). 

G. Provisions of the Health-Based 

Compliance Alternative 

The final rule allows you to establish 

and comply with health-based 

compliance alternatives for total 

chlorine for hazardous waste 

combustors other than hydrochloric 

acid production furnaces in lieu of the 

MACT technology-based emission 

standards established under §§ 63.1216, 

63.1217, 63.1219, 63.1220, and 63.1221. 

See 70 FR at 59413–19 and § 63.1215. 

Sierra Club petitioned for 

reconsideration stating that EPA 

changed several provisions of the 

health-based compliance alternative 

after the period for public comment and 

therefore did not provide notice and 

opportunity for public comment.49 In 

addition, Sierra Club states that three 

new provisions are problematic: (1) It is 

unlawful to allow sources to comply 

with the health-based compliance 

alternative without prior approval from 

the permitting authority; (2) it is 

unlawful to allow a source to obtain an 

unlimited extension of the compliance 

date if their eligibility demonstration is 

disapproved and the source is unable to 

change the design or operation of the 

source to comply with the MACT 

emission standards by the compliance 

date; and (3) the Agency cannot rely on 

the Title V program as the vehicle for 

establishing health-based compliance 

alternatives. 

We are granting reconsideration of 

these provisions because we developed 

them in response to comments on the 

proposed rule, after the period for 

public comment as Sierra Club states. 

Furthermore, to address Sierra Club’s 

concerns, we are proposing to revise the 

rule pertaining to these provisions as 

follows: (1) The rule would state that 

the operating requirements specified in 

the eligibility demonstration are 

‘‘applicable requirements’’ as defined in 

40 CFR 70.2 or 71.2 and therefore must 

be incorporated in the Title V permit; 

(2) a source may comply with the 

health-based compliance alternative 

without prior approval from the 

permitting authority provided that the 

source has made a good faith effort to 

provide complete and accurate 

information and to respond to any 

requests for additional information; and 

(3) the compliance date extension 

cannot exceed one year if the eligibility 

demonstration is disapproved and the 

source is unable to change the design or 

operation to comply with the MACT 

emission standards by the compliance 

date. These provisions are discussed 

below. 

Note that we are accepting further 

comment on these provisions in general 

in addition to requesting comment on 

the proposed revisions to the 

provisions. We believe the provisions in 

general are warranted for the reasons 

provided in the final rule and restate 

these reasons below. Nonetheless, we 

are open to comment and will 

determine whether changes are 

warranted other than those we are 

proposing. 

1. Complying With the Health-Based 

Compliance Alternative Without Prior 

Approval From the Permitting Authority 

Would Be Conditional 

The final rule does not require prior 

approval of the eligibility demonstration 

for existing sources. If your permitting 

authority has not approved your 

eligibility demonstration by the 

compliance date, and has not issued a 

notice of intent to disapprove your 

demonstration, you may nonetheless 

begin complying, on the compliance 

date, with the HCl-equivalent emission 

rate limits and associated chlorine 

feedrate limits you present in your 

eligibility demonstration. See 70 FR at 

59484 and § 63.1215(e)(2)(i)(C). 

We are today providing an 

opportunity to comment on this 

provision in general and on a proposal 

to revise the rule to clarify that a time 

extension is conditioned on your 

making a good faith effort to submit 

complete and accurate information and 

to respond in a timely manner to any 

requests for additional information. 

Many commenters on the proposed 

rule stated that requiring prior approval 

of the eligibility demonstration would 

be unworkable. Commenters were 

concerned that the permitting authority 

may not approve the demonstration 

prior to the compliance date, even 

though the source has submitted 

complete and accurate information and 

has responded to any requests for 

additional information in good faith. A 

commenter suggested that, if the 

permitting authority has neither 

approved nor disapproved the eligibility 

demonstration by the compliance date, 

the source may begin complying on the 

compliance date with the alternative 

health-based limits specified in the 

eligibility demonstration. 

We agreed with commenters that 

requiring prior approval of the 

eligibility demonstration may be 

unworkable for the reason commenters 

suggested. Accordingly, the final rule 

does not require prior approval of the 

eligibility demonstration for existing 

sources. If your permitting authority has 

not approved your eligibility 

demonstration by the compliance date, 

and has not issued a notice of intent to 

disapprove your demonstration, you 

may nonetheless begin complying, on 

the compliance date, with the HClequivalent emission rate limits and 

associated chlorine feedrate limits you 

present in your eligibility 

demonstration. 

When reviewing this provision in 

response to Sierra Club’s petition for 

reconsideration, we noticed that the 

regulatory language at 

§ 63.1215(e)(2)(i)(C) simply stated that 

you could begin complying on the 

compliance date with the health-based 

alternative compliance requirements 

absent approval from the permitting 

authority if the permitting authority had 

not issued a notice of approval or intent 

to disapprove your eligibility 

demonstration by the compliance date. 

We inadvertently did not make the 

provision conditional on your making a 

good faith effort to provide complete 

and accurate information and to 

respond to any requests for additional 

information in a timely manner. 

Accordingly, we propose today to revise 

that regulatory provision to say: 

• If your permitting authority has not 

approved your eligibility demonstration by 

the compliance date, and has not issued a 

notice of intent to disapprove your 

demonstration, you may begin complying, on 

the compliance date, with the HCl-equivalent 

emission rate limits you present in your 

eligibility demonstration provided that you 

have made a good faith effort to provide 

complete and accurate information and to 

respond to any requests for additional 

information in a timely manner. 

If the permitting authority believes 

that you have not made a good faith 

effort to provide complete and accurate 

information or to respond to any 

requests for additional information, the 

authority may notify you in writing by 

the compliance date that you have not 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52639 

met the conditions for complying with 

the health-based compliance alternative 

without prior approval. 

2. An Extension of the Compliance Date 

Granted Upon Disapproval of an 

Eligibility Demonstration Cannot 

Exceed One Year 

The final rule states that the 

permitting authority should notify you 

of approval or intent to disapprove your 

eligibility demonstration within 6 

months after receipt of the original 

demonstration, and within 3 months 

after receipt of any supplemental 

information that you submit. A notice of 

intent to disapprove your eligibility 

demonstration, whether before or after 

the compliance date, will identify 

incomplete or inaccurate information or 

noncompliance with prescribed 

procedures and specify how much time 

you will have to submit additional 

information or comply with the total 

chlorine MACT standards. The 

permitting authority may extend the 

compliance date of the total chlorine 

MACT standards to allow you to make 

changes to the design or operation of the 

combustor or related systems as quickly 

as practicable to enable you to achieve 

compliance with the total chlorine 

MACT standards. See 70 FR at 59484 

and § 63.1215(e)(2)(i)(B) and (D). 

We are today providing an 

opportunity for comment on this 

provision in general and on a proposal 

to revise the rule to limit the time 

extension to (up to) one year. We are 

tentatively persuaded by Sierra Club’s 

argument that this limitation is needed 

to be consistent with CAA section 

112(i)(3)(B) (and the General Provisions 

under Subpart A—§ 63.6(i)(4)(i)(A)). 

Commenters on the proposed rule 

were concerned that the permitting 

authority may disapprove the eligibility 

demonstration for the health-based 

compliance alternative too late for the 

source to make changes to the design or 

operation of the combustor or related 

systems to enable the source to comply 

with the total chlorine MACT standard. 

See 70 FR at 59484. We agreed with that 

concern and therefore allowed the 

permitting authority to extend the 

compliance date. We inadvertently did 

not limit the extension of the 

compliance date to one year, however, 

consistent with the General Provisions 

and CAA section 112(i)(3)(B). 

3. The Health-Based Compliance 

Alternative Requirements Are 

Applicable Requirements 

We stated in the preamble to the final 

rule in response to comments that, 

because the health-based compliance 

alternative requirements are clearly 

defined (e.g., HCl-equivalent emission 

limits, chlorine feedrate limits), and 

because any standards or requirements 

created under CAA section 112 are 

considered applicable requirements 

under 40 CFR part 70, the compliance 

alternatives would be incorporated into 

Title V permits. See 70 FR at 59481. 

Nonetheless, petitioner Sierra Club 

states that the Agency cannot rely on the 

Title V program as the vehicle for 

establishing health-based compliance 

alternatives. 

We are today providing an 

opportunity for comment on this 

provision in general and on a proposal 

to revise the rule to add clarifying 

regulatory language stating that 

§ 63.1215 requirements are applicable 

requirements under part 70 and 

therefore must be included in the Title 

V permit as would any other applicable 

requirement. We note that the final rule 

specifies that operating requirements in 

the Notification of Compliance are 

applicable requirements for purposes of 

parts 70 and 71 of this chapter, and that 

the operating requirements specified in 

the Notification of Compliance will be 

incorporated in the Title V permit. See 

§ 63.1206(c)(1)(iv)–(v). The health-based 

compliance alternative is implemented 

using an eligibility demonstration that is 

independent from the Notification of 

Compliance. See § 63.1215(c) and (e). 

Accordingly, we propose today to add 

new § 63.1215(e)(3) to clarify that the 

health-based compliance alternative 

requirements established in an 

approved eligibility demonstration are 

applicable requirements and must be 

included in the Title V permit. 

V. Other Proposed Amendments 

A. Sunset Provision for the Interim 

Standards 

In the preamble to the final rule (70 

FR at 59503) we indicated in response 

to a comment that we were including a 

sunset provision for the interim 

standards in the final rule. However, 

that provision was inadvertently 

omitted from the rule. In today’s rule we 

propose to incorporate sunset 

provisions into §§ 63.1203, 63.1204, and 

63.1205. As indicated in the referenced 

preamble, the Interim Standards will be 

superseded by the final replacement 

standards on the compliance date for 

the replacement standards. See 

proposed additions to §§ 63.1203(e), 

63.1204(i), and 63.1205(e). 

B. Operating Parameter Limits for 

Sources With Fabric Filters 

In the final rule, we promulgated a 

new paragraph § 63.1206(c)(8) that sets 

forth operating parameter limits for 

sources equipped with a baghouse 

(fabric filter) (70 FR at 59486). If you use 

a baghouse to comply with one or more 

emission standard(s), you are either 

required to use a bag leak detection 

system that meets the specifications of 

§ 63.1206(c)(8)(ii), or meet the 

particulate matter detection system 

requirements specified in 

§ 63.1206(c)(9). However, the current 

language of § 63.1206(c)(9) appears to 

restrict the particulate matter detection 

system requirement to electrostatic 

precipitators and ionizing wet 

scrubbers. This was never our intent. 

