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April 8, 2013

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The Honorable Robert Perciasepe Acting Administrator U.S. Environmental Protection Agency Office of the Administrator Room 3000 1200 Pennsylvania Avenue, NW Washington, DC 20004 Perciasepe.bob@epa.gov

Docket ID Number: EPA-HQ-OAR-2003-0119

Re: Petition for Reconsideration of Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amen dments, Final Rule, 78 Fed. Reg. 9112 (Feb. 7, 2013)

Dear Acting Administrator Perciasepe,

On behalf of the Energy Recovery Council, please f ind enclosed a Petition for Reconsideration of final agency action entitled Com mercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amen dments, Final Rule, published at 78 Fed. Reg. 9112 (Feb. 7, 2013). The Energy Recovery Council is a non-profit trade association for companies that use waste-to-energy technology for the safe disposal of municipal solid waste.

Thank you for your consideration, and we look forw ard to working with you to resolve the issues outlined in the petition.

Please do not hesitate to contact me if you have a ny questions regarding the attached petition.

Best regards,

Ted Michaels

Energy Recovery CouncilThe Honorable Robert Perciasepe

Acting Administrator Page 2

Courtesy Copies Via Electronic Mail Toni Jones, EPA, Fuels and Incineration Group, jones.toni@epa.gov Amy Hambrick, EPA, Fuels and Incineration Group, hambrick.amy@epa.gov George Faison, EPA, Program Implementation and Inf ormation Division, faison.george@epa.gov EPA Docket Center, a-and-r-Docket@epa.gov Via First Class Mail Associate General Counsel for the Air and Radiatio n Law Office Office of General Counsel (Mail Code 2344A) Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20004BEFORE THE ADMINISTRATOR UNITED STATES ENVIRONMEN TAL PROTECTION AGENCY

) In re: Commercial and Industrial Solid ) Waste Incineration Units: Reconsideration ) And Final Amendments; Non-Hazardous ) Docket ID EPA-HQ-OAR-2003-0119 Secondary Materials that are Solid Waste; ) and EPA-HQ-RCRA-2008-0329 Final Rule, Notice of Final Action on ) Reconsideration, 78 Fed. Reg. 9112 ) (Feb. 7, 2013) ) )

PETITION OF THE ENER GY RECOVERY COUNCIL FOR RECONSIDERATION

Pursuant to Section 307(d)(7)(B) of the Clean Air Act (“CAA”), 42 U.S.C. § 7607(d)(7)(B), the Energy Recovery Council (“ ERC”) hereby petitions the Administrator of the U.S. Environmental Protection Agency (“EP A” or “Agency”) to reconsider portions of EPA’s final rule entitled “Commercial and Industrial Solid Waste Incineration Units: Reconsideration and Final Amendments; Non-H azardous Secondary Materials that are Solid Waste; Final Rule, Notice of Final Action on Reconsideration, 78 Fed. Reg. 9112 (Feb. 7, 2013) (“CISWI Reconsideration Rule”). In Ma rch of 2011, EPA promulgated Standards of Performance for New Stationary Sources and Em issions Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incine ration Units (“2011 CISWI Rule”), pursuant to Section 129 of the CAA. 1 76 Fed. Reg. 15,704 (Mar. 21, 2011). The CISWI Reconsideration Rule addresses certain aspects of the 2011 CISWI Rule for which EPA granted reconsideration.

ERC is a non-profit trade association for co mpanies that use waste-to-energy technology. The waste-to-energy industry safely disposes of municipal solid waste and at the same time generates renewable electricity using modern combustion technol ogy equipped with state-of-theart pollution control systems. ERC joined with a coalition of associati ons to petition EPA for reconsideration of the 2011 CISWI Rule, and it submitted comments on the proposed CISWI Reconsideration Rule. Members of the ERC operate units that are or may become subject to the rules promulgated by EPA under the 2011 CISWI Rule and CISWI Reconsideration Rule.

ERC requests reconsideration on four aspect s of the CISWI Reconsideration Rule.

1 At the same time EPA published the 2011 CISWI Rule, EPA published two related rulemakings: (1) National Emission Standards for Hazardous Air Pollut ants for Major Sources: In dustrial, Commercial, and Institutional Boilers and Process Heaters, 76 Fed. Reg. 15 ,608 (Mar. 21, 2011) (referred to as the “Boiler MACT Rule”); and (2) Identification of Non-H azardous Secondary Materials That Are Solid Waste, 76 Fed. Reg. 15,456 (Mar. 21, 2011) (referred to as the “NHSM Rule”). The NHSM Rule was issued to assist facilities in determining the applicability of the CIS WI and Boiler MACT Rules with respect to non-hazardous second ary materials burned as fuels or used in combustion units. EPA also granted reconsideration with re spect to various issues in the Boiler MACT Rule, and published its rule on reconsideration for the Boiler MACT on January 31, 2013. 78 Fed. Reg. 7138 (Jan. 31, 2013).ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

2 First, EPA must reconsider the definition of “CEMS data during startup and shutdown,” because the definition in the fi nal CISWI Reconsideration Rule included for the first time a limitation ending the startup period when “waste is fed into the unit.” This limitation was not in the proposed reconsideration rule , and, in fact, undermines the pur pose of extending the startup period from 4 hours, as proposed, to 48 hours, as in the final rule. On reconsideration, EPA should extend the startup duration to include the period of non-st eady-state operation that occurs after waste is first fired to the unit.

Second, EPA must reconsider the final hydr ogen chloride (“HCl”) emissions limit for biomass Energy Recovery Units (“ERUs”) because it did not properly addr ess the representative detection level for measuring HCl emissions. EP A substantially revised its HCl emissions limit for these units from the proposed rule, and the new limit in the final rule is not consistent with EPA guidance and practice. Moreover, the record demonstrates that the standard has not been achieved in practice for these uni ts, and must be reconsidered.

Third, EPA should reconsider the requir ements for a six-month minimum CISWI applicability period a nd a six-month waste-to-f uel switch notification and the onerous provision in the definition of “CISWI units” which states th at failure of operating units such as boilers to keep compliant records on non-traditional mate rials burned automatically makes the unit a CISWI. While the public, including ERC, commented on these provisions, EPA has not provided adequate support for it s determination in the final rule. On the fuel switching provisions, EPA failed to adequately respond to comments on the potential impacts on a unit if it inadvertently combusts solid waste and, thus, pote ntially becomes subject to the more stringent CISWI requirements for a period of six months. EPA must reconsider the rule as it imposes undue burdens on parties, and may force shutdown of facilities to avoi d the more stringent CISWI requirements. On the CISWI unit defini tion, EPA indicated in its response to comments that it has corrected the definition to alleviate the burdens identified by the public, but the definition in the final CISWI Recons ideration Rule is the same as that in the proposed rule. The following comparison of the HCl standards in th e Boiler MACT and the CISWI Reconsideration Rule illustrate the stark difference in requi rements and the importance of these issues:

Table 1. HCl Emission Standards Applicable to Existing CISWI ERUs and Major Source Boilers

CISWI MACT/ Boiler MACT Subcategory HCl Emission Standard (1)

CISWI MACT - ERU Biomass (2) 0.20

CISWI MACT - ERU Coal (2) 13

Boiler MACT - Biomass Units (3) 17

Boiler MACT - Coal Units (3) 16

(1) All values at ppmv dry basis @ 7% oxygen

(2) 40 CFR 60, Subpart DDDD, Table 7.

