1730 RHODE ISLAND AVENUE, NW 

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WASHINGTON, DC 20036 

WWW.ENERGYRECOVERYCOUNCIL.ORG

April 8, 2013 

VIA ELECTRONIC MAIL AND HAND DELIVERY 

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 Amendments, Final Rule, 

78 Fed. Reg. 9112 (Feb. 7, 2013) 

Dear Acting Administrator Perciasepe, 

 On behalf of the Energy Recovery Council, please find enclosed a Petition for 

Reconsideration of final agency action entitled Commercial and Industrial Solid Waste 

Incineration Units: Reconsideration and Final Amendments, 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 forward to working with you to 

resolve the issues outlined in the petition. 

 Please do not hesitate to contact me if you have any questions regarding the 

attached petition. 

 Best regards, 

 Ted Michaels 

 Energy Recovery Council
The 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 Information 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 Radiation Law Office 

 Office of General Counsel (Mail Code 2344A) 

 Environmental Protection Agency 

 1200 Pennsylvania Avenue, NW 

 Washington, DC 20004 
BEFORE THE ADMINISTRATOR 

UNITED STATES ENVIRONMENTAL 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 ENERGY 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 (“EPA” or “Agency”) to reconsider portions of 

EPA’s final rule entitled “Commercial and Industrial Solid Waste Incineration Units: 

Reconsideration and Final Amendments; Non-Hazardous 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 March of 2011, EPA promulgated Standards of 

Performance for New Stationary Sources and Emissions Guidelines for Existing Sources: 

Commercial and Industrial Solid Waste Incineration 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 companies 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 technology equipped with state-of-theart pollution control systems. ERC joined with a coalition of associations 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 aspects 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 Pollutants for Major Sources: Industrial, 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-Hazardous 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 CISWI and Boiler MACT Rules with respect to non-hazardous secondary materials burned 

as fuels or used in combustion units. EPA also granted reconsideration with respect 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 final 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 purpose 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-steady-state operation that occurs 

after waste is first fired to the unit. 

 Second, EPA must reconsider the final hydrogen chloride (“HCl”) emissions limit for 

biomass Energy Recovery Units (“ERUs”) because it did not properly address the representative 

detection level for measuring HCl emissions. EPA 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 units, and must be reconsidered. 

 Third, EPA should reconsider the requirements for a six-month minimum CISWI 

applicability period and a six-month waste-to-fuel switch notification and the onerous provision 

in the definition of “CISWI units” which states that failure of operating units such as boilers to 

keep compliant records on non-traditional materials burned automatically makes the unit a 

CISWI. While the public, including ERC, commented on these provisions, EPA has not 

provided adequate support for its 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, potentially 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 avoid the more stringent 

CISWI requirements. On the CISWI unit definition, 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 Reconsideration Rule is the same as that in the proposed rule. The 

following comparison of the HCl standards in the Boiler MACT and the CISWI Reconsideration 

Rule illustrate the stark difference in requirements 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, fundamentally, 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 corrections to the definition. To the extent 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 petition 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 control technology (“MACT”) for such units. 

42 U.S.C. § 7429. EPA first issued emissions standards 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 CISWI Rule”). A challenge to the 2000 CISWI Rule was filed 

with respect to, among other things, EPA’s definition of CISWI Units, and EPA voluntarily 

agreed to reconsider the definition. 

 On September 22, 2005, EPA published a final rule reflecting its decisions 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 Definitions Rule, EPA defined the term “commercial 

or industrial solid waste incineration unit” to mean a combustion unit that combusts “commercial 

or industrial waste,” which EPA defined to mean waste combusted at a unit that does not recover 

thermal energy from the combustion for a useful purpose. EPA’s definition was again 

challenged, and the U.S. Court of Appeals for the 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 units subject to its standards any facility that 

combusts any commercial or industrial solid waste material at all -- subject 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 aspects 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 rules for which we believe further public comment is 

 

2

 The 2011 CISWI Rule defined a CISWI unit as “any distinct operating unit of any commercial or industrial 

facility that combusts, or has combusted in the preceding 6 months, any solid waste as that term is defined in 40 