Consequently, in today’s notice we are 

proposing to amend § 63.1206(c)(9) to 

include baghouses. 

C. Confirmatory Performance Testing 

Not Required for Sources That Are Not 

Subject to a Numerical Dioxin/Furan 

Emission Standard 

Section 63.1207(b)(3) of the final rule 

requires a one-time only test for dioxin/ 

furan emissions for those sources that 

are not required to meet a numerical 

dioxin/furan emission standard. You are 

only required to repeat this test if you 

change the design or operation of the 

source in a manner that may increase 

dioxin/furan emissions. Because dioxin/ 

furan testing is the only component of 

the confirmatory performance test (see 

§ 63.1207(b)(2)), it logically follows that 

confirmatory performance testing is not 

required for these sources. Nevertheless, 

the final rule did not include an explicit 

exemption from the confirmatory 

performance test requirement. In today’s 

notice, we are proposing to add a new 

paragraph (vi) to § 63.1207(b)(3) to 

clarify this point. 

D. Periodic Performance Tests for Phase 

I Sources 

Section 63.1207(d)(1) requires 

periodic comprehensive performance 

testing to begin no later than 61 months 

after commencing the previous 

comprehensive performance test. 

Section 63.1207(d)(2) requires 

confirmatory performance testing to 

begin no later than 31 months after 

commencing the previous performance 

test. However, in the Interim Standards 

Rule, promulgated on February 13, 

2002, we added § 63.1207(d)(4) that 

waived these periodic test requirements 

under the interim standards (67 FR at 

6815). 

Section 63.1207(d)(4) also includes 

language reinstating the periodic test 

requirements upon promulgation of the 

final replacement standards (i.e., 

October 12, 2005). Our intent was to 

reinstate periodic testing only for 

sources operating under the October 12, 

2005 replacement standards, not the 


jlentini on PROD1PC65 with PROPOSAL2
52640 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

50Note that are granting reconsideration of the 

decision to subcategorize the liquid fuel boiler 

source category by heating value, which includes 

standards based on this potential normalizing 

parameter. See Section IV.A above. 

interim standards. However, the current 

language could also be misinterpreted to 

require periodic testing by sources that 

remain under the interim standards. In 

today’s rule, we propose to amend 

§ 63.1207(d) to clarify that periodic 

comprehensive performance testing and 

confirmatory performance testing are 

only required for sources operating 

under the final replacement standards. 

For the reasons discussed in the 

preamble to the interim standards rule 

(67 FR at 6802), periodic testing is not 

required for sources that remain 

operating under the interim standards. 

E. Performance Test Waiver for Sources 

Subject to Hazardous Waste Thermal 

Concentration Limits 

In the 1999 final rule (64 FR at 

52828), we waived the performance test 

requirement for mercury, semivolatile 

metals, low volatile metals, or hydrogen 

chloride/chlorine gas for sources that 

demonstrated that the maximum 

theoretical emission concentration 

(MTEC) did not exceed the emission 

standard for that HAP. See § 63.1207(m). 

In essence, this provision waives the 

performance test if the constituent feed 

rate (after conversion to an exhaust gas 

concentration using continuously 

monitored exhaust gas flow data) is less 

than the applicable emission rate, 

assuming that 100% of the constituent 

in the feed is emitted from the 

combustion unit. 

In the 2005 final rule (70 FR at 

59402), for certain source categories 

(i.e., liquid fuel boilers, cement kilns, 

and lightweight aggregate kilns), we 

limited the feedrate of these same 

constituents in proportion to the heat 

input from hazardous waste. See, for 

example, § 63.1217(a)(2)(ii). We refer to 

these as hazardous waste thermal 

concentration emission limits.50 In 

today’s notice, we propose to amend 

§ 63.1207(m) to waive performance tests 

for any constituent whose thermal 

concentration in the waste feed is at or 

below the applicable thermal 

concentration emission limit. This is 

analogous to the performance test 

waiver for sources that comply with 

MTEC standards. Although performance 

tests would not be required, the thermal 

concentration emission limits would 

remain in effect during source 

operations. 

F. Averaging Method When Calculating 

12-Hour Rolling Average Thermal 

Concentration Limits 

The replacement standards for cement 

kilns and lightweight aggregate kilns 

limit the emissions of semivolatile 

metals (cadmium and lead) and low 

volatile metals (arsenic, beryllium, and 

chromium) from hazardous waste feeds 

relative to the heating value of those 

feeds. In order to monitor compliance 

with those requirements, 

§ 63.1209(n)(2)(iii) requires the source to 

establish a 12-hour rolling average 

feedrate limit for those metals on a 

thermal concentration (e.g., pounds per 

million British thermal unit) basis. The 

limits are derived from operating levels 

during the comprehensive performance 

test. 

For reasons discussed in the 1999 

final rule (64 FR at 52922), EPA has 

consistently required sources to 

calculate most of their operating 

parameter limits as the average of each 

relevant test run average recorded 

during the comprehensive performance 

test. Section 63.1209(n)(2)(iii) describes 

how to calculate the average thermal 

concentration of metals for each test 

run, but it does not explicitly describe 

how to calculate the thermal 

concentration limit. In today’s notice, 

we are proposing to amend 

§ 63.1209(n)(2)(iii) to indicate that the 

metal thermal concentration limit is the 

average of the individual test run 

averages. 

G. Calculating Rolling Averages for 

Averaging Periods in Excess of 12 Hours 

The final rule allows operators of 

liquid fuel boilers to average certain 

feed rate limits over a period of up to 

one year. This applies to the mercury 

and semivolatile feed rate limits. 

§§ 63.1209(n)(2)(v)(A)(iv) and (n)(3)(v) 

as well as §§ 63.1209(l)(1)(ii)(B)(5) and 

(l)(1)(C)(5) all describe the same method 

for calculating averages of longer than 

12 hours upon initial compliance with 

the rule. They require that you calculate 

the average of all 1-minute average 

values until you have acquired data for 

the full averaging period (i.e., up to one 

year). Thereafter, you are required to 

update this value each hour using the 

60-minute average feedrate from the 

previous hour. 

EPA recognizes that these approaches 

may needlessly complicate data 

management and could require 

increased data storage. Therefore, we are 

proposing to amend these sections of 

the regulation in two ways. The first 

change will explicitly allow you to 

calculate long-term rolling averages 

using only the 1-minute data that you 

are otherwise required to record. If you 

choose this approach, you would 

calculate long-term averages in exactly 

the same manner as all other rolling 

averages, with the value being updated 

every minute. There would be no 

requirement to switch to a different 

system after completion of the initial 

averaging period. Alternatively, you 

may still choose to use the hourly 

update option specified in the current 

regulations. If you choose this latter 

option, however, we are proposing to 

allow you to begin using hourly updates 

after completing at least 12 hours of 

monitoring using 1-minute updates. 

(The current regulation only allows 

hourly updates after completing the first 

long-term averaging period, that could 

be up to one year.) We believe that this 

will allow you to begin ‘‘normal’’

monitoring operations as soon as 

possible without any significant effect 

on accuracy. 

We wish to emphasize that the 

definition of continuous monitor 

requires that you maintain all oneminute average values in your operating 

record regardless of whether you elect 

one-minute or hourly updates to the 

rolling average. Pursuant to § 63.10(b)(1) 

of the MACT General Provisions, these 

data must be retained for a period of at 

least five years. 

H. Calculating Rolling Averages 

Most of the feed rate, emission rate, 

and operating parameter limits 

established in the HWC MACT rule are 

monitored on a rolling average basis that 

varies from hourly to annually. 

Continuously monitored parameters 

must be recorded at least once each 

minute. The rolling average is then 

calculated as the average of the oneminute values for the duration of the 

most recent averaging period. For 

example, a one-hour rolling average 

temperature value would be calculated 

by averaging the 60 most recent oneminute temperature readings, with a 

new hourly rolling average value being 

generated every minute. 

In the 1999 final rule, the longest 

permissible rolling average period was 

12 hours. However, in the 2005 final 

rule, we allowed up to annual averaging 

for those emission standards that are 

based on ‘‘normal’’ feed data. (See the 

liquid fuel boiler standards for mercury 

and semivolatile metals under 

§ 63.1217.) In recognition of the fact that 

these long-term averages would not vary 

significantly over short time periods, we 

chose to allow you to update these 

rolling averages hourly, rather than 

every minute. Our intent was to retain 

one-minute updates for averaging 

periods up to 12 hours while allowing 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52641 

51We are not proposing to revise the particulate 

matter standards in §§ 63.1203 thru 63.1205 

because affected sources are already complying 

with these standards. 

52See USEPA, ‘‘Technical Support Document for 

HWC MACT Standards, Volume III: Selection of 

MACT Standards,’’ September 2005, Appendix F, 

Table ‘‘APCD–INC–PM.’’

53For brevity, the remaining regulatory citations 

refer only to the standards for existing cement kilns. 

However, the same changes are proposed for both 

existing and new kilns. 

hourly updates for longer averaging 

periods. However, we inadvertently 

specified hourly updates for several 

parameters that are not subject to longterm (i.e., greater than 12-hour) 

averaging. This occurred for three 

parameters: the chromium feedrate in 

liquid fuel boilers burning hazardous 

waste with a heating value of 10,000 Btu 

per pound or greater under 

§ 63.1209(n)(2)(v)(B)(1)(i), the chromium 

feedrate in liquid fuel boilers burning 

hazardous waste with a heating value of 

less than 10,000 Btu per pound under 

§ 63.1209(n)(2)(v)(B)(2), and the 

chlorine thermal concentration feedrate 

limit for liquid fuel boilers burning 

hazardous waste with a heating value of 

not less than 10,000 Btu per pound 

under § 63.1209(o)(1)(ii)(A)(3). In 

today’s notice, we are proposing to 

delete the hourly update references for 

these three parameters. 

I. Timing of the Periodic Review of 

Eligibility for the Health-Based 

Compliance Alternatives for Total 

Chlorine 

If you choose to comply with the 

health-based compliance alternatives for 

total chlorine, § 63.1215(h)(2)(i) requires 

you to review your eligibility under that 

alternative at least every five years. The 

results must be submitted to the 

regulatory authority for review and 

approval. However, there is some 

ambiguity in the exact timing of that 

submission in the current regulatory 

language. 