(3) 40 CFR 63, Subpart DDDDD, Table 2. Standard is 2.2E-2 lb per MMBtu for solid fuels, converted to ppmdv @ 7% oxygen using fuel F-factors in 40 CFR 60, Appendix A, Table 19-2.ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

3 The differences are particularly striking given that, fundamenta lly, it is the same equipment combusting the material in both cases. Thus, ERC believes EPA should reconsider the rule in order to make the requisite correct ions to the definition. To the ex tent EPA determines that these issues are not appropriate for reconsideration under Section 307( d)(7)(B) because the public had an opportunity to comment, ERC requests that EPA treat this petiti on as a petition for rulemaking.

I. BACKGROUND

A. History of the CISWI Reconsideration Rule

Section 129 of the CAA specifically covers emissions from “solid waste incineration units,” requiring the maximum achievable c ontrol technology (“MACT”) for such units. 42 U.S.C. § 7429. EPA first issued emissions st andards under Section 129 for commercial and industrial solid waste incineration units (“CISWI Units”) in 2000. 65 Fed. Reg. 75,338 (Dec. 1, 2000) (referred to as the “2000 CI SWI Rule”). A challenge to the 2000 CISWI Rule was filed with respect to, among other th ings, EPA’s definition of CI SWI Units, and EPA voluntarily agreed to reconsider the definition.

On September 22, 2005, EPA published a final rule reflecting its decisi ons with respect to the challenged CISWI definitions. 70 Fed. Reg. 55,568 (Sept. 22, 2005) (referred to as the “CISWI Definitions Rule”). In the CISWI Defi nitions Rule, EPA defined the term “commercial or industrial solid waste incineration unit” to m ean a combustion unit that combusts “commercial or industrial waste,” which EPA de fined to mean waste combusted at a unit that does not recover thermal energy from the combustion for a us eful purpose. EPA’s definition was again challenged, and the U.S. Court of Appeals for th e D.C. Circuit vacated the CISWI Definitions Rule, holding that the term “solid waste incineration unit” in CAA Section 129(g)(1) “unambiguously include[s] among the incineration un its subject to its sta ndards any facility that combusts any commercial or industrial solid waste ma terial at all -- subjec t to the four statutory exceptions identified [in CAA Section 129(g)(1)].” Natural Res. Def. Council v. EPA , 489 F.3d 1250, 1257-58 (D.C. Cir. 2007). In March of 2011, EPA issued its 2011 CISWI Rule, which was part of EPA’s effort to address the vacatur of the CISWI Definitions Rule. 75 Fed. Reg. 31,938, 31,938 (June 4, 2010). 2 In the meantime, the 2000 CISWI Rule remained in effect.

At the same time it issued the 2011 CISWI Rule , EPA also issued a notice indicating that it will reconsider various as pects of the 2011 CISWI Rule. 76 Fed. Reg. 15,266 (Mar. 21, 2011). The notice indicated that EPA “is in the process of developing a proposed reconsideration notice that identifies the specific elements of the rule s for which we believe further public comment is

2 The 2011 CISWI Rule defined a CI SWI unit as “any distinct operating unit of any comm ercial or industrial facility that combusts, or has combusted in the preceding 6 months, any solid waste as that term is defined in 40 CFR part 241. If the operating unit burns materials other than traditional fuels as defined in § 241.2 that have been discarded, and you do not keep and produce records as required by § 60.2175(v), the material is a solid waste and the operating unit is a CISWI unit. While not all CISWI units will include all of the following components, a CISWI unit includes, but is not limited to, the solid waste feed system, grate system, fl ue gas system, waste heat recovery equipment, if any, and bottom ash system. The CISWI unit does not include air pollution control equipment or the stack.” 76 Fed. Reg. at 15,762 (40 C.F.R. § 60.2265); see also id. at 15,782 (40 C.F.R. § 60.2875).ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

4 appropriate and any provisions thatwe propose to modify after mo re fully evaluating the data and comments already received.” Id. at 15,267. EPA recognized that “certain issues of central relevance to these rules arose after the pe riod for public comment or may have been impracticable to comment upon,” and “that rec onsideration is appropr iate under section 307(d)(7)(B) of the Clean Air Act.” Id. EPA also considered issues raised by several requests for reconsideration submitted by the public, and pub lished a proposed rule on reconsideration of the 2011 CISWI Rule on December 23, 2011 at 76 Fed. Reg. 80,452.

On February 7, 2013, EPA completed its r econsideration of the 2011 CISWI Rule, 78 Fed. Reg. 9112. Among other things, the CISW I Reconsideration Rule purports to make “technical corrections to the final rule to cl arify definitions, references, applicability and compliance issues.” Id. at 9112. EPA also made revisions to the NHSM Rule “to clarify several provisions in order to impleme nt the non-hazardous secondary ma terials rule as the agency originally intended.” Id. While the CISWI Reconsideration Rule made several important clarifications, it included additional changes that were not properly noticed, and it did not address certain provisions that continue to create confusion as to the applicability of the CISWI MACT versus the Boiler MACT to particular units. It also revised certai n of the standards in a manner that is inconsistent with the proposed rule and with EPA precedent. These revised standards are unworkable, and the record does not support that the standards have been achieved in practice.

B. Statutory Provisions Gove rning Reconsideration

Under CAA Section 307 (d)(7)(B), the Administrator is required to convene a proceeding to reconsider a final rule upon a demonstration th at it was impracticable to raise a particular objection to the rule during the period for public comment (but within the time specified for judicial review), if the objection is of central relevance to the outcome of the rule. 42 U.S.C. § 7607(d)(7)(B). Such is the case here.

The CAA requires EPA to provide notice of its proposed rule thr ough a statement of its basis and purpose, and to give the public a m eaningful opportunity to comment. 42 U.S.C. § 7607(d)(3), (4), (5); see also 5 U.S.C. § 553(b)(3), incorporated by reference in 42 U.S.C. § 7607(d)(3) (requiring notice of “either the term s or substance of the proposed rule or a description of the subjects and issues involved”). “The significance of rulemaking cannot be underemphasized. It gives parties affected by a decision an opportunity to participate in the decision-making process and forces EPA to ar ticulate the bases for its decisions.” Donner Hanna Coke Corp. v. Costle , 464 F. Supp. 1295, 1305 (W.D.N.Y. 1979) (citation omitted); see also Kennecott Corp. v. EPA , 684 F.2d 1007, 1019 (D.C. Cir. 198 2) (finding “[t]hat EPA allowed petitions for reconsideration is not an adequate substitute for an opportunity for notice and comment prior to promulgation”) (citation omitted). The D.C. Circuit has recognized that:

Notice requirements are designed (1) to ensure that agency regulations are tested via expos ure to diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to supportERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

5 their objections to the rule and thereby enhance the quality of judicial review.