CFR part 241. If the operating unit burns materials other than traditional fuels as defined in § 241.2 that have been 

discarded, and you do not keep and produce records as required by § 60.2175(v), the material is a solid waste and 

the operating unit is a CISWI unit. While not all CISWI units will include all of the following components, a 

CISWI unit includes, but is not limited to, the solid waste feed system, grate system, flue gas system, waste heat 

recovery equipment, if any, and bottom ash system. The CISWI unit does not include air pollution control 

equipment or the stack.” 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 that we propose to modify after more 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 period for public comment or may have been 

impracticable to comment upon,” and “that reconsideration is appropriate 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 published 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 reconsideration of the 2011 CISWI Rule, 

78 Fed. Reg. 9112. Among other things, the CISWI Reconsideration Rule purports to make 

“technical corrections to the final rule to clarify definitions, references, applicability and 

compliance issues.” Id. at 9112. EPA also made revisions to the NHSM Rule “to clarify several 

provisions in order to implement the non-hazardous secondary materials 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 certain 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 Governing Reconsideration 

 Under CAA Section 307(d)(7)(B), the Administrator is required to convene a proceeding 

to reconsider a final rule upon a demonstration that 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 through a statement of its 

basis and purpose, and to give the public a meaningful 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 terms 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 articulate 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. 1982) (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 exposure 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 support 
ERC 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 assured that its promulgation process as a whole and in each of its 

major aspects provides a degree of public awareness, understanding, and participation 

commensurate with the complexity and intrusiveness of the resulting regulations.”) (citations 

omitted). Moreover, the mere fact that EPA’s final 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 complexity of the issues and 

the clear concerns of the public as to the impacts of the CISWI Rule, it was incumbent on EPA to 

ensure that it provided adequate notice and a meaningful 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 articulated at the time of the 

proposed reconsideration rule), it was impracticable for the public to comment on these 

determinations. As further described below, EPA failed to provide adequate notice and 

opportunity for comment with respect to its new limitation truncating the startup period in the 

definition of CEMS during startup and shutdown 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 reconsider these aspects of the final rule as well. 

Finally, EPA indicated that it made changes to the 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 EPA 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 oxygen content. In response to concerns raised 

with respect to the 2011 CISWI Rule, the proposed 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 when 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 EPA 
ERC 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 reconsideration rule, EPA made revisions to the 

proposed definition of “CEMS data during startup and shutdown” to address concerns raised 

regarding variation among units in reaching stable operating conditions that may not be have 

been accurately reflected in the proposed definition. 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 period in a manner that 

does not reflect actual operations of a combustion unit or the time required to ensure the unit, 

including the pollution control equipment, has reached proper operating conditions. This revised 

definition raises new concerns about 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 emission 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 the definition of CEMS 

data during startup and shutdown, extending startup duration to include the period of transitional 

operation that occurs after waste is first fed into the unit. 

1. Because EPA did not provide any notice 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 CISWI Rule monitoring requirements for CO 

in its Notice of Reconsideration. 76 Fed. Reg. 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 compliance 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 using CEMS data, incorporating a newly defined 

term, as follows: 

CEMS data during startup and shutdown means carbon monoxide 

CEMS data collected during the 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 during 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 pertains to ERUs in three important ways. First, based on public 

comment, it extended the application of the CEMS data to all CEMS-monitored pollutants, not 

just CO. 78 Fed. Reg. at 9128. Second, it lengthened the startup and shutdown periods to as 
ERC 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 recognize 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 collected during the first hours of 

operation of a CISWI unit startup from a cold start until waste is 

fed to the unit and the hours of operation following the cessation of 

waste material being fed to the CISWI unit during a unit shutdown. 

For each startup event, the length of time that CEMS data may be 

claimed as being CEMS data during startup must be 48 operating 

hours or less. For each shutdown event, the length of time that 

CEMS data may be claimed as being CEMS data during shutdown 

must be 24 operating hours or less. 

 (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 continuous feed is introduced into the kiln, at which 

time the kiln is in normal operating mode. Shutdown begins when 

feed to the kiln is halted. 