In this action, we propose to eliminate 

the ambiguity by amending 

§ 63.1215(h)(2)(i) to indicate that the 

results of your 5-year review are due to 

the permitting authority at the time you 

submit your comprehensive 

performance test plan (as specified in 

the current rule). This will most likely 

be approximately four years (not five, as 

indicated in the current rule) after your 

last comprehensive performance test. 

J. Expressing Particulate Matter 

Standards Using the International 

System of Units (SI) 

In the final rule, we expressed the 

particulate matter standards for 

incinerators, cement kilns, and 

lightweight aggregate kilns using 

English units (gr/dscf) while expressing 

the particulate matter standards for 

liquid and solid fuel boilers using SI 

units (mg/dscm). Our preference is to 

express all particulate matter standards 

in SI units and we are proposing to 

revise the particulate matter standards 

in §§ 63.1216 through 63.1221 by 

expressing the standards in SI units.51

When making the conversion from 

English units to SI units, we are 

proposing to convert the calculated 

particulate matter results prior to the 

step in which the results were rounded 

to two significant figures. For example, 

the calculated MACT floor for existing 

incinerators was 0.0133 gr/dscf, that 

was rounded to 0.013 gr/dscf (the latter 

being the promulgated standard).52

Thus, our proposed approach would 

convert 0.0133 gr/dscf to SI units. We 

believe this approach for converting 

English to SI units more accurately 

reflects the MACT standards identified 

in the final rule because making the 

conversion to SI units after rounding the 

results (in English units) can introduce 

imprecision. In addition, we also would 

recalculate and revise as necessary the 

liquid and solid fuel boiler standards 

using the same approach (i.e., existing 

solid fuel boilers and existing liquid 

fuel boilers). The table below shows the 

results of the conversion to SI units. 

PROPOSED PARTICULATE MATTER STANDARDS EXPRESSED IN SI UNITS

Source category Type of source Promulgated 

standard 

Proposed 

standard 

in SI units 

Solid Fuel Boilers (§ 63.1216) ............................................................................................ Existing New ..... 68 mg/dscm 

34 mg/dscm 

69 mg/dscm 

34 mg/dscm 

Liquid Fuel Boilers (§ 63.1217) ........................................................................................... Existing New ..... 80 mg/dscm 

20 mg/dscm 

79 mg/dscm 

20 mg/dscm 

Incinerators (§ 63.1219) ...................................................................................................... Existing New ..... 0.013 gr/dscf 

0.0015 gr/dscf 

30 mg/dscm 

3.5 mg/dscm 

Cement Kilns (§ 63.1220) ................................................................................................... Existing New ..... 0.028 gr/dscf 

0.0023 gr/dscf 

65 mg/dscm 

5.3 mg/dscm 

Lightweight Aggregate Kilns (§ 63.1221) ............................................................................ Existing New ..... 0.025 gr/dscf 

0.0098 gr/dscf 

57 mg/dscm 

22 mg/dscm 

We acknowledge that several of the 

particulate matter standards shown in 

the table above may be revised as a 

result of the reconsideration of the 

particulate matter standard for new 

cement kilns (71 FR at 14665). If any 

particulate matter standards are revised, 

we would apply the same procedure to 

convert the new standards to SI units. 

Accordingly, we propose to revise the 

following particulate matter standards: 

§§ 63.1216(a)(7); 63.1217(a)(7); 

63.1219(a)(7) and (b)(7); 63.1220(a)(7)(i) 

and (b)(7)(i); and 63.1221(a)(7) and 

(b)(7). 

K. Mercury Standards for Cement Kilns 

In the final rule, we intended to 

establish a two-pronged approach for 

controlling mercury emissions from 

cement kilns. See preamble discussion 

at 70 FR at 59468. Step one establishes 

a maximum concentration of mercury in 

the hazardous waste feed. Step two 

allows the source to choose between 

either a traditional approach of limiting 

the total mercury feed rate and relevant 

operating parameters, or a maximum 

theoretical emission concentration 

(MTEC) approach. The MTEC is 

calculated as described in 

§ 63.1207(m)(2) except that, in this case, 

it is calculated for the hazardous waste 

feed(s) only. 

Although we believe that the 

preamble description of this approach is 

clear, the regulatory language, 

promulgated in §§ 63.1220(a)(2) and 

(b)(2), is not.53 Our intent was to require 

all affected cement kilns to comply with 

§ 63.1220(a)(2)(i). In addition, the source 

has the option of complying with either 

§ 63.1220(a)(2)(ii) or (a)(2)(iii). However, 

the current language could be 

misinterpreted to allow the source to 

comply only with § 63.1220(a)(2)(iii). 


jlentini on PROD1PC65 with PROPOSAL2
52642 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

54USEPA, ‘‘Response to Comments on April 20, 

2004 HWC MACT Proposed Rule, Volume IV: 

Permitting,’’ September 2005, Pages 16–17. 

Today, we are proposing to amend 

§ 63.1220(a)(2) to more clearly reflect 

our original intent. Conforming changes 

to the mercury monitoring requirements 

of § 63.1209(l)(1)(iii) and (iv) are also 

proposed. 

L. Facilities Operating Under RCRA 

Interim Status 

In response to the proposed rule (69 

FR at 21198), one commenter expressed 

concern that sources operating under 

Resource Conservation and Recovery 

Act (RCRA) interim status would have 

to obtain approval of the RCRA 

implementing authority before 

proceeding with facility modifications 

required to meet the MACT standards. 

The commenter noted that delays in 

gaining that approval would adversely 

affect a source’s ability to comply with 

the MACT standards on time. We 

responded to this issue in our response 

to comments document.54 However, we 

did not address it in either the preamble 

or the final rule itself. Consequently, 

this appears to be an ongoing source of 

confusion among affected sources, as 

well as some regulatory agencies. In 

order to promote consistent 

interpretation of the RCRA interim 

status requirements across all 

jurisdictions, the discussion that follows 

reiterates EPA’s long-standing position 

previously set forth in the comment 

response document. States are strongly 

encouraged to adhere to this 

interpretation in order to facilitate 

timely compliance with the HWC 

MACT replacement standards. 

At issue here is the interpretation of 

§ 270.72(a)(3), that requires sources 

operating under interim status to obtain 

approval from the regulatory authority 

for ‘‘Changes in the processes for the 

treatment, storage, or disposal of 

hazardous waste or addition of 

processes * * *’’ The term ‘‘process’’

refers to the general category of waste 

treatment, storage, or disposal (e.g., 

incinerator, cement kiln, boiler, etc.) as 

indicated on the Part A permit form 

(EPA Form 8700–23). It does not 

include air pollution control devices, 

monitoring equipment, or process 

controls, none of which are identified 

on the Part A form. Consequently, 

changes to those monitoring and control 

systems do not require approval under 

§ 270.72(a)(3). Neither would a change 

in operating conditions (e.g., an increase 

in the combustion temperature) be 

subject to § 272.72(a)(3) because 

operating conditions are also not 

included in the Part A permit form. 

We note that sources subject to the 

boiler and industrial furnace (BIF) 

requirements (40 CFR part 266, subpart 

H) under RCRA would be required to 

submit revised certifications of 

compliance when making any changes 

that could affect emissions or operating 

parameter limits. However, those 

changes do not require prior approval of 

the regulatory authority so they should 

not impede your compliance with the 

HWC MACT standards. 

VI. Revised Time Lines 

The time line labeled as Figure 1 

published in the final rule at 70 FR at 

59524, depicts an incorrect ‘‘effective’’

date for the Phase 1 Replacement 

Standards and Phase 2 Standards final 

rule. As a result, all subsequent dates on 

the time line are also incorrect. The time 

line labeled as Figure 2 published in the 

final rule at 70 FR at 59525 incorrectly 

includes the rule’s effective date, as well 

as subsequent dates based on the 

effective date. Today’s notice revises 

both time lines to reflect the correct 

dates or time frames associated with the 

compliance activities for both Phase 1 

and Phase 2 sources. In addition to 

revising the dates, we felt it would be 

helpful to include the following remarks 

for both Figures 1 and 2. 

With respect to figure 1, the time line 

is now broken into three sections to 

reflect the separate requirements (i.e., 

different time frames) negotiated for 

Phase 1 sources for the Replacement 

Standards. The first section of the time 

line, beginning with the promulgation 

date, provides compliance activities and 

dates applicable to both Phase 1 and 

Phase 2 sources. The second and third 

portions of the time line represent Phase 

1 and Phase 2 sources individually, 

beginning with the first compliance 

activity that specifies a different 

deadline; that is, the comprehensive 

performance test (CPT) plan and 

continuous monitoring system (CMS) 

performance evaluation test plan due 

date. 

Note that the dates on the time line 

generally do not apply to sources that 

elect to comply with the final standards 

early, as well as to sources that have 

received site-specific compliance date 

or performance test date extensions. 

Also, as a result of expanding the time 

line into three sections from the 

previous two, we have removed the note 

at the bottom of the page, identified by 

an asterisk that discussed Title V 

requirements, to provide better visual 

clarity. Rather, we have chosen to 

reiterate it here in this notice. Therefore, 

for the activity identified as Include 

NOC in Title V Permit, we note that 

because of the variability of the Title V 

program requirements, most Title V 

permit actions (application due dates, 

revisions, reopenings, etc.) are not 

included in this time line. Please refer 

to the particular source’s current Title V 

permit status, Title V regulations, and 

individual permitting authority’s 

requirements. 

Finally, the compliance activity dates 

that are tied to when sources commence 

their performance test are identified 

with an asterisk. We characterize these 

dates as ‘‘no later than dates.’’ This 

assumes that the source commences 

testing on the last allowable day. All 

compliance activities marked with an 

asterisk would therefore shift back by 

the number of days the source 

commences testing prior to the last 

allowable day. For example, if a Phase 

2 source commences testing on April 4, 

2009 (versus the 14th, which is the last 

allowable day without an extension), 

then it must submit its CPT plan and 

CMS performance evaluation test plan 

on April 4, 2008. Also, that source must 

complete its CPT by June 4, 2009 and 

submit its notification of compliance no 

later than September 4, 2009. 