Envtl. Integrity Project v. EPA , 425 F.3d 992, 996 (D.C. Cir. 2005) (quoting Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin. , 407 F.3d 1250, 1259 (D.C. Cir. 2005)); see also Weyerhaeuser Co. v. Costle , 590 F.2d 1011, 1028 (D.C. Cir. 1978) (Court will defer to agency “so long as we are assure d that its promulgation process as a whole and in each of its major aspects provides a degree of public awareness, understandi ng, and participation commensurate with the complexity and intrusiven ess of the resulting regulations.”) (citations omitted). Moreover, the mere fact that EPA’s fi nal rule may be responding to certain comments it received on the proposal does not give EPA license to ignore its obligations. See McLouth Steel Products Corp. v. Thomas , 838 F.2d 1317, 1323 (D.C. Cir. 1988) (citing AFL-CIO v. Donovan , 757 F.2d 330, 339-40 (D.C. Cir. 1985) and Small Refiner Lead Phase-Down Task Force v. EPA , 705 F.2d 506, 549-50 (D.C. Cir. 1983)). Given the comple xity of the issues and the clear concerns of the public as to the imp acts of the CISWI Rule, it was incumbent on EPA to ensure that it provided adequate notice and a m eaningful opportunity for the public to comment.

Because EPA made certain new determinations in the final CISWI Reconsideration Rule (and, in some cases, appears to have moved 180o from the position articulat ed at the time of the proposed reconsideration rule), it was impr acticable for the public to comment on these determinations. As further described below, EPA failed to provide adequate notice and opportunity for comment with resp ect to its new limitation truncati ng the startup period in the definition of CEMS during startup and shutdow n and on its new HCl limit for biomass ERUs, and must grant reconsideration on these issues. In the final CISWI Reconsideration Rule, EPA also failed to adequately respond to comments with respect to the requirement that units are potentially subject to the CISWI requirements for six months even in the event of inadvertent combustion of solid waste, and EPA should reconsid er these aspects of the final rule as well. Finally, EPA indicated that it made changes to th e CISWI Unit definition to address concerns of the public that failures in recordkeeping can make a unit a CISWI, but the definition remains the same as in the proposal. Thus, ERC requests EP A make the appropriate clarifications through a technical amendment.

II. BASIS FOR RECONSIDERATION OF THE FINAL RULE

A. EPA Must Reconsider its Definition of “CEMS Data During Startup and Shutdown” and Eliminate the New Limitation on Startup Periods, Which was not in the Proposed Rule.

To meet the carbon monoxide (“CO”) standard in the 2011 CISWI Rule, a facility may use CEMS data, which must be corrected for oxyge n content. In response to concerns raised with respect to the 2011 CISWI Rule, the propos ed CISWI Reconsideration Rule included a definition of “CEMS data during startup and shutdown” that allowed operators to use uncorrected data during certain startup and shutdown periods wh en determining compliance for CO, a CEMS monitored pollutant. This is because EPA recognized that, as a result of increased combustion air flow, the oxygen correction factor may inflate the already increased emissions during these times. Both startup and shutdown were defined solely by the amount of time EPAERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

6 believed was necessary for units to reach steady- state operations on the one hand, and for the last waste to be fully combusted on the other. 78 Fed. Reg. at 9123.

In response to comments on the proposed recons ideration rule, EPA ma de revisions to the proposed definition of “CEMS data during start up and shutdown” to address concerns raised regarding variation among units in reaching stab le operating conditions that may not be have been accurately reflected in the proposed de finition. 78 Fed. Reg. at 9123, 9128. However, the revised definition of CEMS data during startup and shutdown in the final rule, for the first time and with no explanation, limits the startup period to the time from cold start “until waste is fed into the unit.” 78 Fed. Reg. at 9188, 9205. This truncates the startup pe riod in a manner that does not reflect actual operations of a combusti on unit or the time required to ensure the unit, including the pollution control equipment, has r eached proper operating cond itions. This revised definition raises new concerns a bout the ability of biomass Energy Recovery Units (“ERUs”) to comply with CISWI standards during startup and shutdown events, because the uncorrected data does not include the period of increased emissi on concentrations which unavoidably occur after waste is first fed into the unit and until steady- state operation is achieved. Because EPA did not properly notice this new limitation and the inclusion of these emissions raises issues of central relevance to the CISWI Reconsideration Rule, EPA should reconsider th e definition of CEMS data during startup and shutdown, extending startup duration to incl ude the period of transitional operation that occurs after wast e is first fed into the unit.

1. Because EPA did not provide any notic e that the startup period would end when “waste is fed into the unit,” it was impracticable to raise this issue during the comment period.

EPA proposed to reconsider the final 2011 CI SWI Rule monitoring requirements for CO in its Notice of Reconsideration. 76 Fed. Re g. at 15,267. In its proposed reconsideration rule, EPA recognized that CO emission concentrations corrected to 7% oxygen can be artificially inflated at the high flue gas oxygen levels present when a unit is starting up and shutting down and that this may affect co mpliance with emission limits. 76 Fed. Reg. at 80,461. EPA proposed to waive the oxygen correction for 4 hours during startup and 1-hour during shutdown for those units that elect to demonstrate compliance us ing CEMS data, incorporating a newly defined term, as follows:

CEMS data during startup and shutdown means carbon monoxide CEMS data collected during th e first 4 hours of operation of energy recovery unit startup from a cold start and the hour of operation following the cessation of waste material being fed to the energy recovery unit du ring a unit shutdown.

76 Fed. Reg. at 80,501. EPA based the timing of startup and shutdown on data it had for one unit, which was coal-fired.

In its final CISWI Reconsideration Rule, EPA altered the definition of CEMS data during startup and shutdown as it pertai ns to ERUs in three important ways. First, based on public comment, it extended the applicat ion of the CEMS data to all CEMS-monitored pollutants, not just CO. 78 Fed. Reg. at 9128. Second, it lengt hened the startup and s hutdown periods to asERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

7 much as 48 hours and 24 hours, respectively, also in response to public comment. Id. at 9123. These were both positive changes that recogni ze all CEMS data are impacted during these transient periods, not just CO, and the difficulty of units to meet the standards during startup and account for the potential variation in startup times among units, as outlined in public comments. Despite these changes, however, EPA also made a third change which ends the startup period when waste is fed to the unit, a limitation that was not noticed in the proposed reconsideration rule, and undermines the positive changes made by EPA. The final rule definition is as follows:

CEMS data during startup and shutdown means the following:

(1) For incinerators, small remote incinerators, and energy recovery units: CEMS data coll ected during the first hours of operation of a CISWI unit startup fr om a cold start until waste is fed to the unit and the hours of operation following the cessation of waste material being fed to the CISWI unit during a unit shutdown. For each startup event, the length of time that CEMS data may be claimed as being CEMS data durin g startup must be 48 operating hours or less. For each shutdown event, the length of time that CEMS data may be claimed as being CEMS data during shutdown must be 24 operating hours or less.