78 Fed. Reg. at 9205 (emphasis added). The language in the final definition which ends the 

startup period at first waste feed was not noticed in the proposed reconsideration 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. Cir. 1995) (“More to the point, however, 

this court has made it clear that an agency may not turn the provision of notice into a 

bureaucratic game of hide and seek.”) (citations omitted). While the public commented on the 

fact that EPA needed to provide for a longer startup period than four hours, 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 window. In addition, EPA did not include a similar limitation for 

waste-burning kilns, stating (without any record support) that “unlike other CISWI units” wasteburning kilns startup is dependent on 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 period 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 central 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 start to account for the potential 

variability in CO emissions. The four hours was based on a limited 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 ensure proper functioning of the unit and of the 

pollution control technologies utilized. That EPA understood the time needed to ensure proper 

startup of ERUs varies across units and that allowing for adequate time is important is evidenced 

by EPA’s changes in the final definition. This included extending the applicable time frames in 

the definition, and applying the definition to other pollutants, not just CO. But, while taking 

certain steps in the right direction, the final rule renders these improvements illusory by adding a 

new limitation that would end the startup period at first waste fire. This limitation, which was 

added for the first time in the final rule, undermines the flexibility EPA’s amendments were 

intended to provide. Since the limitation undermines 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 considered 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, including that the startup and shutdown provisions 

needed to consider that the startup and shutdown 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 waste 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 commences when the affected facility begins the continuous 
ERC Petition for Reconsideration 

CISWI Reconsideration Rule 

April 8, 2013 

9 

waste is fed into the unit; nor does it end when subsequently both auxiliary fuel and waste is 

introduced into the unit. It doesn’t even end when operating temperature alone is reached. 

Startup functionally ends when stable combustion conditions can be maintained on the unit, 

auxiliary fuel is no longer required, and air pollution 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 contrary to the request, 

without explanation. That EPA ignored ERC’s comments is evident 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 technical issues relating to 

startup of a combustion unit. For both ERUs and waste-burning kilns, 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 key determination should be when normal operating 

temperature is reached such that the unit and 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 new 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 violation 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. 2004) (“[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 affirmative burden of promulgating and explaining a 

nonarbitrary, non-capricious rule,’ and therefore must justify its basic ‘assumption[s] even if no 

one objects ... during the comment period.’”); Small Refiner Lead Phase-Down Task Force v. 

EPA, 705 F.2d 506, 521 (D.C. Cir. 1983) (finding EPA cannot “ignore the procedural 

requirements of §307(d),” even if the agency “gives 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 emissions standards failed to accurately 

reflect what has been achieved in practice during 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 periods 
ERC 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 recognizes the technology limitations of combustion 

and air pollution control equipment. See “Petition for Administrative Reconsideration and for 

Amendment of the Industrial Boiler MACT, Industrial Boiler GACT, and CISWI Rules” filed 

May 9, 2011, item #8 for a description of the technical issues. (EPA-HQ-OAR-2003-0119-

2502). EPA stated that “[i]f industry 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-OAR-2003-0119-2686 at 169). ERC did 

in fact provide these data. EPA nonetheless again changed the method of compliance in the final 

rule, and, moreover, substantially lowered the emissions standard for 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 standard, even though the standard itself has not 

changed.”) (citations omitted). Thus, it is clear that EPA’s final CISWI Reconsideration Rule 

does not address the emissions during this new startup period, and that the final rule includes CO 

and HCl standards of significantly greater stringency than EPA proposed. 

 In particular, failure to include the period of increased emissions during the transition 

from auxiliary fuel to the waste fuel jeopardizes the ability for units to meet the standard. Table 

A-1 in Appendix A of ERC’s comments, included below, shows that the corrected CO emissions 

for the 4-hour period following first waste feed 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, attached 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 scheduled and unscheduled outages. Using these 

data for 7 startups totaling 4% of the operating hours during a 30-day period the startup CO 

emissions would contribute 140 ppmdv7 toward the 30-day average, or half the limit, without 

even considering any emissions during normal operation. The fact that EPA lowered the 

biomass ERU CO limit in the final CISWI Reconsideration 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 operators, 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 for 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 subcategories for ERUs in the 2011 CISWI Rule. 76 Fed. Reg. at 80,457-

80,458. In the proposed CIWSI Reconsideration Rule, EPA explained that it would continue to 

subcategorize biomass ERUs with respect to the standards for certain pollutants, requesting 

comment on whether it should also promulgate separate HCl and Hg standards. Id. EPA also 

revised the dataset used for determining the standards, 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 achieved 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 guidance, it was impracticable for the 

public to comment on the final HCl limits. 