In regard to Figure 2, we have 

removed the dates from the time line, 

since they would not be representative 

of a new unit’s compliance deadlines. A 

new unit’s compliance activity 

deadlines are based on when it begins 

operations, which is the unit’s 

compliance date and the date it must 

place a Documentation of Compliance 

in the operating record. Thus, the 

effective date of the rule is not 

applicable to new units and 

consequently, the Notice of Intent to 

Comply (NIC) provisions in 

§§ 63.1210(b)(3) and (c)(1) that specify a 

deadline based on the effective date of 

the rule, also would not apply. Since we 

have always intended that new units 

follow the same NIC procedures as 

existing units, we have revised 

§§ 63.1210(b)(3) and (c)(1) to also 

include the period of time between the 

NIC activities so that they correctly 

apply to both existing and new units. 

(See Section VII.C (Clarifications to the 

NIC Provisions for New Units) below for 

additional discussion.) The time line 

now reflects the period of time that 

elapses between public review of the 

draft NIC and CPT plan, the NIC public 

meeting, and the final NIC submission 

deadline. Aside from the corrections 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52643 

made to this time line, we would like to 

remind readers that the preamble to the 

final rule contains a detailed discussion 

of the compliance activities listed on 

Figure 2. See 70 FR at 59522–59523. 

BILLING CODE 6560–50–P 


jlentini on PROD1PC65 with PROPOSAL2EP06SE06.000</GPH>
52644 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

BILLING CODE 6560–50–C 


jlentini on PROD1PC65 with PROPOSAL2EP06SE06.001</GPH>
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52645 

VII. Technical Corrections and Other 

Clarification 

We identified minor drafting errors 

and inadvertent omissions after 

promulgation of the HWC NESHAP. In 

this section we are providing advance 

notice of technical corrections that we 

plan to promulgate when we take final 

action on this proposed rule. In 

addition, we provide clarification of the 

applicability of Title V permit 

requirements to Phase 2 area sources. 

A. What Typographical Errors Would 

We Correct? 

We would revise § 63.1206(a)(2)(ii)(A) 

to correct the cut-off date after which a 

new or reconstructed source is subject 

to the new source emission standards. 

Currently, this paragraph incorrectly 

specifies October 12, 2005, which is the 

date the final rule was published, 

instead of April 20, 2004, which is the 

date the proposed rule was published. 

See proposed revision to 

§ 63.1206(a)(2)(ii)(A). 

We also would correct the paragraph 

heading to § 63.1206(a)(2) that currently 

refers to ‘‘hydrogen chloride production 

furnaces’’ instead of ‘‘hydrochloric acid 

production furnaces.’’ See proposed 

revision to § 63.1206(a)(2). In addition, 

we would correct a provision that 

inadvertently uses incorrect terminology 

when referring to emissions of 

‘‘hydrogen chloride and chlorine gas.’’

See proposed revision § 63.1206(b)(16). 

We also would revise § 63.1210(b) to 

clarify that the public meeting and 

notice requirements of the notice of 

intent to comply (NIC) provisions under 

paragraph (c) of this section do not 

apply to sources that have already 

submitted their NIC. We would also 

revise § 63.1210(b) to make clear that 

the NIC certification requirements under 

§ 63.1212(a) likewise do not apply to 

sources that have already submitted 

their NIC. See proposed revision to 

§ 63.1210(b). 

We also would correct the formula 

under § 63.1215(b)(2) that is used to 

calculate the annual average toxicityweighted HCl-equivalent emission rate 

for each hazardous waste combustor 

under the health-based compliance 

alternatives for total chlorine. The 

formula uses incorrectly the term ERtw

instead of ERLTtw for the annual average 

HCl toxicity-weighted emission rate 

considering long-term exposures. See 

proposed revision to § 63.1215(b)(2). 

We also would correct several other 

typographical errors in § 63.1215. First, 

paragraph (b)(6)(ii)(C) would be revised 

by replacing the word ‘‘the se’’ with 

‘‘these’’ and the term ‘‘Method 26/26a’’

with ‘‘Method 26/26A.’’ Additionally, 

paragraph (f)(5)(ii)(A) would be revised 

by replacing the word ‘‘you’’ with 

‘‘your.’’ Finally, we would revise 

paragraphs (a)(2) and (b)(3) so that the 

term ‘‘aREL’’ (acute reference exposure 

level) is used consistently throughout 

§ 63.1215. See proposed revisions to 

§§ 63.1215(a)(2), (b)(3), (b)(6)(ii)(C) and 

(f)(5)(ii)(A). 

We also would revise the total 

chlorine standards for existing and new 

liquid fuel boilers that burn hazardous 

waste with an as-fired heating value of 

10,000 Btu/lb or greater by expressing 

the emission standard with two 

significant figures. Currently, the total 

chlorine standards under 

§§ 63.1217(a)(6)(ii) and (b)(6)(ii) are 

expressed with three significant figures. 

This is inconsistent with how emission 

standards are expressed in the HWC 

NESHAP (see § 63.1217(d) and 64 FR at 

52848). Therefore, we would revise the 

total chlorine standard from 5.08E–02 to 

5.1E–02 lb combined emissions of 

hydrogen chloride and chlorine gas 

attributable to the hazardous waste per 

million Btu heat input from the 

hazardous waste. See proposed 

revisions to § 63.1217(a)(6)(ii) and 

(b)(6)(ii). 

B. What Citations Would We Correct? 

We would revise an incorrect citation 

in § 63.1206(b)(14)(iv) that refers 

inadvertently to paragraphs (e)(2) and 

(e)(3) instead of (b)(14)(ii) and (iii) in 

§ 63.1206. See proposed revision to 

§ 63.1206(b)(14)(iv). 

Paragraphs (g)(2)(i) and (ii) under 

§ 63.1209 refer inadvertently to 

paragraph (g)(2)(iv) instead of (g)(2)(v). 

We would revise these incorrect 

citations. See proposed revisions to 

§§ 63.1209(g)(2)(i) and (ii). 

We also would revise an incorrect 

citation in § 63.1209(n)(2)(vii) that refers 

inadvertently to paragraphs (l)(1)(i) 

through (iii) instead of (n)(2)(ii) through 

(vi). See proposed revision to 

§ 63.1209(n)(2)(vii). 

We also would revise an incorrect 

citation in § 63.1215(a)(1)(i). This 

paragraph refers inadvertently to 

paragraph (b)(4) instead of (b)(7) of 

§ 63.1215. See proposed revision to 

§ 63.1215(a)(1)(i). 

In the final rule, we amended 

§ 264.340(b) by adding a new paragraph 

(b)(5) stating that the particulate matter 

standard under § 264.343(c) remains in 

effect for incinerators that elect to 

comply with the alternative to the 

particulate matter standards under 

§§ 63.1206(b)(14) and 63.1219(e). 

However, the addition of paragraph 

(b)(5) included a requirement that was 

redundant to existing requirements 

under paragraph (b)(3) of that same 

section. We would remove this 

redundancy by combining the 

requirements of paragraphs (b)(3) and 

(b)(5) into a revised paragraph (b)(3). 

See proposed revision to § 264.340(b). 

We also would revise an incorrect 

citation in § 266.100(b)(3) that contains 

two subparagraphs designated as 

(b)(3)(ii). This revision would 

redesignate the second paragraph 

(b)(3)(ii) as (b)(3)(iii). See proposed 

revision to § 266.100(b)(3). 

C. Corrections to the NIC Provisions for 

New Units 

In the final rule, we established 

additional Notice of Intent to Comply 

(NIC) provisions for new units to ensure 

that the public would be provided 

opportunities to participate early in the 

regulatory development process. This 

included providing the public with 

combustor-specific information 

equivalent to what would be required 

via the RCRA permitting process for 

hazardous waste combustors. Recall that 

we no longer require new units to 

develop trial burn plans and provide 

suggested conditions for the various 

phases of operation in their permit 

applications or permit modification 

requests. See 70 FR at 59520. The NIC 

provisions for new units, located under 

§§ 63.1212(b) and (c), were developed 

with the above in mind. 

While revising the time line for new 

units (see Figure 2 shown above in 

Section VI (Revised Time Lines)) it 

became apparent that we overlooked the 

fact that the final rule’s effective date 

has no bearing on new units. A new 

unit’s compliance activity deadlines are 

based on when it begins operations, 

which is the unit’s compliance date and 

the date it must place a Documentation 

of Compliance in the operating record. 

Therefore, the NIC deadlines are only 

based upon each individual NIC 

compliance activity. For example, the 

clock will begin when the new unit 

provides the draft NIC and draft CPT 

plan to the public for review. Once the 

draft NIC and draft CPT plan are made 

available for public review, the 

combined public meeting must occur 30 

days later, followed by the final NIC 

submission an additional 60 days later. 

Since the public meetings for the NIC 

and the RCRA pre-application or 

modification request must occur 

simultaneously, we anticipate that the 

new unit will plan accordingly and 

work with its permitting authorities to 

determine the most suitable time to 

begin the NIC compliance process. 

Although the time line for new units 

has been corrected to remove the 

effective date and the dates listed for the 

NIC activities, the NIC regulatory 


jlentini on PROD1PC65 with PROPOSAL2
52646 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

language in § 63.1210(b)(3) and (c)(1) 

must be amended to also account for 

new units. While the additional NIC 

provisions for new units are located in 

§ 63.1212(b) and (c), they contain 

several references to the core NIC 

provisions in § 63.1210(b) and (c). 

Obviously, we have always intended 

that new units follow the same NIC 

procedures as existing units, in 

additionto the supplemental 

requirements for new units. In 

developing the additional requirements 

under § 63.1212, we inadvertently 

neglected to revise § 63.1210(b)(3) and 

(c)(1) to include a specific number of 

days between NIC compliance activities 

in addition to the effective date. 

Therefore, the NIC provisions under 

§§ 63.1210(b)(3) and (c)(1) would be 

revised to correctly apply to both 

existing and new units. 

Lastly, upon review of the regulations 

at § 63.1212, we have discovered that 

paragraph (b)(4) should have included 

references to § 63.1210(c)(1) and (c)(2). 

As discussed above, it has always been 

our intent that new units follow the 

same NIC procedures as existing units. 

However, without the proper references 

in § 63.1212(b)(4), the requirements of 

§ 63.1210(c)(1) and (c)(2) could be read 

to not apply to new units. Section 

63.1212(b)(4) would be revised to clarify 

that the core NIC provisions continue to 

be applicable. Also, § 63.1212 (b)(1) 

would be revised to remove ‘‘according 

to’’ and ‘‘per’’ and add the words 

‘‘pursuant to’’ so that it is consistent 

with other paragraphs in (b); and 

§ 63.1212(b)(3) would be revised to 

correct a typographical error. 