(2) For waste-burning kilns: CEMS data collected during the periods of kiln operation that do not include normal operations. Startup begins when the kiln’s induced fan is turned on and continues until continuou s feed is intr oduced into the kiln, at which time the kiln is in normal operati ng mode. Shutdown begins when feed to the kiln is halted.

78 Fed. Reg. at 9205 (emphasis added). The langua ge in the final definition which ends the startup period at first waste feed was not noticed in the proposed reconsid eration rule, and we are unaware of any comments in the record which asked EPA to add that limitation. See MCI Telecomms. Corp. v. FCC , 57 F.3d 1136, 1142 (D.C. Ci r. 1995) (“More to the point, however, this court has made it clear that an agency may not turn the provis ion of notice into a bureaucratic game of hide and seek.”) (citatio ns omitted). While the public commented on the fact that EPA needed to provide for a longer st artup period than four ho urs, EPA did not propose to limit the startup time on the basis of waste first being fed to the unit. Rather, the only limitation in the proposal was the amount of time that EPA thought was appropriate for units to reach steady-state operating conditions (i.e., four hours). Waste could have been fed into the unit at any time during this 4-hour wi ndow. In addition, EPA did not include a similar limitation for waste-burning kilns, stating (wit hout any record support) that “ unlike other CISWI units” wasteburning kilns startup is dependenton material feed into the kiln. 78 Fed. Reg. at 9123. There was no such distinction made in the proposed reconsideration rule. Thus it was impracticable for the public to raise during the public comment pe riod the implications of limiting the startup period to only the time period until waste is first introduced for other CISWI Units. That limitation is a material change to the rule, and it was incumbent on EPA to provide the public notice and an opportunity to comment on it.ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

8 2. ERC’s objection is of ce ntral relevance to the rule, as the revised definition is more stringent than that in the proposal.

In the proposal for the reconsideration rule, EPA agreed that the existing requirements for CEMS data during startup and shutdown for CO were unworkable. As explained above, the proposal created a startup period of four hours from cold star t to account for the potential variability in CO emissions. The four hours was based on a limite d data set, and comments on the proposal focused on whether four hours was long enough. Public comments, including ERC’s, explained that units can vary in the time needed to ensure steady-state operating conditions are reached, which is necessary to ensu re proper functioning of the unit and of the pollution control technologies ut ilized. That EPA understood the time needed to ensure proper startup of ERUs varies across units and that allo wing for adequate time is important is evidenced by EPA’s changes in the final definition. This included extending the app licable time frames in the definition, and applying the definition to othe r pollutants, not just CO. But, while taking certain steps in the right direc tion, the final rule renders these improvements illusory by adding a new limitation that would end the st artup period at first waste fire. This limitation, which was added for the first time in the final rule, under mines the flexibility EPA’s amendments were intended to provide. Since the limitation undermin es the purpose of the revisions, EPA must reconsider its definition of CEMS data during startup and shutdown.

EPA cannot contend that the new limitation was added in response to comments and that, therefore, it has already consider ed this issue in the final rule. Comments explained that the four hours was insufficient as startup can take many more hours. (EPA-HQ-OAR-2003-0119-2599, ERC Comments, Comments #7A, 7B, 7C, and 7D). Comment #7B identified technical issues associated with EPA’s proposed definition, incl uding that the startup and shutdown provisions needed to consider that the startup and shutdo wn duration differs with combustion technology. While ERC explained that it believed the best way to ensure adequate startup time was to target the startup period against a certain period of time after waste is first introduced into the unit to address ERC’s concerns regarding tying startup to “cold” starts, it had no indication in the notice that EPA was considering ending the startup period upon first waste fire. 3

By truncating the startup period at first wast e feed, EPA is effectively making the startup period a warm-up period. 4 Startup of a biomass CISWI ERU does not functionally end when

3 ERC was concerned that the definition did not provide sufficient time for startup and limited the use of uncorrected data to cold starts. To address these issues, ERC proposed the following definition be used:

CEMS data during startup and shutdown means all CEMS data collected during the following periods: the entire period of time firing only on auxiliary fuel and the 6 hour period following initiation of waste feed to the energy recovery unit during a unit startup, and the first 2 hours of operation following the cessation of waste feed to the energy recovery unit during a unit shutdown.
ERC provided detailed rationale for its proposed definition and supplied CEMS and other operating data obtained during startup and shutdown of a best performing biomass ERU.

4 EPA in the Municipal Waste Combustor (MWC) MACT, has appropriately distinguished the difference between the startup and warmup periods when promulgating Standards of Performance for Large MWC. See 40 C.F.R. § 60.58b(a)(1)(i) (“The startup period commen ces when the affected facility begins the continuousERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

9 waste is fed into the unit; nor does it end when subsequently both auxili ary fuel and waste is introduced into the unit. It doesn’t even e nd when operating temperature alone is reached. Startup functionally ends when stable combus tion conditions can be ma intained on the unit, auxiliary fuel is no longer required, and air polluti on control equipment is fully operational. This period of time differs by unit.

EPA did not respond to ERC’s comments in either the preamble or the Response to Comments document (EPA-HQ-OAR-2003-0119-2686) and in fact acted contra ry to the request, without explanation. That EPA ignored ERC’s comments is eviden t by the fact that EPA did not include such a limitation for waste-burning kilns, because EPA states, irrationally, “kilns, unlike other CISWI units, are producing product rather than solely disposing of waste or recovering energy.” 78 Fed. Reg. at 9123. But, that issue is irrelevant to the techni cal issues relating to startup of a combustion unit. For both ERUs and waste-burning kiln s, normal operating conditions are not reached until feed is placed into the unit. EPA provides no explanation why “material feed” is somehow distinguishable from “waste feed,” and, if such was the case, why this warrants different treatment where the ke y determination should be when normal operating temperature is reached such that the unit an d its pollution controls can operate properly. Moreover, recovering energy from waste serves a vital and important function. It reduces waste in landfills, and allows alternatives to fossil fuel energy.