 The HCl limit in the final CISWI Reconsideration Rule is not a logical outgrowth from 

the proposal. In the proposal, EPA did not subcategorize 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 opportunity to comment on the new standards, especially since it is 

not practicable for commenters to predict the effect of a possible subcategorization change on the 

standard. EPA clearly stated that it was not reconsidering its methodology on reconsideration. 

In any event, in determining the final HCl 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 emission limit. The public could not have been aware 

that EPA would deviate from this guidance in the final rule. Thus, it was impracticable for the 

public to raise this objection. 

2. The concerns regarding the HCl limit are of central relevance to the final 

rule because, in short, it is arbitrary 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 inherent 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 limits in setting MACT standards. EPA’s failure to take this 

into account renders the limit arbitrary and capricious, and thus the objection is of central 

relevance to the rule. 

 A performance standard under the CAA 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 achievable over time; “a distinction must be made 

between an emission level that has been ‘observed’ 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 what 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 variability in emissions data such as 

testing variability. Setting aside whether EPA properly noticed the possibility that it would 

subcategorize ERUs and establish different HCl standards, the final HCl limit fails to adequately 

account for variability for these units. 

 As EPA is well aware, individual 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, including differences in measurement detection levels. 

The Support and Related (SR) Material Document, entitled “CISWI Emission Limit Calculations 
ERC 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 supporting information including several 

appendices that contained the revised data bases and statistical calculations used to determine the 

final emission limits for all CISWI subcategories. Appendix G -- Method Detection Limit 

Guidance 12/13/116

 -- 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 RDL evaluation procedure is to identify all of the 

available reported pollutant-specific method detection limits for 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 mean value of method detection limits. As stated in the EPA 

memorandum “by limiting the data set to those tests 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 inordinately high method detection level (e.g., the sample volume was 

too small, the laboratory technique was insufficiently sensitive, or the procedure for determining 

the minimum value for reporting was other than the detection level). We then call the resulting 

mean of the method detection levels as the representative detection level (RDL) as characteristic 

of accepted source emissions measurement performance.” Id. (emphasis added). 

 The second step in the RDL evaluation process 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 multiplication factor of three (3) to the RDL 

accounts for imprecision in the analytical method 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 calculated 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 for all final regulatory 

subcategories (use the pooled test data) and, importantly to apply the same pollutant-specific 

mean RDL value to all subcategories. 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 applying 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 detection 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 contractor ERG did not pool the minimum 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 using 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 the 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 testing. This is certainly not the 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 account for measurement variability or uncertainty. 

 The table below is a summary of the reported 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= 1.89 
ERC Petition for Reconsideration 

CISWI Reconsideration Rule 

April 8, 2013 

16 

A/75482164.1/3392501-0000343418 

In accordance with EPA Method Detection Limit Guidance, the RDL should be determined from 

the mean value of the pooled MDLs 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 emission HCl limit value of 1.9 ppmdv7 (or if rounded up 

2 ppmdv7) that should be used for the Biomass 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 measurement uncertainty and the importance of using a 

pooled data set from all subcategories as confirmed in EPA’s method detection limit guidance 

memorandum. The maximum minimum detection limit value for Liquid/Gas ERU subcategory 

was 4.40 ppmdv7 for a source that combusts a relatively 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 interferent 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 liquid/gas ERU subcategory was high, including field 

sampling error, laboratory analytical technique 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 verifies 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 limit 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 sensitive analytical procedures. As such, EPA has 

not properly accounted in the record for measurement uncertainty in the final CISWI HCl limit 

for the Biomass ERU category. Thus, Biomass ERUs will not be able to demonstrate 

compliance with final limits. 