D. Clarification of the Applicability of 

Title V Permit Requirements to Phase 2 

Area Sources 

In the preamble to the final rule, we 

discuss the applicability of Title V 

permit requirements to Phase 2 area 

sources (see 70 FR at 59523). For 

example, we note that in the 2004 

proposal we stated that we were not 

making a positive area source finding 

for Phase 2 area sources as we have for 

Phase 1 area sources (69 FR at 21212 

and 21325). Regardless of this, however, 

we explain that Phase 2 area sources are 

still subject to the requirement to obtain 

a Title V permit because they are subject 

to section 112 standards. See section 

502(a) of the CAA and 40 CFR 70.3(b)(2) 

and 71.3(b)(2). 

On this same page in the final rule 

preamble, we further explain that, in 

accordance with 40 CFR 70.3(c) and 

70.5(c)(3), a Title V permit application 

needs to include emissions information 

relative to all regulated air pollutants 

that are emitted from the subject units, 

not just the specific HAP pollutants 

regulated by the MACT standards. 

However, we then say, ‘‘Although, the 

permit itself would contain standards 

only for the HAP subject to MACT 

standards (the section 112(c)(6) HAP).’’

Initially this phrase was part of a longer 

sentence in a draft version of the 

preamble and was inadvertently 

incorporated into the final preamble. 

While the intent of the sentence was to 

note that a source cannot be required to 

control more HAP than is regulated by 

the relevant MACT standards, this 

sentence is not needed given that Title 

V permits cannot modify applicable 

requirements to address additional 

HAP. Moreover, this phrase is confusing 

given that all applicable requirements 

that apply to the subject area source 

units, not just the relevant MACT 

standard requirements, are required to 

be included in the permits for these 

units. Lastly, this phrase is confusing 

because it was included at a point in the 

discussion where permit applications, 

not permits, were being discussed. 

Therefore, in this action, we reiterate 

that a Title V permit application needs 

to include emissions information 

relative to all regulated air pollutants 

that are emitted from the units subject 

to the MACT standards, not just the 

specific HAP pollutants regulated by the 

MACT standards. Additionally, all 

MACT standards that apply to the 

subject units (e.g., subpart EEE for 

hazardous waste burning boilers and 

subpart DDDDD for non-hazardous 

waste burning boilers, etc.), as well as 

all other applicable requirements that 

apply to these subject units, e.g., State 

Implementation Plan requirements, are 

required to be included in the Title V 

permits for Phase 2 area sources. 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory 

action.’’ Pursuant to the terms of 

Executive Order 12866, it has been 

determined that today’s proposed rule 

constitutes a ‘‘significant regulatory 

action’’ because this action raises novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

This proposed rule is not considered 

to be an economically significant action 

because the total social costs for this 

proposed rule are significantly below 

the $100 million threshold established 

for economically significant actions. 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. because there 

is no additional burden on the industry 

as a result of the proposed rule, and the 

ICR has not been revised. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

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 impact 

of today’s proposed rule on small 

entities, a small entity is defined as: (1) 

A small business as defined by the 

Small Business Administrations’

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; and (3) 

a small organization that is any not-forprofit enterprise which is independently 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52647 

owned and operated and is not 

dominant in the field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. EPA has determined that none 

of the small entities will experience a 

significant economic impact because the 

notice imposes no additional regulatory 

requirements on owners or operators of 

affected sources. We continue to be 

interested in the potential impacts of the 

proposed rule on small entities and 

welcome comments on issues related to 

such impacts. 

D. Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that today’s 

notice of reconsideration does not 

contain a Federal mandate that may 

result in expenditures of $100 million or 

more for State, local, or tribal 

governments, in the aggregate, or to the 

private sector in any one year. Although 

our best estimate of total social costs of 

the final rule was $22.6 million per 

year, today’s notice does not add new 

requirements that would increase this 

cost. See 70 FR at 59532. Thus, today’s 

proposed rule is not subject to sections 

202 and 205 of the UMRA. EPA has also 

determined that the notice of 

reconsideration contains no regulatory 

requirements that might significantly or 

uniquely affect small governments 

because it contains no regulatory 

requirements that apply to such 

governments or impose obligations 

upon them. Thus, today’s proposed rule 

is not subject to the requirements of 

section 203. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

Today’s proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This rule, as 

proposed, is not projected to result in 

economic impacts to privately owned 

hazardous waste combustion facilities. 

Marginal administrative burden impacts 

may occur at selected States and/or EPA 

regional offices if these entities 

experience increased administrative 

needs or information requests. Thus, 

Executive Order 13132 does not apply 

to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This notice of 

reconsideration does not have tribal 

implications, as specified in Executive 

Order 13175. No affected facilities are 

owned or operated by Indian tribal 

governments. Thus, Executive Order 

13175 does not apply to this notice of 

reconsideration. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997) 

applies to any rule that: (1) is 

determined to be ‘‘economically 

significant’’ as defined under E.O. 

12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

Today’s proposed rule is not subject 

to E.O. 13045 because it is not 

economically significant as defined 

under point one of the Order, and 

because the Agency does not have 

reason to believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 Fed Reg 28355 

(May 22, 2001) because it is not likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy. Further, we have concluded that 

this rule is not likely to have any 

adverse energy effects. 

I. National Technology Transfer and 

Advancement Act 

As described in the October 2005 final 

rule, 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 EPA to use voluntary consensus 

standards in its regulatory activities 


jlentini on PROD1PC65 with PROPOSAL2
52648 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

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 EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. During 

the development of the final rule, EPA 

searched for voluntary consensus 

standards that might be applicable. The 

search identified the following 

consensus standards that were 

considered practical alternatives to the 

specified EPA test methods: (1) 

American Society for Testing and 

Materials (ASTM) D6735–01, ‘‘Standard 

Test Method for Measurement of 

Gaseous Chlorides and Fluorides from 

Mineral Calcining Exhaust Sources—

Impinger Method,’’ and (2) American 

Society of Mechanical Engineers 

(ASME) standard QHO–1–2004, 

‘‘Standard for the Qualification and 

Certification of Hazardous Waste 

Incineration Operators.’’ Today’s notice 

of reconsideration does not propose the 

use of any additional technical 

standards beyond those cited in the 

final rule. Therefore, EPA is not 

considering the use of any additional 

voluntary consensus standards for this 

notice. 

List of Subjects 

40 CFR Part 63 

Environmental protection, Air 

pollution control, Hazardous 

substances, Reporting and 

recordkeeping requirements. 

40 CFR Part 264 

Environmental protection, Air 

pollution control, Hazardous waste, 

Insurance, Packaging and containers, 

Reporting and recordkeeping 

requirements, Security measures, Surety 

bonds. 

40 CFR Part 266 

Environmental protection, Energy, 

Hazardous waste, Recycling, Reporting 

and recordkeeping requirements. 

Dated: August 24, 2006. 

Stephen L. Johnson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 63—NATIONAL EMISSIONS 

STANDARDS FOR HAZARDOUS AIR 

POLLUTANTS FOR SOURCE 

CATEGORIES 

1. The authority citation for part 63 

continues to read as follows: 

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

2. Section 63.1203 is amended by 

adding paragraph (e) to read as follows: 

§ 63.1203 What are the standards for 

hazardous waste incinerators that are 

effective until compliance with the 

standards under § 63.1219? 

* * * * * 

(e) The provisions of this section no 

longer apply after any of the following 

dates, whichever occurs first: 

(1) The date that your source begins 

to comply with § 63.1219 by placing a 

Documentation of Compliance in the 

operating record pursuant to 

§ 63.1211(c); 

(2) The date that your source begins 

to comply with § 63.1219 by submitting 

a Notification of Compliance pursuant 

to § 63.1210(b); or 

(3) The date for your source to comply 

with § 63.1219 pursuant to § 63.1206 

and any extensions granted thereunder. 

3. Section 63.1204 is amended by 

adding paragraph (i) to read as follows: 

§ 63.1204 What are the standards for 

hazardous waste burning cement kilns that 

are effective until compliance with the 

standards under § 63.1220? 

* * * * * 

(i) The provisions of this section no 

longer apply after any of the following 

dates, whichever occurs first: 

(1) The date that your source begins 

to comply with § 63.1220 by placing a 

Documentation of Compliance in the 

operating record pursuant to 

§ 63.1211(c); 

(2) The date that your source begins 

to comply with § 63.1220 by submitting 

a Notification of Compliance pursuant 

to § 63.1210(b); or 

(3) The date for your source to comply 

with § 63.1220 pursuant to § 63.1206 

and any extensions granted thereunder. 

4. Section 63.1205 is amended by 

adding paragraph (e) to read as follows: 

§ 63.1205 What are the standards for 

hazardous waste burning lightweight 

aggregate kilns that are effective until 

compliance with the standards under 

§ 63.1221? 

* * * * * 

(e) The provisions of this section no 

longer apply after any of the following 

dates, whichever occurs first: 

(1) The date that your source begins 

to comply with § 63.1221 by placing a 

Documentation of Compliance in the 

operating record pursuant to 

§ 63.1211(c); 

(2) The date that your source begins 

to comply with § 63.1221 by submitting 

a Notification of Compliance pursuant 

to § 63.1210(b); or 

(3) The date for your source to comply 

with § 63.1221 pursuant to § 63.1206 

and any extensions granted thereunder. 

5. Section 63.1206 is amended as 

follows: 

a. By revising paragraph (a)(2) 

paragraph heading and the first sentence 

of paragraph (a)(2)(ii)(A). 

b. By revising paragraphs (b)(14)(iv) 

and (b)(16) introductory text. 

c. By revising paragraph (c)(9) 

introductory text. 

§ 63.1206 When and how must you comply 

with the standards and operating 

requirements? 

(a) * * * 

(2) Compliance date for solid fuel 

boilers, liquid fuel boilers, and 

hydrochloric acid production furnaces 

that burn hazardous waste for standards 

under §§ 63.1216, 63.1217, and 63.1218. 

* * * 

* * * * * 

(ii) * * * (A) If you commenced 

construction or reconstruction of your 

hazardous waste combustor after April 

20, 2004, you must comply with the 

new source emission standards of this 

subpart by the later of October 12, 2005, 

or the date the source starts operations, 

except as provided by paragraph 

(a)(2)(ii)(B) of this section. * * * 

* * * * * 

(b) * * * 

(14) * * * 

(iv) Operating limits. Semivolatile and 

low volatile metal operating parameter 

limits must be established to ensure 

compliance with the alternative 

emission limitations described in 

paragraphs (b)(14)(ii) and (iii) of this 

section pursuant to § 63.1209(n), except 

that semivolatile metal feedrate limits 

apply to lead, cadmium, and selenium, 

combined, and low volatile metal 

feedrate limits apply to arsenic, 

beryllium, chromium, antimony, cobalt, 

manganese, and nickel, combined. 