EPA failed to provide notice of this ne w limitation, and has failed to provide an explanation for this sudden change from the proposal. This change renders the definition arbitrary and capricious and otherwise in violat ion of the CAA. Unsupported conclusions are insufficient to meet the requirements to explain the basis of EPA’s regulations. See Ne. Md. Waste Disposal Auth. v. EPA , 358 F.3d 936, 948 (D.C. Cir. 2 004) (“[A]s we held in Appalachian Power Co. v. EPA, [135 F.3d 791, 818 (D.C. Cir. 1998)] the EPA at all times ‘retains a duty to examine key assumptions as part of its affirm ative burden of promul gating and explaining a nonarbitrary, non-capricious rule,’ an d therefore must justify its ba sic ‘assumption[s] even if no one objects ... during th e comment period.’”); Small Refiner Lead Phase-Down Task Force v. EPA , 705 F.2d 506, 521 (D.C. Cir. 1983) (findi ng EPA cannot “ignore the procedural requirements of §307(d),” even if the agency “g ives a decent reason for doing so”). Thus, EPA must grant reconsideration, and give the public an opportunity to comment on this definitional change.

3. The new definition of CEMS data during startup and shutdown has significant implications with respect to the stringency of the standards.

ERC also commented that EPA’s proposed em issions standards failed to accurately reflect what has been achieved in practice durin g startup and shutdown periods (Comment #7A). Throughout the CISWI rulemaking EPA has stated that the emission standards apply at all times, including during startup and shutdown. 5 However, EPA has never provided evidence that

burning of municipal solid waste and does not include any warmup period when the affected facility is combusting fossil fuel or other non-municipal solid waste fuel, and no municipal solid waste is being fed to the combustor.”).

5 In presenting this petition we distinguish between the regulatory definitions of “startup period” and “shutdown” contained in the CISWI rule at 40 C.F.R. § 60.2265 and 40 C.F.R. § 60.2875, which exclude all periodsERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

10 MACT standards set using emission data from periods of normal operation can be achieved during startup and shutdown. ERC and others have commented that EPA needs to provide accommodation for these periods, which recogni zes the technology limitations of combustion and air pollution control equipment. See “Peti tion for Administrative Reconsideration and for Amendment of the Industrial Boiler MACT, Indus trial Boiler GACT, and CISWI Rules” filed May 9, 2011, item #8 for a description of th e technical issues. (EPA-HQ-OAR-2003-0119- 2502). EPA stated that “[i]f industr y believed that additional data were necessary, it could have provided that data during the comment period and the Agency would have incorporated the data into its calculation to the extent possible.” (EPA-HQ-OA R-2003-0119-2686 at 169). ERC did in fact provide these data. EPA nonetheless agai n changed the method of compliance in the final rule, and, moreover, substantially lowered the emissions standard fo r CO, as well as HCl, in the final rule as compared to the proposed rule. See Donner Hanna Coke Corp. , 464 F. Supp. at 1304 (“It is undisputed that the method of determining compliance with an emission standard can affect the level of performance required by the st andard, even though the standard itself has not changed.”) (citations omitted). Thus, it is clea r that EPA’s final CISWI Reconsideration Rule does not address the emissions duri ng this new startup period, and that the final rule includes CO and HCl standards of significantly great er stringency than EPA proposed.

In particular, failure to include the peri od of increased emissions during the transition from auxiliary fuel to the waste fuel jeopardizes the ability for units to m eet the standard. Table A-1 in Appendix A of E RC’s comments, included below, shows that the corrected CO emissions for the 4-hour period following first waste fe ed average 3563 parts per million, dry basis, corrected to 7% oxygen (ppmdv7) . These data demonstrated that unit CO, SO2, and NOx emissions concentrations are significantly elevated after first waste feed as the unit transitions from auxiliary fuel to biomass fuel and air pollution control equipment comes up to temperature and normal operation. See ERC comment #7B, att ached Table A-1 and supporting CEMS data.

Biomass fluidized bed combustors can go through as many as 5 to 7 startup and shutdown cycles over a 30-day period due to sche duled and unscheduled outages. Using these data for 7 startups totaling 4% of the opera ting hours during a 30-day period the startup CO emissions would contribute 140 ppmdv7 toward the 30-day average, or ha lf the limit, without even considering any emissions during normal operation. The fact that EPA lowered the biomass ERU CO limit in the final CISWI Rec onsideration Rule by nearly 50%, from 490 ppmdv7 to 260 ppmdv7, exacerbates the non-compliance concern.

In short, reconsideration is necessary to ensure EPA’s revised rule is in compliance with the statute to base the limitations on what is achieved in practice and set standards that are achievable, including under the worst foreseeable conditions.

when waste is burning, and the broader meaning to operat ors, in which startup includes the entire period of time necessary to bring the unit from cold start up to steady- state operating load, and shutdown includes the entire period of time to bring the unit from operating load to fire out. It is the broader meaning that we refer to here.ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

11 B. EPA Must Reconsider its HCl Limit fo r Biomass ERUs, Which Did Not Properly Address Representative Detection Level (RDL).

Because the public lacked an adequate opportunity to comment, EPA agreed to reconsider the various subcateg ories for ERUs in the 2011 CISWI Rule. 76 Fed. Reg. at 80,457- 80,458. In the proposed CIWSI Reconsideration Ru le, EPA explained that it would continue to subcategorize biomass ERUs with respect to th e standards for certain pollutants, requesting comment on whether it should also promulga te separate HCl and Hg standards. Id. EPA also revised the dataset used for determining the sta ndards, but indicated it was not reopening its methodology from the final 2011 CISWI Rule. Id. Thus, EPA proposed an HCl limit for new ERUs (solid) at 0.50 ppmdv7. In the final CISWI Reconsideration Rule, however, EPA chose to further subcategorize these units, which resulted in an HCl limit for new ERUs (solid) of 0.20 ppmdv7 for biomass units and 13 ppmdv7 for coal units. The new HCl limit for ERUs (solid) is at a level below that which can be properly measured, and appears based on the fact that the data considered was from units which burned wastes with no chlorine. In short, the record does not support that this standard has been ac hieved in practice by ERUs (solid).ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

12 1. Because EPA did not propose to subcategorize ERUs for HCl and the final HCl limit deviated from EPA’s guid ance, it was impracticable for the public to comment on the final HCl limits.

The HCl limit in the final CISWI Reconsider ation Rule is not a l ogical outgrowth from the proposal. In the proposal, EPA did not s ubcategorize ERUs further and set different standards for HCl. While EPA requested comment on whether it should, this is insufficient to give the public a meaningful opportu nity to comment on the new standards, especially since it is not practicable for commenters to predict the eff ect of a possible subcategorization change on the standard. EPA clearly stated th at it was not reconsidering it s methodology on reconsideration. In any event, in determining the final HC l limit of 0.20 ppmdv7 for the Biomass EGU Subcategory EPA did not follow its own internal guidance document for handling below detection limit (“BDL”) data and developing a representative detection limit (“RDL”) for evaluating the floor and setting final HCl emissi on limit. The public could not have been aware that EPA would deviate from this guidance in th e final rule. Thus, it was impracticable for the public to raise this objection.

2. The concerns regarding the HCl limit ar e of central relevance to the final rule because, in short, it is arbitrar y and not in accordance with the CAA.