III. EPA SHOULD ALSO RECONSIDER THE TRIGGERS FOR WHEN A UNIT MAY 

BECOME A CISWI UNIT, OR, ALTERNATIVELY, REINITIATE A RULEMAKING. 

A. EPA Should Reconsider Requirements 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 appropriately 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 depending on the material being combusted. If it is 

“waste” it must meet the CISWI MACT requirements, which, as illustrated above, are more 

stringent than the Boiler MACT requirements that 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 commented that the requirements, which are only in the 

 

8

 The CISWI EG subcategory detection 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 should be reviewed or the units checked.) 
ERC Petition for Reconsideration 

CISWI Reconsideration Rule 

April 8, 2013 

17 

CISWI provisions, are overly burdensome, particularly 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 that 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 limits the ability of the unit’s owner/operator to 

switch fuels. 

 Such a requirement would also present catastrophic economic consequences to an 

operator in the event even small amounts of solid waste are burned unintentionally. For 

example, combustion of material furnished by contractor 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 regulatory responsibility, penalties 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 circumstance that the boiler could not meet CISWI 

MACT standards the unit would be shut down for six months. 

 Circumstances like these warrant more reasoned waste-to-fuel switching provisions. In 

its response to comments, EPA merely states the source should work with the delegated authority 

to ensure compliance with the appropriate standard if it believes it has inadvertently combusted 

wastes. (EPA-HQ-OAR-2003-0119-2686 at 60). But, given the disconnect between the final 

Boiler MACT and the CISWI MACT, the potential for reasonable parties to disagree as to the 

definition of “waste” in these cases, and the stark differences between the Boiler MACT and the 

CISWI MACT requirements, this is not a reasonable response. A facility would likely have to 

shut down for a minimum of six months to avoid the potential for a finding of ongoing violations 

of the CISWI MACT. Moreover, EPA acknowledges that “regulatory procedures are necessary 

to guide sources through the changes in applicability 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. EPA should provide that the CISWI 

requirements are not triggered in these situations, so long as the source takes reasonable steps to 

ensure its suppliers are not including waste in the fuel material being purchased. EPA could 

require evidence that the owner or operator of the facility has established contractual 
ERC Petition for Reconsideration 

CISWI Reconsideration Rule 

April 8, 2013 

18 

requirements or other appropriate notification or inspection procedures to assure that wastes are 

not received at or burned in such facility. There is precedent for such an exclusion under RCRA, 

42 U.S.C. § 6921(i). 

 The rationale in EPA’s response to comments was not provided in the proposed CISWI 

Reconsideration Rule. As described 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 records. 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 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 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 combust 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; recordkeeping requirements 

therein do not stipulate that the combustion unit would become a CISWI Unit in the event of a 

recordkeeping deviation. An owner/operator operating a boiler subject to the Boiler MACT Rule 

because it burns only traditional fuels or non-waste fuels would have no reason to believe that 

the CISWI rule would even apply and may be unaware that he would be subject to the CISWI 

MACT standards in the event of a recordkeeping failure. That issue would instead be resolved in 

the context of a potential enforcement 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 CISWI for 6 months. So in 

the likely event that a boiler cannot meet the stringent biomass ERU emission standards, the 

disproportionate effect of a recordkeeping 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 requirement 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 adequately 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 that this is an undue burden. 

(EPA-HQ-OAR-2003-0119-2686 at 276). But, notwithstanding 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 the discussion in its response to 

comments. Alternatively, EPA should grant reconsideration 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 reconsider the definition of “CEMS data during 

startup and shutdown,” because the 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 representative 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 and otherwise not in accordance with the CAA. 

 In addition, EPA should reconsider the six-month fuel switching provisions and the 

onerous provision in the definition of “CISWI units” which states that failure of operating units 

such as boilers to keep compliant records on non-traditional materials burned automatically 

makes the unit a CISWI. Alternatively, ERC requests 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 contact the undersigned if you have any questions regarding this 

petition. 

Respectfully submitted, 

Ted Michaels 

Energy Recovery Council