* * * * * 

(16) Compliance with subcategory 

standards for liquid fuel boilers. You 

must comply with the mercury, 

semivolatile metals, low volatile metals, 

and hydrogen chloride and chlorine gas 

standards for liquid fuel boilers under 

§ 63.1217 as follows: 

(c) * * * 

(9) Particulate matter detection 

system requirements. If your combustor 

is equipped with an electrostatic 

precipitator or ionizing wet scrubber 

and you elect not to establish under 

§ 63.1209(m)(1)(iv) site-specific control 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52649 

device operating parameter limits that 

are linked to the automatic waste feed 

cutoff system under paragraph (c)(3) of 

this section, or your combustor is 

equipped with a fabric filter and you 

elect to use a particulate matter 

detection system pursuant to paragraph 

(c)(8)(i)(B) of this section, you must 

continuously operate a particulate 

matter detection system that meets the 

specifications and requirements of 

paragraph (c)(9)(i) through (iii) of this 

section and you must comply with the 

corrective measures and notification 

requirements of paragraphs (c)(9)(iv) 

through (v) of this section. 

* * * * * 

6. Section 63.1207 is amended as 

follows: 

a. By adding paragraph (b)(3)(vi). 

b. By revising paragraphs (d)(1), 

(d)(2), and (d)(4). 

c. By revising the first sentence of 

paragraphs (g)(2)(i) and (g)(2)(ii). 

d. By revising paragraph (m). 

§ 63.1207 What are the performance 

testing requirements? 

* * * * * 

(b) * * * 

(3) * * * 

(vi) Sources that are required to 

perform the one-time dioxin/furan test 

pursuant to paragraph (b)(3) of this 

section are not required to perform 

confirmatory performance tests. 

* * * * * 

(d) * * * 

(1) Comprehensive performance 

testing. Except as otherwise specified in 

paragraph (d)(4) of this section, you 

must commence testing no later than 61 

months after the date of commencing 

the previous comprehensive 

performance test used to show 

compliance with §§ 63.1216, 63.1217, 

63.1218, 63.1219, 63.1220, or 63.1221. If 

you submit data in lieu of the initial 

performance test, you must commence 

the subsequent comprehensive 

performance test within 61 months of 

commencing the test used to provide the 

data in lieu of the initial performance 

test. 

(2) Confirmatory performance testing. 

Except as otherwise specified in 

paragraph (d)(4) of this section, you 

must commence confirmatory 

performance testing no later than 31 

months after the date of commencing 

the previous comprehensive 

performance test used to show 

compliance with §§ 63.1216, 63.1217, 

63.1218, 63.1219, 63.1220, or 63.1221. If 

you submit data in lieu of the initial 

performance test, you must commence 

the initial confirmatory performance test 

within 31 months of the date six months 

after the compliance date. To ensure 

that the confirmatory test is conducted 

approximately midway between 

comprehensive performance tests, the 

Administrator will not approve a test 

plan that schedules testing within 18 

months of commencing the previous 

comprehensive performance test. 

* * * * * 

(4) Applicable testing requirements 

under the interim standards. (i) Waiver 

of periodic comprehensive performance 

tests. Except as provided by paragraph 

(c)(2) of this section, you must conduct 

only an initial comprehensive 

performance test under the interim 

standards (i.e., the standards published 

in the Federal Register on February 13, 

2002); all subsequent comprehensive 

performance testing requirements are 

waived under the interim standards. 

The provisions in the introductory text 

to paragraph (d) and in paragraph (d)(1) 

of this section apply only to tests used 

to demonstrate compliance with the 

permanent replacement standards 

promulgated on or after October 12, 

2005. 

(ii) Waiver of confirmatory 

performance tests. You are not required 

to conduct a confirmatory test under the 

interim standards (i.e., the standards 

published in the Federal Register on 

February 13, 2002). The confirmatory 

testing requirements in the introductory 

text to paragraph (d) and in paragraph 

(d)(2) of this section apply only after 

you have demonstrated compliance 

with the permanent replacement 

standards promulgated on or after 

October 12, 2005. 

* * * * * 

(g) * * * 

(2) * * * 

(i) Carbon monoxide (or hydrocarbon) 

CEMS emissions levels must be within 

the range of the average value to the 

maximum value allowed, except as 

provided by paragraph (g)(2)(v) of this 

section. * * * 

(ii) Each operating limit (specified in 

§ 63.1209) established to maintain 

compliance with the dioxin/furan 

emission standard must be held within 

the range of the average value over the 

previous 12 months and the maximum 

or minimum, as appropriate, that is 

allowed, except as provided by 

paragraph (g)(2)(v) of this section. * * * 

* * * * * 

(m) Waiver of performance test. You 

are not required to conduct performance 

tests to document compliance with the 

mercury, semivolatile metals, low 

volatile metals, or hydrogen chloride/ 

chlorine gas emission standards under 

the conditions specified in paragraphs 

(m)(1) or (m)(2) of this section. The 

waiver provisions of this paragraph 

apply in addition to the provisions of 

§ 63.7(h). 

(1) Emission standards based on 

exhaust gas flow rate. (i) You are 

deemed to be in compliance with an 

emission standard based on the 

volumetric flow rate of exhaust gas (i.e. 

μg/dscm or ppmv) if the twelve-hour 

rolling average maximum theoretical 

emission concentration (MTEC) 

determined as specified below does not 

exceed the emission standard: 

(A) Determine the feedrate of 

mercury, semivolatile metals, low 

volatile metals, or total chlorine and 

chloride from all feedstreams; 

(B) Determine the stack gas flowrate; 

and 

(C) Calculate a MTEC for each 

standard assuming all mercury, 

semivolatile metals, low volatile metals, 

or total chlorine (organic and inorganic) 

from all feedstreams is emitted; 

(ii) To document compliance with 

this provision, you must: 

(A) Monitor and record the feedrate of 

mercury, semivolatile metals, low 

volatile metals, and total chlorine and 

chloride from all feedstreams according 

to § 63.1209(c); 

(B) Monitor with a CMS and record in 

the operating record the gas flowrate 

(either directly or by monitoring a 

surrogate parameter that you have 

correlated to gas flowrate); 

(C) Continuously calculate and record 

in the operating record the MTEC under 

the procedures of paragraph (m)(1)(i) of 

this section; and 

(D) Interlock the MTEC calculated in 

paragraph (m)(1)(i)(C) of this section to 

the AWFCO system to stop hazardous 

waste burning when the MTEC exceeds 

the emission standard. 

(iii) In lieu of the requirement in 

paragraphs (m)(1)(ii)(C) and (D) of this 

section, you may: 

(A) Identify in the Notification of 

Compliance a minimum gas flowrate 

limit and a maximum feedrate limit of 

mercury, semivolatile metals, low 

volatile metals, and/or total chlorine 

and chloride from all feedstreams that 

ensures the MTEC as calculated in 

paragraph (m)(1)(i)(C) of this section is 

below the applicable emission standard; 

and 

(B) Interlock the minimum gas 

flowrate limit and maximum feedrate 

limit of paragraph (m)(1)(iii)(A) of this 

section to the AWFCO system to stop 

hazardous waste burning when the gas 

flowrate or mercury, semivolatile 

metals, low volatile metals, and/or total 

chlorine and chloride feedrate exceeds 

the limits of paragraph (m)(1)(iii)(A) of 

this section. 

(2) Emission standards based on 

hazardous waste thermal concentration. 


jlentini on PROD1PC65 with PROPOSAL2
52650 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

(i) You are deemed to be in compliance 

with an emission standard specified on 

a hazardous waste thermal 

concentration basis (i.e., pounds emitted 

per million Btu of heat input) if the HAP 

thermal concentration in the waste feed 

does not exceed the allowable HAP 

thermal concentration emission rate. 

(ii) To document compliance with 

this provision, you must: 

(A) Monitor and record the feedrate of 

mercury, semivolatile metals, low 

volatile metals, and total chlorine and 

chloride from all hazardous waste 

feedstreams in accordance with 

§ 63.1209(c); 

(B) Determine and record the higher 

heating value of each hazardous waste 

feed; 

(C) Continuously calculate and record 

the thermal feed rate of all hazardous 

waste feedstreams by summing the 

products of each hazardous waste feed 

rate multiplied by the higher heating 

value of that hazardous waste; 

(D) Continuously calculate and record 

the total HAP thermal feed 

concentration for each constituent by 

dividing the HAP feedrate determined 

in paragraph (m)(2)(ii)(A) of this section 

by the thermal feed rate determined in 

paragraph (m)(2)(ii)(C) of this section for 

all hazardous waste feedstreams; 

(E) Interlock the HAP thermal feed 

concentration for each constituent with 

the AWFCO to stop hazardous waste 

feed when the thermal feed 

concentration exceeds the applicable 

thermal emission standard. 

(3) When you determine the feedrate 

of mercury, semivolatile metals, low 

volatile metals, or total chlorine and 

chloride for purposes of this provision, 

except as provided by paragraph (m)(4) 

of this section, you must assume that 

the analyte is present at the full 

detection limit when the feedstream 

analysis determines that the analyte is 

not detected is the feedstream. 

(4) Owners and operators of 

hazardous waste burning cement kilns 

and lightweight aggregate kilns may 

assume that mercury is present in raw 

material at half the detection limit when 

the raw material feedstream analysis 

determines that mercury is not detected. 

(5) You must state in the site-specific 

test plan that you submit for review and 

approval under paragraph (e) of this 

section that you intend to comply with 

the provisions of this paragraph. You 

must include in the test plan 

documentation that any surrogate that is 

proposed for gas flowrate adequately 

correlates with the gas flowrate. 

7. Section 63.1209 is amended as 

follows: 

a. By revising paragraphs (l)(1)(iii)(B), 

(l)(1)(iii)(C) introductory text, 

(l)(1)(iii)(D)(1), and (l)(1)(iii)(D)(2). 

b. By revising paragraphs 

(n)(2)(iii)(A), (n)(2)(v)(A)(2)(iv), 

(n)(2)(v)(B)(1)(i), (n)(2)(v)(B)(1)(ii), 

(n)(2)(v)(B)(2), and the first sentence of 

paragraph (n)(2)(vii) introductory text. 

c. By revising paragraph 

(o)(1)(ii)(A)(3). 