The final EGU (solid) biomass HCl limit of 0.20 ppmdv7 has not been demonstrated to be continuously achieved in practice due to inhe rent limitations in accuracy and precision of the performance test method. This limit is contrary to EPA’s own guidance, which recognizes that EPA must account for detection li mits in setting MACT standards. EPA’s failure to take this into account renders the limit arbitrary and capr icious, and thus the obj ection is of central relevance to the rule.

A performance standard under the C AA requires “continuous” reductions. See 42 U.S.C. §§ 7411(a)(1), 7602(k), (l). Taking into consideration the worst foreseeable circumstances is the only way to ensure that the standard is achie vable over time; “a distinction must be made between an emission level that has been ‘obs erved’ and an emission limitation that can be continuously ‘achieved.’” 72 Fed. Reg. 5510, 5524 (Feb. 6, 2007). The D.C. Circuit has upheld this approach, finding that EPA must look to wh at the best controlled unit “achieved under the worst foreseeable circumstances” in making this determination. Sierra Club v. EPA , 167 F.3d 658, 665 (D.C. Cir. 1999); see also Nat’l Lime Ass’n , 233 F.3d 625, 631 (D.C. Cir. 2000). EPA has repeatedly recognized this, attempting to account for variab ility in emissions data such as testing variability. Setting aside whether EPA properly noticed the possi bility that it would subcategorize ERUs and establish different HCl st andards, the final HCl limit fails to adequately account for variability for these units.

As EPA is well aware, indivi dual test measurements at low emissions levels including method detection limits normally vary from test to test for any specific test measurement due to, for example, sample and emission matrix effects, differences in laboratory technique, sample size and field sampling errors. In the final rule EPA deviates from its own guidance on how to consider variability in testing methods, includin g differences in measurement detection levels. The Support and Related (SR) Material Document, entitled “CISWI Emission Limit CalculationsERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

13 for Existing and New Sources for the Reconsideration Final Rule,” dated November 16, 2012 (EPA-HQ-OAR-2003-0119-2662), provides supporti ng information including several appendices that contained the revi sed data bases and statistical calculations used to determine the final emission limits for all CISWI subcategorie s. Appendix G -- Method Detection Limit Guidance 12/13/11 6 -- describes EPA’s procedure for developing RDL data for evaluating MACT floors and setting NSPS and MACT emission limits that properly account for measurement variability. The first step in the RD L evaluation procedure is to identify all of the available reported pollutant-spe cific method detection limits fo r the best performing units regardless of any subcategory (e .g. existing, new, fuel type, etc .) and from the combined pool of data calculate the arithmetic m ean value of method detection lim its. As stated in the EPA memorandum “by limiting the data set to those test s used to establish the floor or emission limit (i.e., best performers) we believe the result is representative of the best performing testing companies and laboratories using the most sensitive analytical procedure.” Appendix G at 1. The memorandum goes on to explain that EPA believes “that the outcome should minimize the effect of a test(s) with an i nordinately high method detection le vel (e.g., the sample volume was too small, the laboratory technique was insufficien tly sensitive, or the pr ocedure for determining the minimum value for reporting was other than th e detection level). We then call the resulting mean of the method detection levels as the repres entative detection level (RDL) as characteristic of accepted source emissions measurement performance.” Id . (emphasis added).

The second step in the RDL evaluation proces s is to calculate three times the RDL to compare with the calculated floor or emissions limit. As stated in the EPA Method Detection Limit Guidance memorandum, applying the multipli cation factor of th ree (3) to the RDL accounts for imprecision in the analytical met hod and field sampling. For comparison to the floor, if three times the RDL were less than the calculated floor or emissions limit (e.g., calculated from the UPL), measurement variability was adequately addressed and the calculated floor or emissions limit would need no adjustment. If the value equal to three times the RDL were greater than the limit or UPL, then cal culated floor or emission limit does not account entirely for measurement variability.

EPA’s key conclusion in the Appendix G EPA Method Detection Limit Guidance memorandum is that in order to ensure measurement variability is adequately addressed relative to compliance determinations the RDL for each pollutant should be determined using the minimum method detection level values from all the best performers fo r all final regulatory subcategories (use the pooled test data) and, im portantly to apply the same pollutant-specific mean RDL value to all subcategorie s. The multiplier of three would be applied to the pooled test data set pollutant-specific mean RDL to ensure measurement variability was properly addressed.

EPA did not follow its own guidance on evaluating and appl ying RDLs in the final CISWI Biomass ERU HCl limit, and as such, in accordance with EPA’s own measurement experts, measurement variability relative to compliance determinations was not adequately addressed. The result yields an emissions limit in which compliance can never be demonstrated

6 Memorandum from Peter Westlin, SPPD, MPG and Raymond Merrill, AQAD, MT to SPPD Management and MACT Rule Writers, Data and procedure for handling below detectio n level data in analyzing various pollution emission databases for MACT and RTR emission limits , Dec. 11, 2011.ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

14 based solely on the inability of the test method to accurately and precisely measure at levels around the limit. EPA’s contract or ERG did not pool the minimu m detection limit values from all subcategories for each pollutant specific data set and calculate a mean detection level or RDL value to use for each pollutant specific limit. 7 Rather ERG used a different procedure to account for measurement variability that is based on us ing a single maximum minimum detection level (MDL) value for each individual subcategory data set. The pollutant-specific maximum MDL for each subcategory was then multiplied by 3 and compared to the final limit or UPL. If the 3 times MDL value was more than limit or UPL th e 3 x MDL value was used as the limit. This subcategory specific MDL approach assumes that each subcategory has its own unique method detection and practical quantitation limits that have been appropriately validated through independent method validation tes ting. This is certainly not th e case (and there is no record evidence to support it) and this is why as the EPA Method Detection Limit Guidance memorandum specifies that three times the pooled RDL (mean MDL) from all pollutant-specific subcategory data sets be used to properly acc ount for measurement variability or uncertainty.

The table below is a summary of the reporte d MDLs for all CISWI subcategories in the final CISWI Reconsideration Rule.