§ 63.1209 What are the monitoring 

requirements? 

* * * * * 

(l) * * * 

(1) * * * 

(iii) * * * 

(B) When complying with the 

emission standards under §§ 63.1204 

and 63.1220(a)(2)(ii)(A) and (b)(2)(ii)(A), 

you must establish a 12-hour rolling 

average limit for the feedrate of mercury 

in all feedstreams as the average of the 

test run averages; 

(C) Except as provided by paragraph 

(l)(1)(iii)(D) of this section, when 

complying with the hazardous waste 

maximum theoretical emission 

concentration (MTEC) under 

§ 63.1220(a)(2)(ii)(B) and (b)(2)(ii)(B), 

you must: 

* * * * * 

(D) * * * 

(1) Identify in the Notification of 

Compliance a minimum gas flowrate 

limit and a maximum feedrate limit of 

mercury from all hazardous waste 

feedstreams that ensures the MTEC 

calculated in paragraph (l)(1)(iii)(C)(4) 

of this section is below the operating 

requirement under paragraphs 

§§ 63.1220(a)(2)(ii)(B) and (b)(2)(ii)(B); 

and 

(2) Initiate an automatic waste feed 

cutoff that immediately and 

automatically cuts off the hazardous 

waste feed when either the gas flowrate 

or mercury feedrate exceeds the limits 

identified in paragraph (l)(1)(iii)(D)(1) of 

this section. 

* * * * * 

(n) * * * 

(2) * * * 

(iii) * * * (A) When complying with 

the emission standards under 

§ 63.1220(a)(3)(i), (a)(4)(i), (b)(3)(i), and 

(b)(4)(i), you must establish 12-hour 

rolling average feedrate limits for 

semivolatile and low volatile metals as 

the thermal concentration of 

semivolatile metals or low volatile 

metals in all hazardous waste 

feedstreams. You must calculate 

hazardous waste thermal concentrations 

for semivolatile metals and low volatile 

metals for each run as the total mass 

feedrate of semivolatile metals or low 

volatile metals for all hazardous waste 

feedstreams divided by the total heat 

input rate for all hazardous waste 

feedstreams. The 12-hour rolling 

average feedrate limits for semivolatile 

metals and low volatile metals are the 

average of the test run averages, 

calculated on a thermal concentration 

basis, for all hazardous waste feeds. 

* * * * * 

(v) * * * 

(A) * * * 

(2) * * * 

(iv) If you select an averaging period 

for the feedrate limit that is greater than 

a 12-hour rolling average, you must 

calculate the initial rolling average as 

though you had selected a 12-hour 

rolling average, as provided by 

paragraph (b)(5)(i) of this section. 

Thereafter, you must calculate rolling 

averages using either one-minute or onehour updates. Hourly updates shall be 

calculated using the average of the oneminute average data for the preceding 

hour. For the period beginning with 

initial operation under this standard 

until the source has operated for the full 

averaging period that you select, the 

average feedrate shall be based only on 

actual operation under this standard. 

* * * * * 

(B) * * * 

(1) * * * 

(i) The 12-hour rolling average 

feedrate limit is a hazardous waste 

thermal concentration limit expressed 

as pounds of chromium in all hazardous 

waste feedstreams per million Btu of 

hazardous waste fed to the boiler. You 

must establish the 12-hour rolling 

average feedrate limit as the average of 

the test run averages. 

(ii) You must comply with the 

hazardous waste chromium thermal 

concentration limit by determining the 

feedrate of chromium in all hazardous 

waste feedstreams (lb/hr) and the 

hazardous waste thermal feedrate 

(MMBtu/hr) at least once each minute as 

[hazardous waste chromium feedrate 

(lb/hr)/hazardous waste thermal 

feedrate (MMBtu/hr)]. 

(2) Boilers that feed hazardous waste 

with a heating value less than 10,000 

Btu/lb. You must establish a 12-hour 

rolling average limit for the total 

feedrate (lb/hr) of chromium in all 

feedstreams as the average of the test 

run averages. 

* * * * * 

(vii) Extrapolation of feedrate levels. 

In lieu of establishing feedrate limits as 

specified in paragraphs (n)(2)(ii) 

through (vi) of this section, you may 

request as part of the performance test 

plan under §§ 63.7(b) and (c) and 

§§ 63.1207(e) and (f) to use the 

semivolatile metal and low volatile 

metal feedrates and associated emission 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52651 

rates during the comprehensive 

performance test to extrapolate to higher 

allowable feedrate limits and emission 

rates. * * * 

* * * * * 

(o) * * * 

(1) * * * 

(ii) * * * 

(A) * * * 

(3) You must comply with the 

feedrate limit by determining the mass 

feedrate of hazardous waste feedstreams 

(lb/hr) at least once a minute and by 

knowing the chlorine content (organic 

and inorganic, lb of chlorine/lb of 

hazardous waste) and heating value 

(Btu/lb) of hazardous waste feedstreams 

at all times to calculate a 1-minute 

average feedrate measurement as 

[hazardous waste chlorine content (lb of 

chlorine/lb of hazardous waste feed)/ 

hazardous waste heating value (Btu/lb 

of hazardous waste)]. You must update 

the rolling average feedrate each hour 

with this 60-minute average feedrate 

measurement. 

* * * * * 

8. Section 63.1210 is amended by 

revising paragraphs (b) introductory 

text, (b)(3), and (c)(1) to read as follows: 

§ 63.1210 What are the notification 

requirements? 

* * * * * 

(b) Notification of intent to comply 

(NIC). These procedures apply to 

sources that have not previously 

complied with the requirements of 

paragraphs (b) and (c) of this section, 

and to sources that previously complied 

with the NIC requirements of §§ 63.1210 

and 63.1212(a), which were in effect 

prior to October 11, 2000, that must 

make a technology change requiring a 

Class 1 permit modification to meet the 

standards of §§ 63.1219, 63.1220, and 

63.1221. 

* * * * * 

(3) You must submit the final NIC to 

the Administrator no later than one year 

following the effective date of the 

emission standards of this subpart or 60 

days following the informal public 

meeting. 

(c) * * * (1) Prior to the submission 

of the NIC to the permitting agency, and 

no later than 10 months after the 

effective date of the emission standards 

of this subpart or 30 days following 

notice of the informal public meeting, 

you must hold at least one informal 

meeting with the public to discuss the 

anticipated activities described in the 

draft NIC for achieving compliance with 

the emission standards of this subpart. 

You must post a sign-in sheet or 

otherwise provide a voluntary 

opportunity for attendees to provide 

their names and addresses. 

* * * * * 

9. Section 63.1212 is amended by 

revising paragraphs (b)(1), (b)(3), and 

(b)(4) to read as follows: 

§ 63.1212 What are the other requirements 

pertaining to the NIC? 

* * * * * 

(b) * * * 

(1) Prepare a draft NIC pursuant to 

§ 63.1210(b) and make it available to the 

public upon issuance of the notice of 

public meeting pursuant to 

§ 63.1210(c)(3); 

* * * * * 

(3) Provide notice to the public of a 

pre-application meeting pursuant to 

§ 124.30 of this chapter or notice to the 

public of a permit modification request 

pursuant to § 270.42 of this chapter; and 

(4) Hold an informal public meeting, 

pursuant to §§ 63.1210(c)(1) and (c)(2), 

30 days following notice of the NIC 

public meeting and notice of the preapplication meeting or notice of the 

permit modification request to discuss 

anticipated activities described in the 

draft NIC and pre-application or permit 

modification request for achieving 

compliance with the emission standards 

of this subpart. 

* * * * * 

10. Section 63.1215 is amended as 

follows: 

a. By revising paragraph (a)(1)(i). 

b. By revising the definitions of ‘‘1- 

Hour Average HCl-Equivalent Emission 

Rate’’ and ‘‘1-Hour Average HClEquivalent Emission Rate Limit’’ in 

paragraph (a)(2). 

c. By revising paragraphs (b)(2), (b)(3), 

and (b)(6)(ii)(C). 

d. By revising paragraphs (e)(2)(i)(B), 

(e)(2)(i)(C), and (e)(2)(i)(D). 

e. By adding paragraph (e)(3). 

f. By revising paragraph (f)(5)(ii)(A). 

g. By revising paragraph (h)(2)(i). 

§ 63.1215 What are health-based 

compliance alternatives for total chlorine? 

(a) * * * 

(1) 

(i) Identify a total chlorine emission 

concentration (ppmv) expressed as 

chloride (Cl(-)) equivalent for each onsite hazardous waste combustor. You 

may select total chlorine emission 

concentrations as you choose to 

demonstrate eligibility for the risk-based 

limits under this section, except as 

provided by paragraph (b)(7) of this 

section; 

* * * * * 

(2) * * * 

1-Hour Average HCl-Equivalent 

Emission Rate means the HCl-equivalent 

emission rate (lb/hr) determined by 

equating the toxicity of chlorine to HCl 

using aRELs as the health risk metric for 

acute exposure. 

1-Hour Average HCl-Equivalent 

Emission Rate Limit means the HClequivalent emission rate (lb/hr) 

determined by equating the toxicity of 

chlorine to HCl using aRELs as the 

health risk metric for acute exposure 

and which ensures that maximum 1- 

hour average ambient concentrations of 

HCl-equivalents do not exceed a Hazard 

Index of 1.0, rounded to the nearest 

tenths decimal place (0.1), at an off-site 

receptor location. 

* * * * * 

(b) * * * 

(2) Annual average rates. You must 

calculate annual average toxicityweighted HCl-equivalent emission rates 

for each combustor as follows: 

ERLTtw = ERHCl + ERCl2 × (RfCHCl/RfCCl2) 

Where: 

ERLTtw is the annual average HCl 

toxicity-weighted emission rate 

(HCl-equivalent emission rate) 

considering long-term exposures, 

lb/hr 

ERHCl is the emission rate of HCl in lbs/ 

hr 

ERCl2 is the emission rate of chlorine in 

lbs/hr 

RfCHCl is the reference concentration of 

HCl 

RfCCl2 is the reference concentration of 

chlorine 

(3) 1-hour average rates. You must 

calculate 1-hour average toxicityweighted HCl-equivalent emission rates 

for each combustor as follows: 

ERSTtw = ERHCl + ERCl2 × (aRELHCl/ 

aRELCl2) 

Where: 

ERSTtw is the 1-hour average HCltoxicity-weighted emission rate 

(HCl-equivalent emission rate) 

considering 1-hour (short-term) 

exposures, lb/hr 

ERHCl is the emission rate of HCl in lbs/ 

hr 

ERCl2 is the emission rate of chlorine in 

lbs/hr 

aRELHCl is the aREL for HCl 

aRELCl2 is the aREL for chlorine 

* * * * * 

(6) * * * 

(ii) * * * 

(C) You must calculate the 1-hour 

average HCl-equivalent emission rate 

using these HCl and Cl2 emission rates 

and the equation in paragraph (b)(3) of 

this section. 