7 Memorandum from Eastern Research Group, Inc. to Toni Jones, U.S. Environmental Protection Agency, CISWI Emission Limit Calculations for Existing and New Sources for the Reconsideration Final Rule, Nov. 16, 2012 (EPA-HQ-OAR-2003-0119-2662).ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

15 Facility Name Subcategory Unit ID Pollutant Run No. Flag ND Raw Data (ppmdv7)
TXInternationalPaperQuee nCity EG Biomass ERU PB02 Hydrogen Chloride (HCl) 3 ND 1 0.0425

MEPioneerPlastics EG Liquid Gas ERU Boiler #5/Therm al Oxidizer Hydrogen Chloride (HCl) 2 BDL 1 4.404

MEPioneerPlastics EG Liquid Gas Boiler #5/Therm al Oxidizer Hydrogen Chloride (HCl) 3 BDL 1 4.38

ILFlintHillsResources EG Incinerator HB-2301 Hydrogen Chloride (HCl) ILFlintHillsResourcesI PAHCLT1aR1 ND 1 0.1

ILFlintHillsResources EG Incinerator HB-2301 Hydrogen Chloride (HCl) ILFlintHillsResourcesI PAHCLT1aR2 ND 1 0.1

ILFlintHillsResources EG Incinerator HB-2301 Hydrogen Chloride (HCl) ILFlintHillsResourcesI PAHCLT1aR3 ND 1 0.1

ILFlintHillsResources EG Incinerator HB-2301 Hydrogen Chloride (HCl) ILFlintHillsResourcesI PAHCLT3R1 ND 1 0.035

ILFlintHillsResources EG Incinerator HB-2301 Hydrogen Chloride (HCl) ILFlintHillsResourcesI PAHCLT3R2 ND 1 0.036

ILFlintHillsResources EG Incinerator HB-2301 Hydrogen Chloride (HCl) ILFlintHillsResourcesI PAHCLT3R3 ND 1 0.037
WVDuPontWashingtonWor ks EG Incinerator T71ME Hydrogen Chloride (HCl) WV0002HCLT3R1 ND 1 0.00009
WVDuPontWashingtonWor ks EG Incinerator T71ME Hydrogen Chloride (HCl) WV0002HCLT3R2 ND 1 0.00008
WVDuPontWashingtonWor ks EG Incinerator T71ME Hydrogen Chloride (HCl) WV0002HCLT3R3 ND 1 0.00016

TXAshGroveMidlothian EG Kiln Kiln 3 Hydrogen Chloride (HCl) 1 ND 1 0.47

TXAshGroveMidlothian EG Kiln Kiln 3 Hydrogen Chloride (HCl) 2 ND 1 0.47

TXAshGroveMidlothian EG Kiln Kiln 3 Hydrogen Chloride (HCl) 3 ND 1 0.47

TXHolcimMidlothianPlant EG Kiln Kiln 2 Hydrogen Chloride (HCl) 1 ND 1 0.46

TXHolcimMidlothianPlant EG Kiln Kiln 2 Hydrogen Chloride (HCl) 3 ND 1 0.41

TXHolcimMidlothianPlant EG Kiln Kiln 2 Hydrogen Chloride (HCl) 2 ND 1 0.47

TXHolcimMidlothianPlant EG Kiln Kiln 2 Hydrogen Chloride (HCl) 1 ND 1 0.42

TXHolcimMidlothianPlant EG Kiln Kiln 2 Hydrogen Chloride (HCl) 2 ND 1 0.42

TXHolcimMidlothianPlant EG Kiln Kiln 2 Hydrogen Chloride (HCl) 3 ND 1 0.43
Mean ND = RDL 0.632
3 x RDL= 1.89ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

16

A/75482164.1/3392501-0000343418 In accordance with EPA Method Detection Limit Gu idance, the RDL should be determined from the mean value of the pooled MD Ls reported in all subcategory data sets. The mean detection limit value or RDL for the pooled data set is 0.63 ppmdv7. Multiplying the pooled RDL value by the factor of 3 provides a minimum emissi on HCl limit value of 1.9 ppmdv7 (or if rounded up 2 ppmdv7) that should be used for the Bioma ss ERU subcategory HCl to measure variability relative to compliance determinations is properly addressed. 8 The range of the detection limit values in the table shows the disparity in meas urement uncertainty and the importance of using a pooled data set from all subcategories as conf irmed in EPA’s method detection limit guidance memorandum. The maximum mini mum detection limit value for Liquid/Gas ERU subcategory was 4.40 ppmdv7 for a source that combusts a relati vely clean fuel (no acid gas controls) but has SNCR for NOx control. Ammonium Chloride , a byproduct of SNCR ammonia reagent reacting with HCl, is a known interferen t in Method 26/26A -- the EPA HCl test method. This same potential interference exists for all ERU subcategory sources equipped with SNCR and similar high MDL could be expected during any compliance test. Of course there are a number of other different reasons that the MDL for the liqui d/gas ERU subcategory was high, including field sampling error, laboratory analytical tec hnique difference and other unknown emission interferences that all could be encountered by all other sources in different subcategories. The disparity in method detection limit values among ERU subcategories verifi es that EPA’s method detection limit guidance is the correct approach and must be followed. As a result of ERG’s departure from EPA’s own method detection li mit guidance a representative pooled HCl RDL was not calculated and measurement variability for Biomass ERU subcategory was based on a single maximum MDL value that is clearly not representative of the best performing testing companies and laboratories using the most sensitiv e analytical procedures. As such, EPA has not properly accounted in the record for measurem ent uncertainty in the final CISWI HCl limit for the Biomass ERU category. Thus, Bioma ss ERUs will not be able to demonstrate compliance with final limits.

III. EPA SHOULD ALSO RECONSIDER TH E TRIGGERS FOR WHEN A UNIT MAY BECOME A CISWI UNIT, OR, ALTERNA TIVELY, REINITIATE A RULEMAKING.

A. EPA Should Reconsider Requirement s for a Six-Month Minimum CISWI Applicability Period and A Six-Month Waste to Fuel Switch Notification.

In its Notice of Reconsideration of the 2011 CISWI Rule, EPA a ppropriately included reconsideration of establishment of limitations on fuel switching provisions for CISWI Units. 76 Fed. Reg. at 15,267. These provisions are intended to address facilities that intentionally switch between biomass waste and biomass fuels in their combustion units. Although the combustion units are the same, different standards apply depe nding on the material being combusted. If it is “waste” it must meet the CISWI MACT requireme nts, which, as illustrated above, are more stringent than the Boiler MACT requirements th at would otherwise apply. Significantly, EPA includes a six month requirement by which parties must continue to be subject to the CISWI MACT if it burns “waste.” The public commente d that the requirements, which are only in the

8 The CISWI EG subcategory detec tion limits include three detection limits values (for WV DuPont Washington Works) reported at less than 0.0002 ppm or ppb levels that are two orders of magnitude below the next lowest detection limit. (These values shou ld be reviewed or the units checked.)ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

17 CISWI provisions, are overly burdensome, particul arly where the party did not intentionally or knowingly combust waste.

Despite requests to address this issue, in the final CISWI Reconsideration Rule, EPA still would potentially require a unit th at inadvertently combusted solid waste to be a CISWI Unit for at least six months, regardless of any intent by the operator. By all accounts, these units are not waste incinerators. A requirement that a unit which does not burn solid waste can still be a CISWI is contrary to the law and arbitrarily li mits the ability of the unit’s owner/operator to switch fuels.

Such a requirement would also present catastrophic economic c onsequences to an operator in the event even sm all amounts of solid waste are burned unintentionally. For example, combustion of material furnished by c ontractor suppliers and reasonably believed by the combustion facility operator to be non-waste fuel on the basis of contract conditions, inspections, and other assurance mechanisms, but later shown to be or contain a solid waste, could require a minimum 6-month shutdown of the unit in order to avoid operating in noncompliance with the CISWI emission standards. The combustion unit operators, and not fuel suppliers, would bear all regula tory responsibility, pe nalties and damages for inadvertent waste combustion.