* * * * * 

(e) * * * 

(2) * * * 

(i) * * * 


jlentini on PROD1PC65 with PROPOSAL2
52652 Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 

(B) Your permitting authority should 

notify you of approval or intent to 

disapprove your eligibility 

demonstration within 6 months after 

receipt of the original demonstration, 

and within 3 months after receipt of any 

supplemental information that you 

submit. A notice of intent to disapprove 

your eligibility demonstration, whether 

before or after the compliance date, will 

identify incomplete or inaccurate 

information or noncompliance with 

prescribed procedures and specify how 

much time you will have to submit 

additional information or to achieve the 

MACT standards for total chlorine 

under §§ 63.1216, 63.1217, 63.1219, 

63.1220, and 63.1221. If your eligibility 

demonstration is disapproved, the 

permitting authority may extend the 

compliance date of the total chlorine 

standards up to one year to allow you 

to make changes to the design or 

operation of the combustor or related 

systems as quickly as practicable to 

enable you to achieve compliance with 

the MACT total chlorine standards. 

(C) If your permitting authority has 

not approved your eligibility 

demonstration by the compliance date, 

and has not issued a notice of intent to 

disapprove your demonstration, you 

may begin complying, on the 

compliance date, with the HClequivalent emission rate limits you 

present in your eligibility demonstration 

provided that you have made a good 

faith effort to provide complete and 

accurate information and to respond to 

any requests for additional information 

in a timely manner. If the permitting 

authority believes that you have not 

made a good faith effort to provide 

complete and accurate information or to 

respond to any requests for additional 

information, however, the authority may 

notify you in writing by the compliance 

date that you have not met the 

conditions for complying with the 

health-based compliance alternative 

without prior approval. Such notice will 

explain the basis for concluding that 

you have not made a good faith effort to 

comply with the health-based 

compliance alternative by the 

compliance date. 

(D) If your permitting authority issues 

a notice of intent to disapprove your 

eligibility demonstration after the 

compliance date, the authority will 

identify the basis for that notice and 

specify how much time you will have to 

submit additional information or to 

comply with the MACT standards for 

total chlorine under §§ 63.1216, 

63.1217, 63.1219, 63.1220, and 63.1221. 

The permitting authority may extend 

the compliance date of the total chlorine 

standards up to one-year to allow you to 

make changes to the design or operation 

of the combustor or related systems as 

quickly as practicable to enable you to 

achieve compliance with the MACT 

standards for total chlorine. 

* * * * * 

(3) The operating requirements in the 

eligibility demonstration are applicable 

requirements for purposes of parts 70 

and 71 of this chapter and will be 

incorporated in the title V permit. 

(f) * * * 

(5) * * * 

(ii) * * * 

(A) You must determine your chlorine 

emissions to be the higher of the value 

measured by Method 26/26A, or an 

equivalent method, or the value 

calculated by the difference between the 

combined hydrogen chloride and 

chlorine levels measured by Method 26/ 

26A, or an equivalent method, and the 

hydrogen chloride measurement from 

EPA Method 320/321 or ASTM D 6735–

01, or an equivalent method. 

* * * * * 

(h) * * * 

(2) * * * 

(i) Proactive review. You must submit 

for review and approval with each 

comprehensive performance test plan 

either a certification that the 

information used in your eligibility 

demonstration has not changed in a 

manner that would decrease the annual 

average or 1-hour average HClequivalent emission rate limit, or a 

revised eligibility demonstration. 

* * * * * 

11. Section 63.1216 is amended by 

revising paragraph (a)(7) to read as 

follows: 

§ 63.1216 What are the standards for solid 

fuel boilers that burn hazardous waste? 

(a) * * * 

(7) For particulate matter, except for 

an area source as defined under § 63.2 

or as provided by paragraph (e) of this 

section, emissions in excess of 69 mg/ 

dscm corrected to 7 percent oxygen. 

* * * * * 

12. Section 63.1217 is amended by 

revising paragraphs (a)(6)(ii), (a)(7), and 

(b)(6)(ii) to read as follows: 

§ 63.1217 What are the standards for liquid 

fuel boilers that burn hazardous waste? 

(a) * * * 

(6) * * * 

(ii) When you burn hazardous waste 

with an as-fired heating value of 10,000 

Btu/lb or greater, emissions in excess of 

5.1 × 10 ¥2 lbs combined emissions of 

hydrogen chloride and chlorine gas 

attributable to the hazardous waste per 

million Btu heat input from the 

hazardous waste; 

(7) For particulate matter, except for 

an area source as defined under § 63.2 

or as provided by paragraph (e) of this 

section, emissions in excess of 79 mg/ 

dscm corrected to 7 percent oxygen. 

* * * * * 

(b) * * * 

(6) * * * 

(ii) When you burn hazardous waste 

with an as-fired heating value of 10,000 

Btu/lb or greater, emissions in excess of 

5.1 × 10 ¥2 lbs combined emissions of 

hydrogen chloride and chlorine gas 

attributable to the hazardous waste per 

million Btu heat input from the 

hazardous waste; 

* * * * * 

13. Section 63.1219 is amended by 

revising paragraphs (a)(7) and (b)(7) to 

read as follows: 

§ 63.1219 What are the replacement 

standards for hazardous waste 

incinerators? 

(a) * * * 

(7) Except as provided by paragraph 

(e) of this section, particulate matter in 

excess of 30 mg/dscm corrected to 7 

percent oxygen. 

(b) * * * 

(7) Except as provided by paragraph 

(e) of this section, particulate matter in 

excess of 3.5 mg/dscm corrected to 7 

percent oxygen. 

* * * * * 

14. Section 63.1220 is amended as 

follows: 

a. By revising paragraphs (a)(2)(ii) and 

(a)(7)(i). 

b. By revising paragraphs (b)(2)(ii) and 

(b)(7)(i). 

§ 63.1220 What are the replacement 

standards for hazardous waste burning 

cement kilns? 

(a) * * * 

(2) * * * 

(ii) Either: 

(A) Emissions in excess of 120 μg/ 

dscm, corrected to 7 percent oxygen, or 

(B) A hazardous waste feed maximum 

theoretical emission concentration 

(MTEC) in excess of 120 μg/dscm; 

* * * * * 

(7) * * * 

(i) Emissions in excess of 65 mg/dscm 

corrected to 7 percent oxygen; and 

* * * * * 

(b) * * * 

(2) * * * 

(ii) Either: 

(A) Emissions in excess of 120 μg/ 

dscm, corrected to 7 percent oxygen, or 

(B) A hazardous waste feed maximum 

theoretical emission concentration 

(MTEC) in excess of 120 μg/dscm; 

* * * * * 

(7) * * * 


jlentini on PROD1PC65 with PROPOSAL2
Federal Register / Vol. 71, No. 172 / Wednesday, September 6, 2006 / Proposed Rules 52653 

(i) Emissions in excess of 5.3 mg/ 

dscm corrected to 7 percent oxygen; and 

* * * * * 

15. Section 63.1221 is amended by 

revising paragraphs (a)(7) and (b)(7) to 

read as follows: 

§ 63.1221 What are the replacement 

standards for hazardous waste burning 

lightweight aggregate kilns? 

(a) * * * 

(7) Particulate matter emissions in 

excess of 57 mg/dscm corrected to 7 

percent oxygen. 

(b) * * * 

(7) Particulate matter emissions in 

excess of 22 mg/dscm corrected to 7 

percent oxygen. 

* * * * * 

PART 264—STANDARDS FOR 

OWNERS AND OPERATORS OF 

HAZARDOUS WASTE TREATMENT, 

STORAGE, AND DISPOSAL 

FACILITIES 

16. The authority citation for part 264 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6924, 

and 6925. 

17. Section 264.340 is amended as 

follows: 

a. By revising the first sentence of 

paragraph (b)(1) and paragraph (b)(3). 

b. By removing paragraph (b)(5). 

§ 264.340 Applicability. 

* * * * * 

(b) * * * (1) Except as provided by 

paragraphs (b)(2) through (b)(4) of this 

section, the standards of this part do not 

apply to a new hazardous waste 

incineration unit that becomes subject 

to RCRA permit requirements after 

October 12, 2005; or no longer apply 

when an owner or operator of an 

existing hazardous waste incineration 

unit demonstrates compliance with the 

maximum achievable control 

technology (MACT) requirements of part 

63, subpart EEE, of this chapter by 

conducting a comprehensive 

performance test and submitting to the 

Administrator a Notification of 

Compliance under §§ 63.1207(j) and 

63.1210(d) of this chapter documenting 

compliance with the requirements of 

part 63, subpart EEE, of this chapter. 

* * * 

* * * * * 

(3) The particulate matter standard of 

§ 264.343(c) remains in effect for 

incinerators that elect to comply with 

the alternative to the particulate matter 

standard under §§ 63.1206(b)(14) and 

63.1219(e) of this chapter. 

* * * * * 

PART 266—STANDARDS FOR THE 

MANAGEMENT OF SPECIFIC 

HAZARDOUS WASTES AND SPECIFIC 

TYPES OF HAZARDOUS WASTE 

MANAGEMENT FACILITIES 

18. The authority citation for part 266 

continues to read as follows: 

Authority: 42 U.S.C. 1006, 2002(a), 3001–

3009, 3014, 6905, 6906, 6912, 6921, 6922, 

6924–6927, 6934, and 6937. 

19. Section 266.100 is amended by 

redesignating the second paragraph 

(b)(3)(ii) as (b)(3)(iii). 

§ 266.100 [Amended] 

[FR Doc. 06–7251 Filed 9–5–06; 8:45 am] 

BILLING CODE 6560–50–P 


jlentini on PROD1PC65 with PROPOSAL2