The NHSM rule is in itself new, untested, and in many cases unclear, making the required self-determinations challengeable by agencies and third parties. In addition, failure to keep records required by 40 C.F.R. § 60.2175(v) and 40 C.F.R. § 60.2740(u) could also make the unit a CISWI for six months and in the likely circ umstance that the boiler could not meet CISWI MACT standards the unit would be shut down for six months.

Circumstances like these warrant more reas oned waste-to-fuel switch ing provisions. In its response to comments, EPA me rely states the source should wo rk with the dele gated authority to ensure compliance with the appropriate standa rd if it believes it has inadvertently combusted wastes. (EPA-HQ-OAR-2003-0119-2686 at 60). Bu t, given the disconnect between the final Boiler MACT and the CISWI MACT, the potential fo r reasonable parties to disagree as to the definition of “waste” in these cases, and the st ark differences between the Boiler MACT and the CISWI MACT requirements, this is not a reasonabl e response. A facility would likely have to shut down for a minimum of six months to avoi d the potential for a finding of ongoing violations of the CISWI MACT. Moreover, EPA acknowledge s that “regulatory procedures are necessary to guide sources through the changes in applicab ility that may result.” 76 Fed. Reg. at 15,174, cited in EPA-HQ-OAR -2003-0119-2686 at 60.

EPA also states that “the source is best suited to developing site specific material handling procedures.” (EPA-HQ-OAR-2003-0119-2686 at 60). But, in the cases cited above, the facility can take numerous precautions, and it may not be able to make such a determination until it is too late. A facility can only take so many steps without testing or analyzing each pound of material, which is simply not practical or feasible. EP A should provide that the CISWI requirements are not triggered in th ese situations, so long as the s ource takes reasonable steps to ensure its suppliers are not incl uding waste in the fuel materi al being purchased. EPA could require evidence that the owner or operator of the facility has established contractualERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

18 requirements or other appropriate notification or in spection procedures to assure that wastes are not received at or burned in such facility. Ther e is precedent for such an exclusion under RCRA, 42 U.S.C. § 6921(i).

The rationale in EPA’s response to comment s was not provided in the proposed CISWI Reconsideration Rule. As descri bed above, this rationale also is incorrect. Thus, EPA should reconsider it waste-to -fuel switch provisions.

B. EPA Must Correct its Definition of “CISWI Unit” to Clarify that a Unit Does Not Become a CISWI Unit Merely Based on Failure to Retain Record.

The CISWI definitions in 40 C.F.R. § 60.2265 and 40 C.F.R. § 60.2875 each contain a provision that appears to make an operating combustion unit a CISWI Unit if it burns certain non-traditional fuel materials and fails to keep r ecords. For example, 40 C.F.R. § 60.2275 states, in relevant part:

Commercial and industrial solid waste incineration (CISWI) unit means any distinct operating unit of any commercial or industrial facility that combusts, or has co mbusted in the preceding 6 months, any solid waste as that term is defined in 40 CFR part 241. If the operating unit burns materials othe r than traditional fuels as defined in § 241.2 that have been discarded, and you do not keep and produce records as required by § 60.2175(v), the operating unit is a CISWI unit. ...

(Emphasis added). CISWI Units are regulated under Section 129. As noted above, Section 129 is limited to units that combus t solid waste, 42 U.S.C. § 7429(g )(1), and a boiler which burns no solid waste cannot be a CISWI Unit merely by virtue of a recordkeeping failure.

The Boiler MACT Rule has no corresponding provision; r ecordkeeping requirements therein do not stipulate that th e combustion unit would become a CISWI Unit in the event of a recordkeeping deviation. An owner/operator operating a boiler s ubject to the Boiler MACT Rule because it burns only traditional fuels or non-was te fuels would have no reason to believe that the CISWI rule would even apply and may be una ware that he would be subject to the CISWI MACT standards in the event of a recordkeeping fa ilure. That issue would instead be resolved in the context of a potential enfor cement action for failing to comply with the applicable Boiler rules.

As noted above, a particularly harsh effect of the definition is that once a unit becomes a CISWI the switch provisions in the rule require the unit to remain a CISW I for 6 months. So in the likely event that a boiler cannot meet the stringent biomass ERU em ission standards, the disproportionate effect of a r ecordkeeping error is to shut down the unit for six months.

Automatic classification of a combustion unit as a CISWI as a result of a recordkeeping failure would be an extreme penalty for an administrative matter, and constitutes an unreasonable exercise of EPA’s discretion. In comments to the proposed CISWI Reconsideration Rule, commenters objected to the requir ement as overly burdensome. ( See, e.g., EPA-HQ-OAR-2003-ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

19 0119-2628). EPA’s response purports to have ade quately revised the definition so that a recordkeeping failure does not make the unit a CISWI Unit:

In regards to the definition for CISWI unit, the definition has been revised so that failure to maintain a record does not, by itself, make a material a solid waste. We further note that the similar recordkeeping requirement is included in the boiler rule for units that are combusting a material that received a non-waste determination. This record assists implementing agencies in clarifying applicability for the unit. The same types of records may be used to fulfill both the CISWI and boiler recordkeeping requirement, so we disagree th at this is an undue burden.

(EPA-HQ-OAR-2003-0119-2686 at 276). But, notwith standing this discussion, EPA made no changes to the definition in the final rule to address this issue. Thus, EPA should make the necessary technical amendment to the regulations to reflect th e discussion in its response to comments. Alternatively, EPA should grant rec onsideration of its CISWI Unit definition to delete the provision which causes a unit to become a CISWI Unit by virtue of a failure to keep compliant records.

IV. CONCLUSION

For the foregoing reasons, EPA must recons ider the definition of “CEMS data during startup and shutdown,” because th e final rule improperly limits, in deference to the proposed rule, the startup period to the time period from cold start “until waste is fed into the unit,” and the final hydrogen chloride (“HCl”) emissions limit for biomass ERUs, because EPA did not properly address the representativ e detection level for measuring HCl emissions. The public did not have adequate opportunity to comment on these significant changes, and the final determinations are arbitrary and capricious a nd otherwise not in accordance with the CAA.

In addition, EPA should rec onsider the six-month fuel switching provisions and the onerous provision in the definition of “CISWI un its” which states that failure of operating units such as boilers to keep compliant records on non-traditional material s burned automatically makes the unit a CISWI. Alternatively, ERC reque sts that EPA treat this petition as a petition for rulemaking and initiate new proceedings to make amendments to these provisions.

* * *ERC Petition for Reconsideration CISWI Reconsideration Rule April 8, 2013

20 We appreciate the agency’s consideration of these important issues , and look forward to working with you to resolve them.

Please do not hesitate to cont act the undersigned if you have any questions regarding this petition.

Respectfully submitted,

Ted Michaels Energy Recovery Council